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HH438-18 - TAFADZWA MAPFOCHE vs THE STATE

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Procedural Law-viz chamber application re condonation iro late noting of leave to appeal.
Procedural Law-viz rules of evidence re warned and cautioned statements.
Procedural Law-viz rules of evidence re extra curial statements.
Procedural Law-viz rules of evidence re indications.
Procedural Law-viz rules of evidence re warned and cautioned statement iro evidence aliunde.
Procedural Law-viz rules of evidence re extra-curial statements iro evidence aliunde.
Procedural Law-viz rules of evidence re circumstantial evidence iro evidence aliunde.
Murder-viz murder with actual intent re section 47(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
Sentencing-viz murder with actual intent.
Sentencing-viz youthful offenders.
Sentencing-viz age considerations.
Procedural Law-viz appeal re section 44 of the High Court Act [Chapter 7:06].
Procedural Law-viz appeal re grounds of appeal iro section 44 of the High Court Act [Chapter 7:06].
Procedural Law-viz appeal re grounds for appeal iro section 44 of the High Court Act [Chapter 7:06].
Procedural Law-viz appeal re the right of appeal iro section 70 of the Constitution.
Procedural Law-viz condonation re Rule 266 of the High Court Rules.
Procedural Law-viz condonation re Rule 267 of the High Court Rules.
Procedural Law-viz jurisdiction re judicial deference iro assessment of prospects on appeal.
Procedural Law-viz rules of evidence re inadmissible evidence iro tainted evidence.
Murder-viz absence of corpse re the presumption of death.
Murder-viz absence of remains re the presumption of death.
Murder-viz infliction of harm on an un-identified victim re the presumption of death.
Indictment-viz murder re absence of corpse iro the presumption of death.
Charge-viz murder re absence of remains iro the presumption of death.
Murder-viz absence of body re the presumption of death.
Procedural Law-viz rules of evidence re circumstantial evidence iro inferential reasoning.
Indictment-viz murder re absence of body iro establishment of corpus delicti.
Charge-viz murder re absence of remains iro establishment of corpus delicti.
Murder-viz absence of corpse re establishment of corpus delicti.
Murder-viz section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
Murder-viz murder with constructive intent re section 47(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
Murder-viz murder committed in aggravating circumstances re murder committed in the course of a robbery.
Robbery-viz robbery committed in aggravating circumstances re murder committed in the course of a robbery.
Indictment-viz causation re section 11 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
Charge-viz causation re section 11 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
Procedural Law-viz circumstantial evidence re causation iro section 11 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
Robbery-viz murder committed in the course of a robbery re the doctrine of recent possession.
Sentencing-viz first offenders.
Sentencing-viz sentencing discretion of the trial court.
Procedural Law-viz appeal re leave to appeal.

Appeal and Leave to Appeal re: Approach, Notice, Grounds and Right of Appeal, Concession & Withdrawal of Appeal by State


Section 44 of the High Court Act [Chapter 7:06] deals with appeals from the High Court to the Supreme Court as follows:

“(2) A person convicted on a criminal trial held by the High Court —

(a) May appeal to the Supreme Court against his conviction on any ground of appeal which involves a question of law alone;

(b) May, with the leave of a judge of the High Court, or, if a judge of the High Court refuses to grant leave, with the leave of a judge of the Supreme Court, appeal to the Supreme Court against his conviction on any ground of appeal which involves a question of fact alone or a question of mixed law and fact:

Provided that a person who appeals to the Supreme Court on a ground of appeal which involves a question of law alone may, without applying to a judge of the High Court, be granted leave to appeal by the Supreme Court should it appear to the Supreme Court, on the hearing of the appeal, that the ground of his appeal involves a question of mixed law and fact;

(e) May, where the sentence to which he was liable on conviction was not a sentence fixed by law, and where sentence of death was not passed upon him, with the leave of a judge of the High Court, or, if a judge of that court refuses to grant leave, with the leave of a judge of the Supreme Court, appeal to the Supreme Court against his sentence or order of forfeiture or other order following on conviction.”...,.

The 2013 Constitution has added a further dimension by making the right to appeal against conviction and sentence part of the declaration of rights: section 70(5) of the Constitution states, that, any person who has been tried for and convicted of an offence has the right, subject to reasonable restriction that may be prescribed by law, to appeal to a higher court against the conviction and sentence.

Apart from section 44 of the High Court Act, the other restrictions imposed by law are found in the High Court Rules, Orders 262-268.

In terms of Rule 267 “no application in terms of Rule 266 (application for condonation for failure to apply timeously) may be made after the expiry of twenty-four days from the date on which the sentence was passed, unless the judge orders otherwise.”...,.

In S v Anderson 1964 (3) SA 494 (AD); and S v De Jager & Anor 1965 (2) SA 616 (AD)…, HOLMES JA said:

“It would not appear to be sufficiently realized that a court of appeal does not have a general discretion to ameliorate the sentences of trial courts. The matter is governed by principle.

It is the trial court which has the discretion, and a court of appeal cannot interfere unless the discretion was not judicially exercised; that is to say, unless the sentence is vitiated by irregularity or misdirection or is so severe that no reasonable court could have imposed it. In this latter regard, an accepted test is whether the sentence induces a sense of shock; that is to say, if there is a striking disparity between the sentence passed and that which the court of appeal would have imposed.

It should therefore be recognized that appellate jurisdiction to interfere with punishment is not discretionary but, on the contrary, is very limited.”...,.

Applications for leave to appeal against sentence should be treated less rigidly than those against conviction due to the fact that sentence is always discretionary.

Appeal and Leave to Appeal re: Approach iro Limitation to the Right of Appeal


Section 44 of the High Court Act [Chapter 7:06] deals with appeals from the High Court to the Supreme Court as follows:

“(2) A person convicted on a criminal trial held by the High Court —

(a) May appeal to the Supreme Court against his conviction on any ground of appeal which involves a question of law alone;

(b) May, with the leave of a judge of the High Court, or, if a judge of the High Court refuses to grant leave, with the leave of a judge of the Supreme Court, appeal to the Supreme Court against his conviction on any ground of appeal which involves a question of fact alone or a question of mixed law and fact:

Provided that a person who appeals to the Supreme Court on a ground of appeal which involves a question of law alone may, without applying to a judge of the High Court, be granted leave to appeal by the Supreme Court should it appear to the Supreme Court, on the hearing of the appeal, that the ground of his appeal involves a question of mixed law and fact;

(e) May, where the sentence to which he was liable on conviction was not a sentence fixed by law, and where sentence of death was not passed upon him, with the leave of a judge of the High Court, or, if a judge of that court refuses to grant leave, with the leave of a judge of the Supreme Court, appeal to the Supreme Court against his sentence or order of forfeiture or other order following on conviction.”...,.

The 2013 Constitution has added a further dimension by making the right to appeal against conviction and sentence part of the declaration of rights: section 70(5) of the Constitution states, that, any person who has been tried for and convicted of an offence has the right, subject to reasonable restriction that may be prescribed by law, to appeal to a higher court against the conviction and sentence.

Apart from section 44 of the High Court Act, the other restrictions imposed by law are found in the High Court Rules, Orders 262-268.

In terms of Rule 267 “no application in terms of Rule 266 (application for condonation for failure to apply timeously) may be made after the expiry of twenty-four days from the date on which the sentence was passed, unless the judge orders otherwise.”

Rules of Construction or Interpretation re: Deeming Provisions


Section 11 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] deals with causation as follows:

“(1) A person shall not be held criminally liable for a consequence unless the person's conduct caused or substantially contributed to its occurrence.

(2) A person's conduct shall be deemed to have caused or substantially contributed to a consequence for the purposes of subsection (1) if the conduct -

(a) Is the factual cause of the consequence, that is, but for the conduct the consequence would not have occurred; and

(b) Is the legal cause of the consequence, that is, the consequence -

(i) Was a reasonably foreseeable consequence of his or her conduct; or

(ii) Was brought about by a new cause supervening after his or her conduct, which cause was itself a reasonably foreseeable consequence of his or her conduct.”

Warned and Cautioned Statements, Indications, Evidence Aliunde & Presumption of Clarity of Events Nearer Date of Event


The applicant was, on the 29th of September 2013, convicted by this court of murder in terms of section 47(1)(a) of the Criminal Law [Codification and Reform] Act [Chapter 9:23]. He was sentenced to 25 years imprisonment.

On 6 June 2018, he filed an application for condonation for late noting of leave to appeal against both conviction and sentence.

In his explanation for the delay, three factors have been proffered by the applicant;

(a) That, he lost contact with the legal practitioner who represented him at the trial.

(b) That, he faced difficulties in accessing the record of proceedings even when he had engaged legal practitioners. The initial record supplied was not a complete one; and

(c) He faced financial constraints.

The applicant averred, that, he has good grounds of appeal against conviction in that the magistrate who confirmed his warned and cautioned statement erred in accepting that it be re-drafted.

He alleged that he challenged the initial confirmation of his warned and cautioned statement since he had been tortured by the police. He alleged that the indications made at the scene of the crime were stage-managed.

Further, that, apart from the warned and cautioned statement, there is no other evidence that links him to the offence.

The evidence, in his view, points to a verdict of murder with constructive intent in view of the circumstantial evidence.

With regard to sentence, the applicant averred, that, although he accepts that the court has discretion; in his case, the court failed to place due weight on the fact that he was a youthful offender who was aged 20 at the time of the commission of the offence. He thus deserved mercy and leniency as he could be rehabilitated.

The above largely forms part of his draft Notice of Appeal.

The respondent is not opposed to the relief sought and proffered three reasons as follows;

(a) The court based its ruling on circumstantial evidence since no body was found, and, another court may draw different inferences.

(b) It can be argued that the appellant can be found guilty of a lesser charge of culpable homicide since him and his co-accused left the deceased alive in an area that has wild animals and they ought to have reasonably forseen the possibility of him being devoured by wild animals.

(c) The applicant faced difficulties in procuring the record and he could also not raise legal fees for the appeal to be filed.

