PROSECUTOR-GENERAL, ZIMBABWE v CHINEMBIRI

HIGH COURT, BULAWAYO

[Application for Leave to Appeal against Acquittal HB 125-16]

May 17 and 19, 2016

MAKONESE J

Appeal  –  Criminal matter  –  Appeal by Prosecutor-General in terms of section 61 (b) of the Magistrates Court Act [Chapter 7:10]  – Time limits  –  Application for leave to appeal must be made within a reasonable time  –  Necessity to seek condonation for late filing of application.

Section 61 of the Magistrates Court Act [Chapter 7:10] permits the Prosecutor-General, with leave of a judge of the High Court, to appeal against acquittal of accused by a magistrate if dissatisfied with final judgment either on a point of law or if acquittal resulted from a view of the facts that could not be reasonably be countenanced. Although this provision does not prescribe any time periods for bringing such application, the overriding principle is that an accused is entitled to a fair hearing within a reasonable time as enshrined in s 69 of the Constitution of Zimbabwe Amendment (No 20) Act, 2013, which right encompasses the need for finality in litigation.

Held, that where there has been an inordinate delay in seeking the requisite leave, Prosecutor-General is not at liberty to come to court anytime he wishes and seek such leave against an acquittal, without first applying for condonation for late filing of application for leave to appeal.

Held, further, in dismissing the application for leave to appeal, that it was filed hopelessly out of time and no explanation was given for the delay.

Cases cited:

Attorney General v Lafleur & Anor 1998 (1) ZLR 520 (H), referred to

Prosecutor General v Mtetwa & Anor HH 82-16 (unreported), referred to

Legislation considered:

Constitution of Zimbabwe Amendment (No 20) Act, 2013, s 69

Magistrates Court Act [Chapter 7:10], s 61 (b)

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