Effect of sentence on delay in trial or hearing appeal (Zimbabwe)
Delay in bringing to trial
In Dube & Anor 1989 (3) ZLR 245 (S) the court said that for justice to be seen to be done, the machinery of justice, as it grinds through police stations, the Attorney-General's Department and the courts of justice, must move expeditiously. In this case, where the accused spent over 4 years out of prison awaiting trial and the hearing of their appeals, it was held not to be in the interests of justice to send them to prison.
In Ruzario 1990 (1) ZLR 359 (S) X a police officer had been convicted of culpable homicide and sentenced to four months imprisonment with labour for killing three persons while driving negligently and under the influence of alcohol. There had been a delay of 4 years in bringing the case for trial. The appeal court declined to interfere with the prison sentence. Once it was apparent that the State was dragging its feet he ought to have taken appropriate steps to have asserted his right to have the matter dealt with within a reasonable period of time. He had not done so. In any event it was evident from the magistrate's judgment that he took into account the four year delay in his assessment of punishment and were it not for that feature, would have ordered the appellant to serve a far longer period of imprisonment. The appeal was dismissed.
In the case of Chakwinya 1997 (1) ZLR 109 (H) the court held that every person, deserving or otherwise, was entitled to the protection of s 18 of the Constitution, which includes the right to a fair trial within a reasonable time. The delay in this case had been extreme and the reason for it was inexcusable. The prejudice to the accused was such that had he been convicted and sentenced when he should have been, he would more than likely have been released by now. To impose the sentence that would normally be expected would be unconscionably prejudicial. It further held that it would be most inappropriate to hold against an unrepresented accused a failure to take assiduous steps to enforce his freedom. The accused was an unemployed communal land dweller who had never been advised of his rights. He was at the mercy of the system, and the system failed him. Elementary administrative checks would have revealed the accused's plight.
See also Kamusana S-110-89; Makoni S-9-90; Mlambo S-221-91.
Delay in hearing appeal
In Dzvaka S-47-92 almost four years had elapsed from the date when the appellant was sentenced to the day on which his appeal was held. This delay occurred because a substantial portion of the record of the proceedings went missing, necessitating postponements of hearings. The Supreme Court decided that the blame for the inordinate delay could not be attributed to the appellant. He could hardly consent to the appeal being heard with the record of the evidence incomplete. There was nothing he could have done to expedite the appeal. Even when the appeal was eventually argued many of the exhibits were unavailable, having apparently been destroyed by the police. Some reduction of the punishment imposed by the trial court was therefore warranted.
In the case of In Re Ndimande: Attorney-General v Ndimande 1992 (2) ZLR 259 (S) the facts were that in 1986 X had been convicted of theft by conversion and theft by false pretences. He was sentenced to a term of imprisonment. He served part of this sentence before being released on bail pending appeal. In 1989 the accused successfully applied to have the convictions and sentence set aside so that the case could be remitted for the adduction of further evidence. The Attorney-General consented to this application. The order remitting it for the hearing of further evidence could not be complied with, however, as the trial magistrate had left the service. The trial could thus not be resumed but could only start afresh. The court held that in view of the delay in the case it would be unfair to order that the trial start afresh. An order staying further proceedings in this matter was ordered by consent.
See also Makuyana HB-117-89; Gonese HH-218-89; Kaschula HH-220-89; Guvava HH-110-89; Kuzvarwa HH-12-90; Corbett S-33-90; Chilimanzi 1990 (1) ZLR 150 (H); Tagwireyi S-10-90; Mudadi S-125-90; Badze 1990 (1) ZLR 369 (S); Gujiral 1990 (1) ZLR 320 (H).
In Nyambo S-24-05 the appellant was sentenced to death for murder in October 1994, nearly a year after the coming into effect of the 13th amendment to the Constitution. This amendment provided that any delay in carrying out sentence of death should not be treated as a violation of the convicted person's right under s 15 of the Constitution (which prohibits inhuman or degrading punishment or treatment). He noted an appeal on the appropriate prison documents, but for reasons unexplained the documents did not reach the court for another 10 years. It was argued that the delay amounted to a violation of the appellant's fundamental rights under s 15(1) of the Constitution and that the sentence should be altered to life imprisonment. It was held that in view of the provisions of the amending Act, which came into effect before the appellant was sentenced, he was not entitled to the relief he was seeking.