Section 44 of the High Court Act [Chapter 7:06] deals with appeals from the High Court to the Supreme Court as follows:

“(2) A person convicted on a criminal trial held by the High Court —

(a) May appeal to the Supreme Court against his conviction on any ground of appeal which involves a question of law alone;

(b) May, with the leave of a judge of the High Court, or, if a judge of the High Court refuses to grant leave, with the leave of a judge of the Supreme Court, appeal to the Supreme Court against his conviction on any ground of appeal which involves a question of fact alone or a question of mixed law and fact:

Provided that a person who appeals to the Supreme Court on a ground of appeal which involves a question of law alone may, without applying to a judge of the High Court, be granted leave to appeal by the Supreme Court should it appear to the Supreme Court, on the hearing of the appeal, that the ground of his appeal involves a question of mixed law and fact;

(e) May, where the sentence to which he was liable on conviction was not a sentence fixed by law, and where sentence of death was not passed upon him, with the leave of a judge of the High Court, or, if a judge of that court refuses to grant leave, with the leave of a judge of the Supreme Court, appeal to the Supreme Court against his sentence or order of forfeiture or other order following on conviction.”

This court, on numerous occasions, has exercised its mind on facts to consider when dealing with applications of this nature.

The 2013 Constitution has added a further dimension by making the right to appeal against conviction and sentence part of the declaration of rights: section 70(5) of the Constitution states, that, any person who has been tried for and convicted of an offence has the right, subject to reasonable restriction that may be prescribed by law, to appeal to a higher court against the conviction and sentence.

Apart from section 44 of the High Court Act, the other restrictions imposed by law are found in the High Court Rules, Orders 262-268.

In terms of Rule 267 “no application in terms of Rule 266 (application for condonation for failure to apply timeously) may be made after the expiry of twenty-four days from the date on which the sentence was passed, unless the judge orders otherwise.”

The current application has been made out of the time limits set, but, nonetheless, I have allowed the application to be made.

In applications of this nature, the South African approach has been set out in S v DiBlasi 1996 (1) SACR (1)…, as follows:

“The general approach of this court to applications of this kind is well established: see e.g. Federated Employers Fire & General Insurance Co. Ltd Anor v McKenzie 1969 (3) SA 360 (A) at 362 F-H; S v Adonis 1982 (4) SA 901 (A) at 908 H-909A; and Ferreira v Ntshingila 1990 (4) SA 271 (A) at 281 D-F.

Relevant considerations include the degree of non-compliance; the explanation therefor; the prospects of success; the importance of the case; the respondent's interests in the finality of the judgment; the convenience of the court; and the avoidance of unnecessary delays in the administration of justice.”

In De Kuszaba-Dabrowski et Uxor v Steel, N.O. 1966 RLR 60, BEADLE CJ set out the broad principles to be taken into account in considering an application for condonation of the late noting of an appeal. Some of these are –

(a) The extent of the delay;

(b) The reasonableness of the explanation for the delay;

(c) Whether the litigant himself is responsible for the delay;

(d) The prospects of success on appeal should the application be granted; and

(e) The possible prejudice to the respondent should the application be granted.

In Vigour Busilizwe Fuyana v Ntombaza Moyo SC54-06, the late CHIDYAUSIKU CJ…, stated the basic requirements as follows:

(a) A reasonable explanation for the failure to note the appeal within the prescribed period.

(b) Some prospects of success on the merits; and

(c) The bona fides of the application.

The applicant has, in my view, advanced plausible reasons for his failure to file an application for leave to appeal to the Supreme Court within the stipulated time frame.

The most critical factor rests on the prospects of success on appeal.

I am mindful of the fact, that, although a judge dealing with such application is not sitting as the Appellate Court per se, but, nonetheless, s/he is required to assess the prospects of success on appeal and not the success of the appeal.

The proposed Notice of Appeal becomes very relevant in such considerations.

The proposed grounds of appeal, in relation to the conviction, are based on three factors, namely;

(i) The warned and cautioned statements admissibility;

(ii) Circumstantial evidence; and

(iii) Intention to kill.

On the warned and cautioned statements, it is pertinent to note, that, the magistrate to whom the appellant and his co-accused were brought for confirmation of the warned and cautioned statement refused to confirm the statements of both after they indicated that they were severely assaulted by the police, and, this, in the court's view, was a layer of protection afforded to the accused persons.

The magistrate then directed that fresh statements be recorded - and this was done.

The fresh statements were produced by consent after withdrawal of the objection.

More poignantly, the court took into account other evidence in relation to the statements, more specifically, that “the impression given by the statement is that the deceased went down on his own volition. Whilst that may vary with the accused's version in court that he walked back to the boom gate, but the most important aspect of the statements is that he was alive. It is therefore inconceivable that the accused would have been threatened to admit denying the charge and admit having left the deceased alive and kicking.”…,.

The court also dealt extensively with the issue of circumstantial evidence.

It concluded that the deceased was left by the appellant and his co-accused in Marongoro Game Park which they knew was infested with wild animals. Clothes belonging to the deceased were found and the only conclusion that could be drawn from the facts is that he had died.

The court admitted that it relied on circumstantial evidence.

The court placed reliance on the reported decision in S v Shoniwa 1987 (1) ZLR 215 (S) in which the late DUMBUTSHENA CJ…, stated as follows…,:

“The law is that, on a criminal charge, the fact that a person was murdered can, like any other fact, be provided by actual evidence or circumstantial evidence if that evidence leads to that conclusion of fact, although no body or corpse was found.

The court must, as in any other criminal case, be satisfied, beyond reasonable doubt, of the guilt of the accused person.

In order to convict a person where no body has been found, there need be no confession establishing the guilt of the accused. There must be, however, sufficient evidence to establish the corpus delicti. That evidence can be wholly circumstantial provided it is sufficient to preclude every reasonable inference of the accused.”

The totality of the evidence led could only lead to the reasonable inference that the appellant and his co-accused left the deceased to die.

The essential elements of murder are set out in section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] as follows:

“(1) Any person who causes the death of another person -

(a) Intending to kill the other person; or

(b) Realizing that there is a real risk or possibility that his or her conduct may cause death; and
continues to engage in that conduct despite the risk or possibility, shall be guilty of murder.”

Section 47(1)(a) of the Criminal Law (Codification and Reform) Act relates to murder with actual intent and section 47(1)(b) of the Criminal Law (Codification and Reform) Act - murder with constructive intent.

The view by the respondent, at the trial, was that, the evidence did not prove murder with actual intent but with constructive intent.

Nonetheless, the applicant and his co-accused were found guilty of murder with actual intent.

The court considered that they abandoned the deceased in a place where he had no chances of survival; in a place where there were wild animals; and they did so in order to conceal their identify as the persons who had robbed the deceased.

In S v Gumbi 1994 (2) ZLR 323 & 327 EBRAHIM JA…, stated as follows in relation to murder with constructive intention:

“The point, in essence, is that there must be more negligence and more than gross negligence to constitute that form of recklessness which amounts to constructive intent or dolus eventualis. There must be, in the mind of the accused person, what has been called 'a volitional component'. In other words, he must, in effect, say to himself 'I know I may kill this person if I shoot but I am going to shoot anyway'.”

Section 11 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] deals with causation as follows:

“(1) A person shall not be held criminally liable for a consequence unless the person's conduct caused or substantially contributed to its occurrence.

(2) A person's conduct shall be deemed to have caused or substantially contributed to a consequence for the purposes of subsection (1) if the conduct -

(a) Is the factual cause of the consequence, that is, but for the conduct the consequence would not have occurred; and

(b) Is the legal cause of the consequence, that is, the consequence -

(i) Was a reasonably foreseeable consequence of his or her conduct; or

(ii) Was brought about by a new cause supervening after his or her conduct, which cause was itself a reasonably foreseeable consequence of his or her conduct.”

The totality of the evidence was such that the death was a direct result of the actions of the appellant and his co-accused.

They admitted robbing him of his vehicle and driving him to an area infested with wild animals.

However, it may be that a higher court may find that the applicant and his co-accused ought to have been found guilty of murder with constructive intent.

This is moreso given the fact that their actions may be those of persons who knew that the deceased may meet death in the park but they still went ahead and left him there.

In the closing submissions by the respondent at the trial…, it made the following submission:

“Although proof of murder with actual intent is not clearly proved by the evidence; by leaving the person at night, in the dark, in a game park with wild animals that can easily roam about during night time, the accused realised the real risk or possibility of death resulting from their conduct and may therefore convicted (sic) of murder with constructive intent under the circumstances as their actions can easily be said to have caused or substantially contributed to the death of the now deceased as contemplated by section 11 of the Criminal Law Code.”

In other words, the respondent supported a verdict of murder with constructive intent.

As for sentence, the major contention by the appellant is that the court paid lip service to the fact that the appellant is a youthful first offender, and, as a result, the sentence is so severe that it induces a sense of shock.

In S v Anderson 1964 (3) SA 494 (AD); and S v De Jager & Anor 1965 (2) SA 616 (AD)…, HOLMES JA said:

“It would not appear to be sufficiently realized that a court of appeal does not have a general discretion to ameliorate the sentences of trial courts. The matter is governed by principle.

It is the trial court which has the discretion, and a court of appeal cannot interfere unless the discretion was not judicially exercised; that is to say, unless the sentence is vitiated by irregularity or misdirection or is so severe that no reasonable court could have imposed it. In this latter regard, an accepted test is whether the sentence induces a sense of shock; that is to say, if there is a striking disparity between the sentence passed and that which the court of appeal would have imposed.

It should therefore be recognized that appellate jurisdiction to interfere with punishment is not discretionary but, on the contrary, is very limited.”

The accused was convicted of murder with actual intent, but, if a higher court finds that he ought to have been found guilty of murder with constructive intent, this may affect the sentence.

In any event, applications for leave to appeal against sentence should be treated less rigidly than those against conviction due to the fact that sentence is always discretionary.

Accordingly, it is ordered as follows:

1. The application for condonation for late noting of an application for leave to appeal to the Supreme Court against sentence and conviction be and is hereby granted.

2. The applicant shall file his application for leave to appeal to the Supreme Court within ten days from the date of service of this order on him.

3. The Registrar of the High Court, Harare is directed to ensure that the applicant is served with this order and confirms receipt and such proof shall be filed and become part of the record.

