Application for Leave to Appeal
NDOU J: We convicted the
three applicants of murder on 12 June 2009. I sentenced the
applicants to sixteen (16) years imprisonment. They noted an appeal
against both conviction and sentence. They now seek leave to appeal
to the Supreme Court.
It took long for the matter to be set down as the Attorney General's
office was unable to formulate its position. This was so because the
law officers who initially dealt with the matter are not in the
service.
Mr. Hove,
required the record of proceedings to be transcribed in order to read
it and thereafter formulate a position. The transcription of criminal
records has almost ground to a halt on account of unavailability of
human and other resources. The State did not consent to the
application nonetheless.
Mr. Nyoni,
for the applicants kept his own notes as he was involved throughout
the trial.
The approach in such an
application was clearly stated in our case law. It is trite that the
decision whether or not to grant leave to appeal against the verdict
depends on the prospects of success. The matter should be approached
on the basis, not of how good the prospects must be before leave is
granted, but of how poor they must be before it is refused. The
applicant should, therefore, be required to make out a reasonably
arguable case, in the sense of there being substance in the argument
- S v Mutasa
1988 (2) ZLR 4 (S); S v
Tengende 1981 ZLR 445
(S) of 447; S v Woods
and Others SC60-93;
and S v McGown
1995 (2) ZLR 81 (S) at 83-84.
As regards the application for
leave against sentence, such application should be treated less
rigidly than the one for leave to appeal against conviction, because
assessment of sentence is one of the more difficult tasks with which
a judicial officer is faced –S
v Woods and Others,
supra;
R v Rowesayi
1969 (1) RLR 140 (A) at 141 D and S
v McGown, supra,
at 85C-E.
Coming back to the facts of this
case, the State counsel, like in the Tengende case, supra,
did not have sight of the record of proceedings. I made my hand
written notes available to him but he is unable to read my hand
writing. It was difficult for Mr.
Hove to consider the
prospects of success in the absence of the record. Mr.
Hove, therefore made
no serious effort to oppose the application.
I do not suffer the same disadvantage as I read through my notes.
This has been a lengthy trial
which commenced on 25 September 2007 and ended on 12 June 2009. The
conviction of the applicants was based mainly on the evidence of
quasi-accomplice, Siwusu Wilfred Tshabangu, and another witness Saul
Ngwenya. The court rejected the applicants; version. These events
involved a number of persons, that is the deceased, Siwusu and the
original four accomplices. The skirmish was fast and there is room
for mistake even by a credible witness. We addressed the issue detail
in our judgment, but there is a reasonable prospect that the Judges
of Appeal may take a different view, both in relation to questions of
fact and of law – R v
Kuzwayo 1949(3) SA
761(A) at 765.
In the circumstances, so far as the verdict is concerned leave to
appeal has to be granted.
As alluded to above, so far as sentence is concerned, sentence is a
matter of discretion and there is always room for difference of
opinion. Such applications, need not therefore, be treated as rigidly
as applications for leave to appeal against conviction.
Cause of death is brain damage and skull fracture. The doctor who
carried out the post mortem observed bruised skull and multiple
sutured long incision sites on both sides of the head externally.
Internally, he observed 4x3cm hole on the left parietal area, 2x3cm
hole on the right parietal area, 8cm right patrie-temporal linear
fracture and huge left parietal brain haematoma and extensive
parenchymal damage (pulped brain). The doctor opined that severe
force was used. This is a brutal assault with lethal object by three
young brothers on their elderly brother. This is a bad murder where
life was unnecessarily lost.
A sentence of 16 years cannot be
said to be severe compare - S
v Sherman SC117-84 and
S v Chiringa
2002 (2) ZLR 537 (S).
The application for leave so far as sentence is devoid of merit and
must therefore be refused.
As accordingly, I order as follows:-
“ALL THREE APPLICANTS:
(1) Leave to appeal against conviction be and is hereby granted.
(2) Leave to appeal against sentence be and is hereby refused.”
Messrs Moyo and Nyoni, applicants' legal practitioners
Criminal Division, Attorney General's Office, respondent's
legal practitioners
