Justin Chapanduka v The State

### Preamble
1
HCMTJ 39/24
HCMTCR 1232/24
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JUSTIN CHAPANDUKA

versus

THE STATE

HIGH COURT OF ZIMBABWE

MUZENDA J

MUTARE, 2 September 2024

IN CHAMBERS

MUZENDA J: This is a chamber application for leave to appeal out of time. Where applicant seeks the following relief:

“IT IS ORDERED THAT:

Application for leave to file appeal out of time be and is hereby granted.

Applicant be and is hereby granted leave to file his appeal within 5 days of granting of this order.

There shall be no order as to costs.”

The conviction and sentence were pronounced at Rusape Magistrate’s Court on 17 July 2023. Applicant intends to appeal against both conviction and sentence and to him he enjoys bright prospects of success. Applicant was convicted of contravention of s 52(2) of the Road Traffic Act [Chapter 13:11] commonly known as “negligent driving.” On 18 December 2022 applicant had allegedly encroached to the right side of the road resulting in a side swipe with another heavy truck and a number of passengers were injured seriously. The particulars of negligence spelt out by the respondent were only 3: failure to keep a proper look out in the circumstances, travelling at an excessive speed under the circumstances and failure to stop or act reasonably when accident seemed imminent.

On 14 July 2023 he pleaded guilty and the court put to him all the essential elements of the offence. Applicant admitted all of them. He was properly convicted. Before sentence, the trial court explained to the applicant the aspects of special circumstances in traffic offences and applicant confirmed that he had none to offer, he was then sentenced to pay a fine of

US$400-00 or equivalent in default of payment 3 months he was prohibited from driving for 2 years in terms of s 52(4)(c) of the Road Traffic Act supra and his driver’s licence was automatically cancelled. This was on 17 July 2023.

In his affidavit attached to this application, applicant contends that he was ill-advised by an unidentified court official at Rusape to plead guilty so as to get a non-custodial sentence and he did so out of ignorance. According to him, he witnessed the same court official approaching the trial Magistrate in court and he valued the advice as true. As such that is why he unhesitatingly admitted all the essential elements of the offence. However the trial Magistrate did not ask applicant the specifics of the accident, applicant got to understand better when the trial court was explaining the meaning of special circumstances. Applicant blames the trial court for failing to explain the essential elements of the offence in a manner calculated to establish the genuineness of the plea of guilty, moreso where one is not legally represented. Applicant added that once applicant spoke of “accident occurring without intention” the trial court had to stop and alter a plea of guilty to that of “Not guilty” and proceed to trial. Applicant admits driving into the middle of the road, but contends that he was evading a small car from the side road, this resulted in the swipe. This scenario to applicant constitutes a special circumstance. This is the basis upon which applicant believes he had bright prospects of success on appeal against both conviction and sentence.

The application is opposed by the state. The National Prosecuting Authority noted in its papers that from the date of sentence to the date of filing of this application it has been a period of a full year and according to applicant he has been facing financial spine to seek experts’ advice. To the respondent there is no error or misdirection on the trial court’s part for this court to impugn, whether on conviction or sentence. In principle, the respondent conceives no prospect of success on appeal which would warrant this court to use its discretion to grant the order sought by the applicant.

Disposition

It is now an established route in our law that in an application of this nature, applicant must clearly state facts pertaining to the (a) length of the delay, (b) the reason for the delay and (c) the prospects of success on appeal and (d) finality to litigation as well as the element of prejudice to the National Prosecuting Authority. (See the matter of Prosecutor General v Sikhala SC 116/20).

Applicant focused on the response he gave to the trial court, about not causing the accident “intentionally” and yells that the trial court should have immediately stopped the proceedings and alter the plea tendered to that of Not guilty. From p 20 of the record of proceedings, the court painstakingly explained the Constitutional rights of the applicant, right to legal representation, the charge, the facts, the essential elements, all were answered in the affirmative. After conviction, to the full appreciation of applicant, as it appears in his own founding affidavit, the court comprehensively covered what special circumstances are. On p 25 of the record, applicant unequivocally confirmed that “he encroached into oncoming traffic lane” and that was the proximate cause of the accident that subsequently led to applicant’s prosecution. That encroachment resulted in the collusion with the other truck. Traffic offences fall under the aspect of negligence and not mens rea or intentional cause of a mishap. Hence the issue of intentionally causing the accident had no bearing to the conviction and in my view its mentioning would not have triggered the court a quo to alter applicant’s plea. I am satisfied that the critical focus of this court is to look within the four corners of the record and decide whether applicant though a self-actor received a fair trial, whether the court followed the law procedurally in accordance with the provisions of s 271 of the Criminal Procedure and Evidence Act, [Chapter 9:07], where the court should explain all the essential elements of the charge. It is therefore my finding that the allegations of ill-advise raised by the applicant are ex-facie the record of proceedings and there is no supporting affidavit nor the identity of that “wise man” who advised applicant to plead guilty.

On pp 26-27 of the record, the trial magistrate capably in my view explained the meaning of special circumstances to the applicant and applicant indicated in response that there were none and was sorry for what he did. An explanation being given by the applicant of what constitutes special circumstances was not placed before the trial court for consideration so as to pose before this court whether the rejection or acceptance of such constituted a misdirection or error at law. The entire record shows no facts which may lay the basis for a finding of special circumstances.

I am not therefore satisfied that applicant has managed to lay out the pre-requisites or requirements for the relief sought, the chamber application for leave to appeal or for condonation is refused.