Sentencing re: Approach iro Approach to Sentencing, the Penalty Provision of a Statute and the Pre-Sentence Inquiry


In S v Anderson 1964 (3) SA 494 (AD); and S v De Jager & Anor 1965 (2) SA 616 (AD)…, HOLMES JA said:

“It would not appear to be sufficiently realized that a court of appeal does not have a general discretion to ameliorate the sentences of trial courts. The matter is governed by principle.

It is the trial court which has the discretion, and a court of appeal cannot interfere unless the discretion was not judicially exercised; that is to say, unless the sentence is vitiated by irregularity or misdirection or is so severe that no reasonable court could have imposed it. In this latter regard, an accepted test is whether the sentence induces a sense of shock; that is to say, if there is a striking disparity between the sentence passed and that which the court of appeal would have imposed.

It should therefore be recognized that appellate jurisdiction to interfere with punishment is not discretionary but, on the contrary, is very limited.”

Sentencing re: Approach iro Sentencing Jurisdiction and the Referral or Transfer for Sentence


In S v Anderson 1964 (3) SA 494 (AD); and S v De Jager & Anor 1965 (2) SA 616 (AD)…, HOLMES JA said:

“It would not appear to be sufficiently realized that a court of appeal does not have a general discretion to ameliorate the sentences of trial courts. The matter is governed by principle.

It is the trial court which has the discretion, and a court of appeal cannot interfere unless the discretion was not judicially exercised; that is to say, unless the sentence is vitiated by irregularity or misdirection or is so severe that no reasonable court could have imposed it. In this latter regard, an accepted test is whether the sentence induces a sense of shock; that is to say, if there is a striking disparity between the sentence passed and that which the court of appeal would have imposed.

It should therefore be recognized that appellate jurisdiction to interfere with punishment is not discretionary but, on the contrary, is very limited.”

Condonation, Extension of Time, Doctrines of Strict and Substantial Compliance and Pleading of Form over Substance


The applicant was, on the 29th of September 2013, convicted by this court of murder in terms of section 47(1)(a) of the Criminal Law [Codification and Reform] Act [Chapter 9:23]. He was sentenced to 25 years imprisonment.

On 6 June 2018, he filed an application for condonation for late noting of leave to appeal against both conviction and sentence.

In his explanation for the delay, three factors have been proffered by the applicant;

(a) That, he lost contact with the legal practitioner who represented him at the trial.

(b) That, he faced difficulties in accessing the record of proceedings even when he had engaged legal practitioners. The initial record supplied was not a complete one; and

(c) He faced financial constraints.

The applicant averred, that, he has good grounds of appeal against conviction in that the magistrate who confirmed his warned and cautioned statement erred in accepting that it be re-drafted.

He alleged that he challenged the initial confirmation of his warned and cautioned statement since he had been tortured by the police. He alleged that the indications made at the scene of the crime were stage-managed.

Further, that, apart from the warned and cautioned statement, there is no other evidence that links him to the offence.

The evidence, in his view, points to a verdict of murder with constructive intent in view of the circumstantial evidence.

With regard to sentence, the applicant averred, that, although he accepts that the court has discretion; in his case, the court failed to place due weight on the fact that he was a youthful offender who was aged 20 at the time of the commission of the offence. He thus deserved mercy and leniency as he could be rehabilitated.

The above largely forms part of his draft Notice of Appeal.

The respondent is not opposed to the relief sought and proffered three reasons as follows;

(a) The court based its ruling on circumstantial evidence since no body was found, and, another court may draw different inferences.

(b) It can be argued that the appellant can be found guilty of a lesser charge of culpable homicide since him and his co-accused left the deceased alive in an area that has wild animals and they ought to have reasonably forseen the possibility of him being devoured by wild animals.

(c) The applicant faced difficulties in procuring the record and he could also not raise legal fees for the appeal to be filed.

Section 44 of the High Court Act [Chapter 7:06] deals with appeals from the High Court to the Supreme Court as follows:

“(2) A person convicted on a criminal trial held by the High Court —

(a) May appeal to the Supreme Court against his conviction on any ground of appeal which involves a question of law alone;

(b) May, with the leave of a judge of the High Court, or, if a judge of the High Court refuses to grant leave, with the leave of a judge of the Supreme Court, appeal to the Supreme Court against his conviction on any ground of appeal which involves a question of fact alone or a question of mixed law and fact:

Provided that a person who appeals to the Supreme Court on a ground of appeal which involves a question of law alone may, without applying to a judge of the High Court, be granted leave to appeal by the Supreme Court should it appear to the Supreme Court, on the hearing of the appeal, that the ground of his appeal involves a question of mixed law and fact;

(e) May, where the sentence to which he was liable on conviction was not a sentence fixed by law, and where sentence of death was not passed upon him, with the leave of a judge of the High Court, or, if a judge of that court refuses to grant leave, with the leave of a judge of the Supreme Court, appeal to the Supreme Court against his sentence or order of forfeiture or other order following on conviction.”

This court, on numerous occasions, has exercised its mind on facts to consider when dealing with applications of this nature.

The 2013 Constitution has added a further dimension by making the right to appeal against conviction and sentence part of the declaration of rights: section 70(5) of the Constitution states, that, any person who has been tried for and convicted of an offence has the right, subject to reasonable restriction that may be prescribed by law, to appeal to a higher court against the conviction and sentence.

Apart from section 44 of the High Court Act, the other restrictions imposed by law are found in the High Court Rules, Orders 262-268.

In terms of Rule 267 “no application in terms of Rule 266 (application for condonation for failure to apply timeously) may be made after the expiry of twenty-four days from the date on which the sentence was passed, unless the judge orders otherwise.”

The current application has been made out of the time limits set, but, nonetheless, I have allowed the application to be made.

In applications of this nature, the South African approach has been set out in S v DiBlasi 1996 (1) SACR (1)…, as follows:

“The general approach of this court to applications of this kind is well established: see e.g. Federated Employers Fire & General Insurance Co. Ltd Anor v McKenzie 1969 (3) SA 360 (A) at 362 F-H; S v Adonis 1982 (4) SA 901 (A) at 908 H-909A; and Ferreira v Ntshingila 1990 (4) SA 271 (A) at 281 D-F.

Relevant considerations include the degree of non-compliance; the explanation therefor; the prospects of success; the importance of the case; the respondent's interests in the finality of the judgment; the convenience of the court; and the avoidance of unnecessary delays in the administration of justice.”

In De Kuszaba-Dabrowski et Uxor v Steel, N.O. 1966 RLR 60, BEADLE CJ set out the broad principles to be taken into account in considering an application for condonation of the late noting of an appeal. Some of these are –

(a) The extent of the delay;

(b) The reasonableness of the explanation for the delay;

(c) Whether the litigant himself is responsible for the delay;

(d) The prospects of success on appeal should the application be granted; and

(e) The possible prejudice to the respondent should the application be granted.

In Vigour Busilizwe Fuyana v Ntombaza Moyo SC54-06, the late CHIDYAUSIKU CJ…, stated the basic requirements as follows:

(a) A reasonable explanation for the failure to note the appeal within the prescribed period.

(b) Some prospects of success on the merits; and

(c) The bona fides of the application.

The applicant has, in my view, advanced plausible reasons for his failure to file an application for leave to appeal to the Supreme Court within the stipulated time frame.

The most critical factor rests on the prospects of success on appeal.

I am mindful of the fact, that, although a judge dealing with such application is not sitting as the Appellate Court per se, but, nonetheless, s/he is required to assess the prospects of success on appeal and not the success of the appeal.

The proposed Notice of Appeal becomes very relevant in such considerations.

The proposed grounds of appeal, in relation to the conviction, are based on three factors, namely;

(i) The warned and cautioned statements admissibility;

(ii) Circumstantial evidence; and

(iii) Intention to kill.

On the warned and cautioned statements, it is pertinent to note, that, the magistrate to whom the appellant and his co-accused were brought for confirmation of the warned and cautioned statement refused to confirm the statements of both after they indicated that they were severely assaulted by the police, and, this, in the court's view, was a layer of protection afforded to the accused persons.

The magistrate then directed that fresh statements be recorded - and this was done.

The fresh statements were produced by consent after withdrawal of the objection.

More poignantly, the court took into account other evidence in relation to the statements, more specifically, that “the impression given by the statement is that the deceased went down on his own volition. Whilst that may vary with the accused's version in court that he walked back to the boom gate, but the most important aspect of the statements is that he was alive. It is therefore inconceivable that the accused would have been threatened to admit denying the charge and admit having left the deceased alive and kicking.”…,.

The court also dealt extensively with the issue of circumstantial evidence.

It concluded that the deceased was left by the appellant and his co-accused in Marongoro Game Park which they knew was infested with wild animals. Clothes belonging to the deceased were found and the only conclusion that could be drawn from the facts is that he had died.

The court admitted that it relied on circumstantial evidence.

The court placed reliance on the reported decision in S v Shoniwa 1987 (1) ZLR 215 (S) in which the late DUMBUTSHENA CJ…, stated as follows…,:

“The law is that, on a criminal charge, the fact that a person was murdered can, like any other fact, be provided by actual evidence or circumstantial evidence if that evidence leads to that conclusion of fact, although no body or corpse was found.

The court must, as in any other criminal case, be satisfied, beyond reasonable doubt, of the guilt of the accused person.

In order to convict a person where no body has been found, there need be no confession establishing the guilt of the accused. There must be, however, sufficient evidence to establish the corpus delicti. That evidence can be wholly circumstantial provided it is sufficient to preclude every reasonable inference of the accused.”

The totality of the evidence led could only lead to the reasonable inference that the appellant and his co-accused left the deceased to die.

The essential elements of murder are set out in section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] as follows:

“(1) Any person who causes the death of another person -

(a) Intending to kill the other person; or

(b) Realizing that there is a real risk or possibility that his or her conduct may cause death; and
continues to engage in that conduct despite the risk or possibility, shall be guilty of murder.”

Section 47(1)(a) of the Criminal Law (Codification and Reform) Act relates to murder with actual intent and section 47(1)(b) of the Criminal Law (Codification and Reform) Act - murder with constructive intent.

The view by the respondent, at the trial, was that, the evidence did not prove murder with actual intent but with constructive intent.

Nonetheless, the applicant and his co-accused were found guilty of murder with actual intent.

The court considered that they abandoned the deceased in a place where he had no chances of survival; in a place where there were wild animals; and they did so in order to conceal their identify as the persons who had robbed the deceased.

In S v Gumbi 1994 (2) ZLR 323 & 327 EBRAHIM JA…, stated as follows in relation to murder with constructive intention:

“The point, in essence, is that there must be more negligence and more than gross negligence to constitute that form of recklessness which amounts to constructive intent or dolus eventualis. There must be, in the mind of the accused person, what has been called 'a volitional component'. In other words, he must, in effect, say to himself 'I know I may kill this person if I shoot but I am going to shoot anyway'.”

Section 11 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] deals with causation as follows:

“(1) A person shall not be held criminally liable for a consequence unless the person's conduct caused or substantially contributed to its occurrence.

(2) A person's conduct shall be deemed to have caused or substantially contributed to a consequence for the purposes of subsection (1) if the conduct -

(a) Is the factual cause of the consequence, that is, but for the conduct the consequence would not have occurred; and

(b) Is the legal cause of the consequence, that is, the consequence -

(i) Was a reasonably foreseeable consequence of his or her conduct; or

(ii) Was brought about by a new cause supervening after his or her conduct, which cause was itself a reasonably foreseeable consequence of his or her conduct.”

The totality of the evidence was such that the death was a direct result of the actions of the appellant and his co-accused.

They admitted robbing him of his vehicle and driving him to an area infested with wild animals.

However, it may be that a higher court may find that the applicant and his co-accused ought to have been found guilty of murder with constructive intent.

This is moreso given the fact that their actions may be those of persons who knew that the deceased may meet death in the park but they still went ahead and left him there.

In the closing submissions by the respondent at the trial…, it made the following submission:

“Although proof of murder with actual intent is not clearly proved by the evidence; by leaving the person at night, in the dark, in a game park with wild animals that can easily roam about during night time, the accused realised the real risk or possibility of death resulting from their conduct and may therefore convicted (sic) of murder with constructive intent under the circumstances as their actions can easily be said to have caused or substantially contributed to the death of the now deceased as contemplated by section 11 of the Criminal Law Code.”

In other words, the respondent supported a verdict of murder with constructive intent.

As for sentence, the major contention by the appellant is that the court paid lip service to the fact that the appellant is a youthful first offender, and, as a result, the sentence is so severe that it induces a sense of shock.

In S v Anderson 1964 (3) SA 494 (AD); and S v De Jager & Anor 1965 (2) SA 616 (AD)…, HOLMES JA said:

“It would not appear to be sufficiently realized that a court of appeal does not have a general discretion to ameliorate the sentences of trial courts. The matter is governed by principle.

It is the trial court which has the discretion, and a court of appeal cannot interfere unless the discretion was not judicially exercised; that is to say, unless the sentence is vitiated by irregularity or misdirection or is so severe that no reasonable court could have imposed it. In this latter regard, an accepted test is whether the sentence induces a sense of shock; that is to say, if there is a striking disparity between the sentence passed and that which the court of appeal would have imposed.

It should therefore be recognized that appellate jurisdiction to interfere with punishment is not discretionary but, on the contrary, is very limited.”

The accused was convicted of murder with actual intent, but, if a higher court finds that he ought to have been found guilty of murder with constructive intent, this may affect the sentence.

In any event, applications for leave to appeal against sentence should be treated less rigidly than those against conviction due to the fact that sentence is always discretionary.

Accordingly, it is ordered as follows:

1. The application for condonation for late noting of an application for leave to appeal to the Supreme Court against sentence and conviction be and is hereby granted.

2. The applicant shall file his application for leave to appeal to the Supreme Court within ten days from the date of service of this order on him.

3. The Registrar of the High Court, Harare is directed to ensure that the applicant is served with this order and confirms receipt and such proof shall be filed and become part of the record.

Murder re: Murder with Constructive Intent, Foreseeability Intention, Reckless Conduct or Dolus Eventualis


The applicant was, on the 29th of September 2013, convicted by this court of murder in terms of section 47(1)(a) of the Criminal Law [Codification and Reform] Act [Chapter 9:23]. He was sentenced to 25 years imprisonment.

On 6 June 2018, he filed an application for condonation for late noting of leave to appeal against both conviction and sentence.

In his explanation for the delay, three factors have been proffered by the applicant;

(a) That, he lost contact with the legal practitioner who represented him at the trial.

(b) That, he faced difficulties in accessing the record of proceedings even when he had engaged legal practitioners. The initial record supplied was not a complete one; and

(c) He faced financial constraints.

The applicant averred, that, he has good grounds of appeal against conviction in that the magistrate who confirmed his warned and cautioned statement erred in accepting that it be re-drafted.

He alleged that he challenged the initial confirmation of his warned and cautioned statement since he had been tortured by the police. He alleged that the indications made at the scene of the crime were stage-managed.

Further, that, apart from the warned and cautioned statement, there is no other evidence that links him to the offence.

The evidence, in his view, points to a verdict of murder with constructive intent in view of the circumstantial evidence.

With regard to sentence, the applicant averred, that, although he accepts that the court has discretion; in his case, the court failed to place due weight on the fact that he was a youthful offender who was aged 20 at the time of the commission of the offence. He thus deserved mercy and leniency as he could be rehabilitated.

The above largely forms part of his draft Notice of Appeal.

The respondent is not opposed to the relief sought and proffered three reasons as follows;

(a) The court based its ruling on circumstantial evidence since no body was found, and, another court may draw different inferences.

(b) It can be argued that the appellant can be found guilty of a lesser charge of culpable homicide since him and his co-accused left the deceased alive in an area that has wild animals and they ought to have reasonably forseen the possibility of him being devoured by wild animals.

(c) The applicant faced difficulties in procuring the record and he could also not raise legal fees for the appeal to be filed.

Section 44 of the High Court Act [Chapter 7:06] deals with appeals from the High Court to the Supreme Court as follows:

“(2) A person convicted on a criminal trial held by the High Court —

(a) May appeal to the Supreme Court against his conviction on any ground of appeal which involves a question of law alone;

(b) May, with the leave of a judge of the High Court, or, if a judge of the High Court refuses to grant leave, with the leave of a judge of the Supreme Court, appeal to the Supreme Court against his conviction on any ground of appeal which involves a question of fact alone or a question of mixed law and fact:

Provided that a person who appeals to the Supreme Court on a ground of appeal which involves a question of law alone may, without applying to a judge of the High Court, be granted leave to appeal by the Supreme Court should it appear to the Supreme Court, on the hearing of the appeal, that the ground of his appeal involves a question of mixed law and fact;

(e) May, where the sentence to which he was liable on conviction was not a sentence fixed by law, and where sentence of death was not passed upon him, with the leave of a judge of the High Court, or, if a judge of that court refuses to grant leave, with the leave of a judge of the Supreme Court, appeal to the Supreme Court against his sentence or order of forfeiture or other order following on conviction.”

This court, on numerous occasions, has exercised its mind on facts to consider when dealing with applications of this nature.

The 2013 Constitution has added a further dimension by making the right to appeal against conviction and sentence part of the declaration of rights: section 70(5) of the Constitution states, that, any person who has been tried for and convicted of an offence has the right, subject to reasonable restriction that may be prescribed by law, to appeal to a higher court against the conviction and sentence.

Apart from section 44 of the High Court Act, the other restrictions imposed by law are found in the High Court Rules, Orders 262-268.

In terms of Rule 267 “no application in terms of Rule 266 (application for condonation for failure to apply timeously) may be made after the expiry of twenty-four days from the date on which the sentence was passed, unless the judge orders otherwise.”

The current application has been made out of the time limits set, but, nonetheless, I have allowed the application to be made.

In applications of this nature, the South African approach has been set out in S v DiBlasi 1996 (1) SACR (1)…, as follows:

“The general approach of this court to applications of this kind is well established: see e.g. Federated Employers Fire & General Insurance Co. Ltd Anor v McKenzie 1969 (3) SA 360 (A) at 362 F-H; S v Adonis 1982 (4) SA 901 (A) at 908 H-909A; and Ferreira v Ntshingila 1990 (4) SA 271 (A) at 281 D-F.

Relevant considerations include the degree of non-compliance; the explanation therefor; the prospects of success; the importance of the case; the respondent's interests in the finality of the judgment; the convenience of the court; and the avoidance of unnecessary delays in the administration of justice.”

In De Kuszaba-Dabrowski et Uxor v Steel, N.O. 1966 RLR 60, BEADLE CJ set out the broad principles to be taken into account in considering an application for condonation of the late noting of an appeal. Some of these are –

(a) The extent of the delay;

(b) The reasonableness of the explanation for the delay;

(c) Whether the litigant himself is responsible for the delay;

(d) The prospects of success on appeal should the application be granted; and

(e) The possible prejudice to the respondent should the application be granted.

In Vigour Busilizwe Fuyana v Ntombaza Moyo SC54-06, the late CHIDYAUSIKU CJ…, stated the basic requirements as follows:

(a) A reasonable explanation for the failure to note the appeal within the prescribed period.

(b) Some prospects of success on the merits; and

(c) The bona fides of the application.

The applicant has, in my view, advanced plausible reasons for his failure to file an application for leave to appeal to the Supreme Court within the stipulated time frame.

The most critical factor rests on the prospects of success on appeal.

I am mindful of the fact, that, although a judge dealing with such application is not sitting as the Appellate Court per se, but, nonetheless, s/he is required to assess the prospects of success on appeal and not the success of the appeal.

The proposed Notice of Appeal becomes very relevant in such considerations.

The proposed grounds of appeal, in relation to the conviction, are based on three factors, namely;

(i) The warned and cautioned statements admissibility;

(ii) Circumstantial evidence; and

(iii) Intention to kill.

On the warned and cautioned statements, it is pertinent to note, that, the magistrate to whom the appellant and his co-accused were brought for confirmation of the warned and cautioned statement refused to confirm the statements of both after they indicated that they were severely assaulted by the police, and, this, in the court's view, was a layer of protection afforded to the accused persons.

The magistrate then directed that fresh statements be recorded - and this was done.

The fresh statements were produced by consent after withdrawal of the objection.

More poignantly, the court took into account other evidence in relation to the statements, more specifically, that “the impression given by the statement is that the deceased went down on his own volition. Whilst that may vary with the accused's version in court that he walked back to the boom gate, but the most important aspect of the statements is that he was alive. It is therefore inconceivable that the accused would have been threatened to admit denying the charge and admit having left the deceased alive and kicking.”…,.

The court also dealt extensively with the issue of circumstantial evidence.

It concluded that the deceased was left by the appellant and his co-accused in Marongoro Game Park which they knew was infested with wild animals. Clothes belonging to the deceased were found and the only conclusion that could be drawn from the facts is that he had died.

The court admitted that it relied on circumstantial evidence.

The court placed reliance on the reported decision in S v Shoniwa 1987 (1) ZLR 215 (S) in which the late DUMBUTSHENA CJ…, stated as follows…,:

“The law is that, on a criminal charge, the fact that a person was murdered can, like any other fact, be provided by actual evidence or circumstantial evidence if that evidence leads to that conclusion of fact, although no body or corpse was found.

The court must, as in any other criminal case, be satisfied, beyond reasonable doubt, of the guilt of the accused person.

In order to convict a person where no body has been found, there need be no confession establishing the guilt of the accused. There must be, however, sufficient evidence to establish the corpus delicti. That evidence can be wholly circumstantial provided it is sufficient to preclude every reasonable inference of the accused.”

The totality of the evidence led could only lead to the reasonable inference that the appellant and his co-accused left the deceased to die.

The essential elements of murder are set out in section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] as follows:

“(1) Any person who causes the death of another person -

(a) Intending to kill the other person; or

(b) Realizing that there is a real risk or possibility that his or her conduct may cause death; and
continues to engage in that conduct despite the risk or possibility, shall be guilty of murder.”

Section 47(1)(a) of the Criminal Law (Codification and Reform) Act relates to murder with actual intent and section 47(1)(b) of the Criminal Law (Codification and Reform) Act - murder with constructive intent.

The view by the respondent, at the trial, was that, the evidence did not prove murder with actual intent but with constructive intent.

Nonetheless, the applicant and his co-accused were found guilty of murder with actual intent.

The court considered that they abandoned the deceased in a place where he had no chances of survival; in a place where there were wild animals; and they did so in order to conceal their identify as the persons who had robbed the deceased.

In S v Gumbi 1994 (2) ZLR 323 & 327 EBRAHIM JA…, stated as follows in relation to murder with constructive intention:

“The point, in essence, is that there must be more negligence and more than gross negligence to constitute that form of recklessness which amounts to constructive intent or dolus eventualis. There must be, in the mind of the accused person, what has been called 'a volitional component'. In other words, he must, in effect, say to himself 'I know I may kill this person if I shoot but I am going to shoot anyway'.”

Section 11 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] deals with causation as follows:

“(1) A person shall not be held criminally liable for a consequence unless the person's conduct caused or substantially contributed to its occurrence.

(2) A person's conduct shall be deemed to have caused or substantially contributed to a consequence for the purposes of subsection (1) if the conduct -

(a) Is the factual cause of the consequence, that is, but for the conduct the consequence would not have occurred; and

(b) Is the legal cause of the consequence, that is, the consequence -

(i) Was a reasonably foreseeable consequence of his or her conduct; or

(ii) Was brought about by a new cause supervening after his or her conduct, which cause was itself a reasonably foreseeable consequence of his or her conduct.”

The totality of the evidence was such that the death was a direct result of the actions of the appellant and his co-accused.

They admitted robbing him of his vehicle and driving him to an area infested with wild animals.

However, it may be that a higher court may find that the applicant and his co-accused ought to have been found guilty of murder with constructive intent.

This is moreso given the fact that their actions may be those of persons who knew that the deceased may meet death in the park but they still went ahead and left him there.

In the closing submissions by the respondent at the trial…, it made the following submission:

“Although proof of murder with actual intent is not clearly proved by the evidence; by leaving the person at night, in the dark, in a game park with wild animals that can easily roam about during night time, the accused realised the real risk or possibility of death resulting from their conduct and may therefore convicted (sic) of murder with constructive intent under the circumstances as their actions can easily be said to have caused or substantially contributed to the death of the now deceased as contemplated by section 11 of the Criminal Law Code.”

In other words, the respondent supported a verdict of murder with constructive intent.

As for sentence, the major contention by the appellant is that the court paid lip service to the fact that the appellant is a youthful first offender, and, as a result, the sentence is so severe that it induces a sense of shock.

In S v Anderson 1964 (3) SA 494 (AD); and S v De Jager & Anor 1965 (2) SA 616 (AD)…, HOLMES JA said:

“It would not appear to be sufficiently realized that a court of appeal does not have a general discretion to ameliorate the sentences of trial courts. The matter is governed by principle.

It is the trial court which has the discretion, and a court of appeal cannot interfere unless the discretion was not judicially exercised; that is to say, unless the sentence is vitiated by irregularity or misdirection or is so severe that no reasonable court could have imposed it. In this latter regard, an accepted test is whether the sentence induces a sense of shock; that is to say, if there is a striking disparity between the sentence passed and that which the court of appeal would have imposed.

It should therefore be recognized that appellate jurisdiction to interfere with punishment is not discretionary but, on the contrary, is very limited.”

The accused was convicted of murder with actual intent, but, if a higher court finds that he ought to have been found guilty of murder with constructive intent, this may affect the sentence.

In any event, applications for leave to appeal against sentence should be treated less rigidly than those against conviction due to the fact that sentence is always discretionary.

Accordingly, it is ordered as follows:

1. The application for condonation for late noting of an application for leave to appeal to the Supreme Court against sentence and conviction be and is hereby granted.

2. The applicant shall file his application for leave to appeal to the Supreme Court within ten days from the date of service of this order on him.

3. The Registrar of the High Court, Harare is directed to ensure that the applicant is served with this order and confirms receipt and such proof shall be filed and become part of the record.

Murder re: Murder with Actual Intent, Dolus Directus and Murder Committed in Aggravating Circumstances


The applicant was, on the 29th of September 2013, convicted by this court of murder in terms of section 47(1)(a) of the Criminal Law [Codification and Reform] Act [Chapter 9:23]. He was sentenced to 25 years imprisonment.

On 6 June 2018, he filed an application for condonation for late noting of leave to appeal against both conviction and sentence.

In his explanation for the delay, three factors have been proffered by the applicant;

(a) That, he lost contact with the legal practitioner who represented him at the trial.

(b) That, he faced difficulties in accessing the record of proceedings even when he had engaged legal practitioners. The initial record supplied was not a complete one; and

(c) He faced financial constraints.

The applicant averred, that, he has good grounds of appeal against conviction in that the magistrate who confirmed his warned and cautioned statement erred in accepting that it be re-drafted.

He alleged that he challenged the initial confirmation of his warned and cautioned statement since he had been tortured by the police. He alleged that the indications made at the scene of the crime were stage-managed.

Further, that, apart from the warned and cautioned statement, there is no other evidence that links him to the offence.

The evidence, in his view, points to a verdict of murder with constructive intent in view of the circumstantial evidence.

With regard to sentence, the applicant averred, that, although he accepts that the court has discretion; in his case, the court failed to place due weight on the fact that he was a youthful offender who was aged 20 at the time of the commission of the offence. He thus deserved mercy and leniency as he could be rehabilitated.

The above largely forms part of his draft Notice of Appeal.

The respondent is not opposed to the relief sought and proffered three reasons as follows;

(a) The court based its ruling on circumstantial evidence since no body was found, and, another court may draw different inferences.

(b) It can be argued that the appellant can be found guilty of a lesser charge of culpable homicide since him and his co-accused left the deceased alive in an area that has wild animals and they ought to have reasonably forseen the possibility of him being devoured by wild animals.

(c) The applicant faced difficulties in procuring the record and he could also not raise legal fees for the appeal to be filed.

Section 44 of the High Court Act [Chapter 7:06] deals with appeals from the High Court to the Supreme Court as follows:

“(2) A person convicted on a criminal trial held by the High Court —

(a) May appeal to the Supreme Court against his conviction on any ground of appeal which involves a question of law alone;

(b) May, with the leave of a judge of the High Court, or, if a judge of the High Court refuses to grant leave, with the leave of a judge of the Supreme Court, appeal to the Supreme Court against his conviction on any ground of appeal which involves a question of fact alone or a question of mixed law and fact:

Provided that a person who appeals to the Supreme Court on a ground of appeal which involves a question of law alone may, without applying to a judge of the High Court, be granted leave to appeal by the Supreme Court should it appear to the Supreme Court, on the hearing of the appeal, that the ground of his appeal involves a question of mixed law and fact;

(e) May, where the sentence to which he was liable on conviction was not a sentence fixed by law, and where sentence of death was not passed upon him, with the leave of a judge of the High Court, or, if a judge of that court refuses to grant leave, with the leave of a judge of the Supreme Court, appeal to the Supreme Court against his sentence or order of forfeiture or other order following on conviction.”

This court, on numerous occasions, has exercised its mind on facts to consider when dealing with applications of this nature.

The 2013 Constitution has added a further dimension by making the right to appeal against conviction and sentence part of the declaration of rights: section 70(5) of the Constitution states, that, any person who has been tried for and convicted of an offence has the right, subject to reasonable restriction that may be prescribed by law, to appeal to a higher court against the conviction and sentence.

Apart from section 44 of the High Court Act, the other restrictions imposed by law are found in the High Court Rules, Orders 262-268.

In terms of Rule 267 “no application in terms of Rule 266 (application for condonation for failure to apply timeously) may be made after the expiry of twenty-four days from the date on which the sentence was passed, unless the judge orders otherwise.”

The current application has been made out of the time limits set, but, nonetheless, I have allowed the application to be made.

In applications of this nature, the South African approach has been set out in S v DiBlasi 1996 (1) SACR (1)…, as follows:

“The general approach of this court to applications of this kind is well established: see e.g. Federated Employers Fire & General Insurance Co. Ltd Anor v McKenzie 1969 (3) SA 360 (A) at 362 F-H; S v Adonis 1982 (4) SA 901 (A) at 908 H-909A; and Ferreira v Ntshingila 1990 (4) SA 271 (A) at 281 D-F.

Relevant considerations include the degree of non-compliance; the explanation therefor; the prospects of success; the importance of the case; the respondent's interests in the finality of the judgment; the convenience of the court; and the avoidance of unnecessary delays in the administration of justice.”

In De Kuszaba-Dabrowski et Uxor v Steel, N.O. 1966 RLR 60, BEADLE CJ set out the broad principles to be taken into account in considering an application for condonation of the late noting of an appeal. Some of these are –

(a) The extent of the delay;

(b) The reasonableness of the explanation for the delay;

(c) Whether the litigant himself is responsible for the delay;

(d) The prospects of success on appeal should the application be granted; and

(e) The possible prejudice to the respondent should the application be granted.

In Vigour Busilizwe Fuyana v Ntombaza Moyo SC54-06, the late CHIDYAUSIKU CJ…, stated the basic requirements as follows:

(a) A reasonable explanation for the failure to note the appeal within the prescribed period.

(b) Some prospects of success on the merits; and

(c) The bona fides of the application.

The applicant has, in my view, advanced plausible reasons for his failure to file an application for leave to appeal to the Supreme Court within the stipulated time frame.

The most critical factor rests on the prospects of success on appeal.

I am mindful of the fact, that, although a judge dealing with such application is not sitting as the Appellate Court per se, but, nonetheless, s/he is required to assess the prospects of success on appeal and not the success of the appeal.

The proposed Notice of Appeal becomes very relevant in such considerations.

The proposed grounds of appeal, in relation to the conviction, are based on three factors, namely;

(i) The warned and cautioned statements admissibility;

(ii) Circumstantial evidence; and

(iii) Intention to kill.

On the warned and cautioned statements, it is pertinent to note, that, the magistrate to whom the appellant and his co-accused were brought for confirmation of the warned and cautioned statement refused to confirm the statements of both after they indicated that they were severely assaulted by the police, and, this, in the court's view, was a layer of protection afforded to the accused persons.

The magistrate then directed that fresh statements be recorded - and this was done.

The fresh statements were produced by consent after withdrawal of the objection.

More poignantly, the court took into account other evidence in relation to the statements, more specifically, that “the impression given by the statement is that the deceased went down on his own volition. Whilst that may vary with the accused's version in court that he walked back to the boom gate, but the most important aspect of the statements is that he was alive. It is therefore inconceivable that the accused would have been threatened to admit denying the charge and admit having left the deceased alive and kicking.”…,.

The court also dealt extensively with the issue of circumstantial evidence.

It concluded that the deceased was left by the appellant and his co-accused in Marongoro Game Park which they knew was infested with wild animals. Clothes belonging to the deceased were found and the only conclusion that could be drawn from the facts is that he had died.

The court admitted that it relied on circumstantial evidence.

The court placed reliance on the reported decision in S v Shoniwa 1987 (1) ZLR 215 (S) in which the late DUMBUTSHENA CJ…, stated as follows…,:

“The law is that, on a criminal charge, the fact that a person was murdered can, like any other fact, be provided by actual evidence or circumstantial evidence if that evidence leads to that conclusion of fact, although no body or corpse was found.

The court must, as in any other criminal case, be satisfied, beyond reasonable doubt, of the guilt of the accused person.

In order to convict a person where no body has been found, there need be no confession establishing the guilt of the accused. There must be, however, sufficient evidence to establish the corpus delicti. That evidence can be wholly circumstantial provided it is sufficient to preclude every reasonable inference of the accused.”

The totality of the evidence led could only lead to the reasonable inference that the appellant and his co-accused left the deceased to die.

The essential elements of murder are set out in section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] as follows:

“(1) Any person who causes the death of another person -

(a) Intending to kill the other person; or

(b) Realizing that there is a real risk or possibility that his or her conduct may cause death; and
continues to engage in that conduct despite the risk or possibility, shall be guilty of murder.”

Section 47(1)(a) of the Criminal Law (Codification and Reform) Act relates to murder with actual intent and section 47(1)(b) of the Criminal Law (Codification and Reform) Act - murder with constructive intent.

The view by the respondent, at the trial, was that, the evidence did not prove murder with actual intent but with constructive intent.

Nonetheless, the applicant and his co-accused were found guilty of murder with actual intent.

The court considered that they abandoned the deceased in a place where he had no chances of survival; in a place where there were wild animals; and they did so in order to conceal their identify as the persons who had robbed the deceased.

In S v Gumbi 1994 (2) ZLR 323 & 327 EBRAHIM JA…, stated as follows in relation to murder with constructive intention:

“The point, in essence, is that there must be more negligence and more than gross negligence to constitute that form of recklessness which amounts to constructive intent or dolus eventualis. There must be, in the mind of the accused person, what has been called 'a volitional component'. In other words, he must, in effect, say to himself 'I know I may kill this person if I shoot but I am going to shoot anyway'.”

Section 11 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] deals with causation as follows:

“(1) A person shall not be held criminally liable for a consequence unless the person's conduct caused or substantially contributed to its occurrence.

(2) A person's conduct shall be deemed to have caused or substantially contributed to a consequence for the purposes of subsection (1) if the conduct -

(a) Is the factual cause of the consequence, that is, but for the conduct the consequence would not have occurred; and

(b) Is the legal cause of the consequence, that is, the consequence -

(i) Was a reasonably foreseeable consequence of his or her conduct; or

(ii) Was brought about by a new cause supervening after his or her conduct, which cause was itself a reasonably foreseeable consequence of his or her conduct.”

The totality of the evidence was such that the death was a direct result of the actions of the appellant and his co-accused.

They admitted robbing him of his vehicle and driving him to an area infested with wild animals.

However, it may be that a higher court may find that the applicant and his co-accused ought to have been found guilty of murder with constructive intent.

This is moreso given the fact that their actions may be those of persons who knew that the deceased may meet death in the park but they still went ahead and left him there.

In the closing submissions by the respondent at the trial…, it made the following submission:

“Although proof of murder with actual intent is not clearly proved by the evidence; by leaving the person at night, in the dark, in a game park with wild animals that can easily roam about during night time, the accused realised the real risk or possibility of death resulting from their conduct and may therefore convicted (sic) of murder with constructive intent under the circumstances as their actions can easily be said to have caused or substantially contributed to the death of the now deceased as contemplated by section 11 of the Criminal Law Code.”

In other words, the respondent supported a verdict of murder with constructive intent.

As for sentence, the major contention by the appellant is that the court paid lip service to the fact that the appellant is a youthful first offender, and, as a result, the sentence is so severe that it induces a sense of shock.

In S v Anderson 1964 (3) SA 494 (AD); and S v De Jager & Anor 1965 (2) SA 616 (AD)…, HOLMES JA said:

“It would not appear to be sufficiently realized that a court of appeal does not have a general discretion to ameliorate the sentences of trial courts. The matter is governed by principle.

It is the trial court which has the discretion, and a court of appeal cannot interfere unless the discretion was not judicially exercised; that is to say, unless the sentence is vitiated by irregularity or misdirection or is so severe that no reasonable court could have imposed it. In this latter regard, an accepted test is whether the sentence induces a sense of shock; that is to say, if there is a striking disparity between the sentence passed and that which the court of appeal would have imposed.

It should therefore be recognized that appellate jurisdiction to interfere with punishment is not discretionary but, on the contrary, is very limited.”

The accused was convicted of murder with actual intent, but, if a higher court finds that he ought to have been found guilty of murder with constructive intent, this may affect the sentence.

In any event, applications for leave to appeal against sentence should be treated less rigidly than those against conviction due to the fact that sentence is always discretionary.

Accordingly, it is ordered as follows:

1. The application for condonation for late noting of an application for leave to appeal to the Supreme Court against sentence and conviction be and is hereby granted.

2. The applicant shall file his application for leave to appeal to the Supreme Court within ten days from the date of service of this order on him.

3. The Registrar of the High Court, Harare is directed to ensure that the applicant is served with this order and confirms receipt and such proof shall be filed and become part of the record.

Robbery, Armed Robbery, Robbery Committed in Aggravating Circumstances and the Doctrine of Recent Possession


The applicant was, on the 29th of September 2013, convicted by this court of murder in terms of section 47(1)(a) of the Criminal Law [Codification and Reform] Act [Chapter 9:23]. He was sentenced to 25 years imprisonment.

On 6 June 2018, he filed an application for condonation for late noting of leave to appeal against both conviction and sentence.

In his explanation for the delay, three factors have been proffered by the applicant;

(a) That, he lost contact with the legal practitioner who represented him at the trial.

(b) That, he faced difficulties in accessing the record of proceedings even when he had engaged legal practitioners. The initial record supplied was not a complete one; and

(c) He faced financial constraints.

The applicant averred, that, he has good grounds of appeal against conviction in that the magistrate who confirmed his warned and cautioned statement erred in accepting that it be re-drafted.

He alleged that he challenged the initial confirmation of his warned and cautioned statement since he had been tortured by the police. He alleged that the indications made at the scene of the crime were stage-managed.

Further, that, apart from the warned and cautioned statement, there is no other evidence that links him to the offence.

The evidence, in his view, points to a verdict of murder with constructive intent in view of the circumstantial evidence.

With regard to sentence, the applicant averred, that, although he accepts that the court has discretion; in his case, the court failed to place due weight on the fact that he was a youthful offender who was aged 20 at the time of the commission of the offence. He thus deserved mercy and leniency as he could be rehabilitated.

The above largely forms part of his draft Notice of Appeal.

The respondent is not opposed to the relief sought and proffered three reasons as follows;

(a) The court based its ruling on circumstantial evidence since no body was found, and, another court may draw different inferences.

(b) It can be argued that the appellant can be found guilty of a lesser charge of culpable homicide since him and his co-accused left the deceased alive in an area that has wild animals and they ought to have reasonably forseen the possibility of him being devoured by wild animals.

(c) The applicant faced difficulties in procuring the record and he could also not raise legal fees for the appeal to be filed.

Section 44 of the High Court Act [Chapter 7:06] deals with appeals from the High Court to the Supreme Court as follows:

“(2) A person convicted on a criminal trial held by the High Court —

(a) May appeal to the Supreme Court against his conviction on any ground of appeal which involves a question of law alone;

(b) May, with the leave of a judge of the High Court, or, if a judge of the High Court refuses to grant leave, with the leave of a judge of the Supreme Court, appeal to the Supreme Court against his conviction on any ground of appeal which involves a question of fact alone or a question of mixed law and fact:

Provided that a person who appeals to the Supreme Court on a ground of appeal which involves a question of law alone may, without applying to a judge of the High Court, be granted leave to appeal by the Supreme Court should it appear to the Supreme Court, on the hearing of the appeal, that the ground of his appeal involves a question of mixed law and fact;

(e) May, where the sentence to which he was liable on conviction was not a sentence fixed by law, and where sentence of death was not passed upon him, with the leave of a judge of the High Court, or, if a judge of that court refuses to grant leave, with the leave of a judge of the Supreme Court, appeal to the Supreme Court against his sentence or order of forfeiture or other order following on conviction.”

This court, on numerous occasions, has exercised its mind on facts to consider when dealing with applications of this nature.

The 2013 Constitution has added a further dimension by making the right to appeal against conviction and sentence part of the declaration of rights: section 70(5) of the Constitution states, that, any person who has been tried for and convicted of an offence has the right, subject to reasonable restriction that may be prescribed by law, to appeal to a higher court against the conviction and sentence.

Apart from section 44 of the High Court Act, the other restrictions imposed by law are found in the High Court Rules, Orders 262-268.

In terms of Rule 267 “no application in terms of Rule 266 (application for condonation for failure to apply timeously) may be made after the expiry of twenty-four days from the date on which the sentence was passed, unless the judge orders otherwise.”

The current application has been made out of the time limits set, but, nonetheless, I have allowed the application to be made.

In applications of this nature, the South African approach has been set out in S v DiBlasi 1996 (1) SACR (1)…, as follows:

“The general approach of this court to applications of this kind is well established: see e.g. Federated Employers Fire & General Insurance Co. Ltd Anor v McKenzie 1969 (3) SA 360 (A) at 362 F-H; S v Adonis 1982 (4) SA 901 (A) at 908 H-909A; and Ferreira v Ntshingila 1990 (4) SA 271 (A) at 281 D-F.

Relevant considerations include the degree of non-compliance; the explanation therefor; the prospects of success; the importance of the case; the respondent's interests in the finality of the judgment; the convenience of the court; and the avoidance of unnecessary delays in the administration of justice.”

In De Kuszaba-Dabrowski et Uxor v Steel, N.O. 1966 RLR 60, BEADLE CJ set out the broad principles to be taken into account in considering an application for condonation of the late noting of an appeal. Some of these are –

(a) The extent of the delay;

(b) The reasonableness of the explanation for the delay;

(c) Whether the litigant himself is responsible for the delay;

(d) The prospects of success on appeal should the application be granted; and

(e) The possible prejudice to the respondent should the application be granted.

In Vigour Busilizwe Fuyana v Ntombaza Moyo SC54-06, the late CHIDYAUSIKU CJ…, stated the basic requirements as follows:

(a) A reasonable explanation for the failure to note the appeal within the prescribed period.

(b) Some prospects of success on the merits; and

(c) The bona fides of the application.

The applicant has, in my view, advanced plausible reasons for his failure to file an application for leave to appeal to the Supreme Court within the stipulated time frame.

The most critical factor rests on the prospects of success on appeal.

I am mindful of the fact, that, although a judge dealing with such application is not sitting as the Appellate Court per se, but, nonetheless, s/he is required to assess the prospects of success on appeal and not the success of the appeal.

The proposed Notice of Appeal becomes very relevant in such considerations.

The proposed grounds of appeal, in relation to the conviction, are based on three factors, namely;

(i) The warned and cautioned statements admissibility;

(ii) Circumstantial evidence; and

(iii) Intention to kill.

On the warned and cautioned statements, it is pertinent to note, that, the magistrate to whom the appellant and his co-accused were brought for confirmation of the warned and cautioned statement refused to confirm the statements of both after they indicated that they were severely assaulted by the police, and, this, in the court's view, was a layer of protection afforded to the accused persons.

The magistrate then directed that fresh statements be recorded - and this was done.

The fresh statements were produced by consent after withdrawal of the objection.

More poignantly, the court took into account other evidence in relation to the statements, more specifically, that “the impression given by the statement is that the deceased went down on his own volition. Whilst that may vary with the accused's version in court that he walked back to the boom gate, but the most important aspect of the statements is that he was alive. It is therefore inconceivable that the accused would have been threatened to admit denying the charge and admit having left the deceased alive and kicking.”…,.

The court also dealt extensively with the issue of circumstantial evidence.

It concluded that the deceased was left by the appellant and his co-accused in Marongoro Game Park which they knew was infested with wild animals. Clothes belonging to the deceased were found and the only conclusion that could be drawn from the facts is that he had died.

The court admitted that it relied on circumstantial evidence.

The court placed reliance on the reported decision in S v Shoniwa 1987 (1) ZLR 215 (S) in which the late DUMBUTSHENA CJ…, stated as follows…,:

“The law is that, on a criminal charge, the fact that a person was murdered can, like any other fact, be provided by actual evidence or circumstantial evidence if that evidence leads to that conclusion of fact, although no body or corpse was found.

The court must, as in any other criminal case, be satisfied, beyond reasonable doubt, of the guilt of the accused person.

In order to convict a person where no body has been found, there need be no confession establishing the guilt of the accused. There must be, however, sufficient evidence to establish the corpus delicti. That evidence can be wholly circumstantial provided it is sufficient to preclude every reasonable inference of the accused.”

The totality of the evidence led could only lead to the reasonable inference that the appellant and his co-accused left the deceased to die.

The essential elements of murder are set out in section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] as follows:

“(1) Any person who causes the death of another person -

(a) Intending to kill the other person; or

(b) Realizing that there is a real risk or possibility that his or her conduct may cause death; and
continues to engage in that conduct despite the risk or possibility, shall be guilty of murder.”

Section 47(1)(a) of the Criminal Law (Codification and Reform) Act relates to murder with actual intent and section 47(1)(b) of the Criminal Law (Codification and Reform) Act - murder with constructive intent.

The view by the respondent, at the trial, was that, the evidence did not prove murder with actual intent but with constructive intent.

Nonetheless, the applicant and his co-accused were found guilty of murder with actual intent.

The court considered that they abandoned the deceased in a place where he had no chances of survival; in a place where there were wild animals; and they did so in order to conceal their identify as the persons who had robbed the deceased.

In S v Gumbi 1994 (2) ZLR 323 & 327 EBRAHIM JA…, stated as follows in relation to murder with constructive intention:

“The point, in essence, is that there must be more negligence and more than gross negligence to constitute that form of recklessness which amounts to constructive intent or dolus eventualis. There must be, in the mind of the accused person, what has been called 'a volitional component'. In other words, he must, in effect, say to himself 'I know I may kill this person if I shoot but I am going to shoot anyway'.”

Section 11 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] deals with causation as follows:

“(1) A person shall not be held criminally liable for a consequence unless the person's conduct caused or substantially contributed to its occurrence.

(2) A person's conduct shall be deemed to have caused or substantially contributed to a consequence for the purposes of subsection (1) if the conduct -

(a) Is the factual cause of the consequence, that is, but for the conduct the consequence would not have occurred; and

(b) Is the legal cause of the consequence, that is, the consequence -

(i) Was a reasonably foreseeable consequence of his or her conduct; or

(ii) Was brought about by a new cause supervening after his or her conduct, which cause was itself a reasonably foreseeable consequence of his or her conduct.”

The totality of the evidence was such that the death was a direct result of the actions of the appellant and his co-accused.

They admitted robbing him of his vehicle and driving him to an area infested with wild animals.

However, it may be that a higher court may find that the applicant and his co-accused ought to have been found guilty of murder with constructive intent.

This is moreso given the fact that their actions may be those of persons who knew that the deceased may meet death in the park but they still went ahead and left him there.

In the closing submissions by the respondent at the trial…, it made the following submission:

“Although proof of murder with actual intent is not clearly proved by the evidence; by leaving the person at night, in the dark, in a game park with wild animals that can easily roam about during night time, the accused realised the real risk or possibility of death resulting from their conduct and may therefore convicted (sic) of murder with constructive intent under the circumstances as their actions can easily be said to have caused or substantially contributed to the death of the now deceased as contemplated by section 11 of the Criminal Law Code.”

In other words, the respondent supported a verdict of murder with constructive intent.

As for sentence, the major contention by the appellant is that the court paid lip service to the fact that the appellant is a youthful first offender, and, as a result, the sentence is so severe that it induces a sense of shock.

In S v Anderson 1964 (3) SA 494 (AD); and S v De Jager & Anor 1965 (2) SA 616 (AD)…, HOLMES JA said:

“It would not appear to be sufficiently realized that a court of appeal does not have a general discretion to ameliorate the sentences of trial courts. The matter is governed by principle.

It is the trial court which has the discretion, and a court of appeal cannot interfere unless the discretion was not judicially exercised; that is to say, unless the sentence is vitiated by irregularity or misdirection or is so severe that no reasonable court could have imposed it. In this latter regard, an accepted test is whether the sentence induces a sense of shock; that is to say, if there is a striking disparity between the sentence passed and that which the court of appeal would have imposed.

It should therefore be recognized that appellate jurisdiction to interfere with punishment is not discretionary but, on the contrary, is very limited.”

The accused was convicted of murder with actual intent, but, if a higher court finds that he ought to have been found guilty of murder with constructive intent, this may affect the sentence.

In any event, applications for leave to appeal against sentence should be treated less rigidly than those against conviction due to the fact that sentence is always discretionary.

Accordingly, it is ordered as follows:

1. The application for condonation for late noting of an application for leave to appeal to the Supreme Court against sentence and conviction be and is hereby granted.

2. The applicant shall file his application for leave to appeal to the Supreme Court within ten days from the date of service of this order on him.

3. The Registrar of the High Court, Harare is directed to ensure that the applicant is served with this order and confirms receipt and such proof shall be filed and become part of the record.

Direct and Circumstantial Evidence, Causation, Inferential Reasoning, Confessions & the Principle of Evidence Aliunde


The applicant was, on the 29th of September 2013, convicted by this court of murder in terms of section 47(1)(a) of the Criminal Law [Codification and Reform] Act [Chapter 9:23]. He was sentenced to 25 years imprisonment.

On 6 June 2018, he filed an application for condonation for late noting of leave to appeal against both conviction and sentence.

In his explanation for the delay, three factors have been proffered by the applicant;

(a) That, he lost contact with the legal practitioner who represented him at the trial.

(b) That, he faced difficulties in accessing the record of proceedings even when he had engaged legal practitioners. The initial record supplied was not a complete one; and

(c) He faced financial constraints.

The applicant averred, that, he has good grounds of appeal against conviction in that the magistrate who confirmed his warned and cautioned statement erred in accepting that it be re-drafted.

He alleged that he challenged the initial confirmation of his warned and cautioned statement since he had been tortured by the police. He alleged that the indications made at the scene of the crime were stage-managed.

Further, that, apart from the warned and cautioned statement, there is no other evidence that links him to the offence.

The evidence, in his view, points to a verdict of murder with constructive intent in view of the circumstantial evidence.

With regard to sentence, the applicant averred, that, although he accepts that the court has discretion; in his case, the court failed to place due weight on the fact that he was a youthful offender who was aged 20 at the time of the commission of the offence. He thus deserved mercy and leniency as he could be rehabilitated.

The above largely forms part of his draft Notice of Appeal.

The respondent is not opposed to the relief sought and proffered three reasons as follows;

(a) The court based its ruling on circumstantial evidence since no body was found, and, another court may draw different inferences.

(b) It can be argued that the appellant can be found guilty of a lesser charge of culpable homicide since him and his co-accused left the deceased alive in an area that has wild animals and they ought to have reasonably forseen the possibility of him being devoured by wild animals.

(c) The applicant faced difficulties in procuring the record and he could also not raise legal fees for the appeal to be filed.

Section 44 of the High Court Act [Chapter 7:06] deals with appeals from the High Court to the Supreme Court as follows:

“(2) A person convicted on a criminal trial held by the High Court —

(a) May appeal to the Supreme Court against his conviction on any ground of appeal which involves a question of law alone;

(b) May, with the leave of a judge of the High Court, or, if a judge of the High Court refuses to grant leave, with the leave of a judge of the Supreme Court, appeal to the Supreme Court against his conviction on any ground of appeal which involves a question of fact alone or a question of mixed law and fact:

Provided that a person who appeals to the Supreme Court on a ground of appeal which involves a question of law alone may, without applying to a judge of the High Court, be granted leave to appeal by the Supreme Court should it appear to the Supreme Court, on the hearing of the appeal, that the ground of his appeal involves a question of mixed law and fact;

(e) May, where the sentence to which he was liable on conviction was not a sentence fixed by law, and where sentence of death was not passed upon him, with the leave of a judge of the High Court, or, if a judge of that court refuses to grant leave, with the leave of a judge of the Supreme Court, appeal to the Supreme Court against his sentence or order of forfeiture or other order following on conviction.”

This court, on numerous occasions, has exercised its mind on facts to consider when dealing with applications of this nature.

The 2013 Constitution has added a further dimension by making the right to appeal against conviction and sentence part of the declaration of rights: section 70(5) of the Constitution states, that, any person who has been tried for and convicted of an offence has the right, subject to reasonable restriction that may be prescribed by law, to appeal to a higher court against the conviction and sentence.

Apart from section 44 of the High Court Act, the other restrictions imposed by law are found in the High Court Rules, Orders 262-268.

In terms of Rule 267 “no application in terms of Rule 266 (application for condonation for failure to apply timeously) may be made after the expiry of twenty-four days from the date on which the sentence was passed, unless the judge orders otherwise.”

The current application has been made out of the time limits set, but, nonetheless, I have allowed the application to be made.

In applications of this nature, the South African approach has been set out in S v DiBlasi 1996 (1) SACR (1)…, as follows:

“The general approach of this court to applications of this kind is well established: see e.g. Federated Employers Fire & General Insurance Co. Ltd Anor v McKenzie 1969 (3) SA 360 (A) at 362 F-H; S v Adonis 1982 (4) SA 901 (A) at 908 H-909A; and Ferreira v Ntshingila 1990 (4) SA 271 (A) at 281 D-F.

Relevant considerations include the degree of non-compliance; the explanation therefor; the prospects of success; the importance of the case; the respondent's interests in the finality of the judgment; the convenience of the court; and the avoidance of unnecessary delays in the administration of justice.”

In De Kuszaba-Dabrowski et Uxor v Steel, N.O. 1966 RLR 60, BEADLE CJ set out the broad principles to be taken into account in considering an application for condonation of the late noting of an appeal. Some of these are –

(a) The extent of the delay;

(b) The reasonableness of the explanation for the delay;

(c) Whether the litigant himself is responsible for the delay;

(d) The prospects of success on appeal should the application be granted; and

(e) The possible prejudice to the respondent should the application be granted.

In Vigour Busilizwe Fuyana v Ntombaza Moyo SC54-06, the late CHIDYAUSIKU CJ…, stated the basic requirements as follows:

(a) A reasonable explanation for the failure to note the appeal within the prescribed period.

(b) Some prospects of success on the merits; and

(c) The bona fides of the application.

The applicant has, in my view, advanced plausible reasons for his failure to file an application for leave to appeal to the Supreme Court within the stipulated time frame.

The most critical factor rests on the prospects of success on appeal.

I am mindful of the fact, that, although a judge dealing with such application is not sitting as the Appellate Court per se, but, nonetheless, s/he is required to assess the prospects of success on appeal and not the success of the appeal.

The proposed Notice of Appeal becomes very relevant in such considerations.

The proposed grounds of appeal, in relation to the conviction, are based on three factors, namely;

(i) The warned and cautioned statements admissibility;

(ii) Circumstantial evidence; and

(iii) Intention to kill.

On the warned and cautioned statements, it is pertinent to note, that, the magistrate to whom the appellant and his co-accused were brought for confirmation of the warned and cautioned statement refused to confirm the statements of both after they indicated that they were severely assaulted by the police, and, this, in the court's view, was a layer of protection afforded to the accused persons.

The magistrate then directed that fresh statements be recorded - and this was done.

The fresh statements were produced by consent after withdrawal of the objection.

More poignantly, the court took into account other evidence in relation to the statements, more specifically, that “the impression given by the statement is that the deceased went down on his own volition. Whilst that may vary with the accused's version in court that he walked back to the boom gate, but the most important aspect of the statements is that he was alive. It is therefore inconceivable that the accused would have been threatened to admit denying the charge and admit having left the deceased alive and kicking.”…,.

The court also dealt extensively with the issue of circumstantial evidence.

It concluded that the deceased was left by the appellant and his co-accused in Marongoro Game Park which they knew was infested with wild animals. Clothes belonging to the deceased were found and the only conclusion that could be drawn from the facts is that he had died.

The court admitted that it relied on circumstantial evidence.

The court placed reliance on the reported decision in S v Shoniwa 1987 (1) ZLR 215 (S) in which the late DUMBUTSHENA CJ…, stated as follows…,:

“The law is that, on a criminal charge, the fact that a person was murdered can, like any other fact, be provided by actual evidence or circumstantial evidence if that evidence leads to that conclusion of fact, although no body or corpse was found.

The court must, as in any other criminal case, be satisfied, beyond reasonable doubt, of the guilt of the accused person.

In order to convict a person where no body has been found, there need be no confession establishing the guilt of the accused. There must be, however, sufficient evidence to establish the corpus delicti. That evidence can be wholly circumstantial provided it is sufficient to preclude every reasonable inference of the accused.”

The totality of the evidence led could only lead to the reasonable inference that the appellant and his co-accused left the deceased to die.

The essential elements of murder are set out in section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] as follows:

“(1) Any person who causes the death of another person -

(a) Intending to kill the other person; or

(b) Realizing that there is a real risk or possibility that his or her conduct may cause death; and
continues to engage in that conduct despite the risk or possibility, shall be guilty of murder.”

Section 47(1)(a) of the Criminal Law (Codification and Reform) Act relates to murder with actual intent and section 47(1)(b) of the Criminal Law (Codification and Reform) Act - murder with constructive intent.

The view by the respondent, at the trial, was that, the evidence did not prove murder with actual intent but with constructive intent.

Nonetheless, the applicant and his co-accused were found guilty of murder with actual intent.

The court considered that they abandoned the deceased in a place where he had no chances of survival; in a place where there were wild animals; and they did so in order to conceal their identify as the persons who had robbed the deceased.

In S v Gumbi 1994 (2) ZLR 323 & 327 EBRAHIM JA…, stated as follows in relation to murder with constructive intention:

“The point, in essence, is that there must be more negligence and more than gross negligence to constitute that form of recklessness which amounts to constructive intent or dolus eventualis. There must be, in the mind of the accused person, what has been called 'a volitional component'. In other words, he must, in effect, say to himself 'I know I may kill this person if I shoot but I am going to shoot anyway'.”

Section 11 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] deals with causation as follows:

“(1) A person shall not be held criminally liable for a consequence unless the person's conduct caused or substantially contributed to its occurrence.

(2) A person's conduct shall be deemed to have caused or substantially contributed to a consequence for the purposes of subsection (1) if the conduct -

(a) Is the factual cause of the consequence, that is, but for the conduct the consequence would not have occurred; and

(b) Is the legal cause of the consequence, that is, the consequence -

(i) Was a reasonably foreseeable consequence of his or her conduct; or

(ii) Was brought about by a new cause supervening after his or her conduct, which cause was itself a reasonably foreseeable consequence of his or her conduct.”

The totality of the evidence was such that the death was a direct result of the actions of the appellant and his co-accused.

They admitted robbing him of his vehicle and driving him to an area infested with wild animals.

However, it may be that a higher court may find that the applicant and his co-accused ought to have been found guilty of murder with constructive intent.

This is moreso given the fact that their actions may be those of persons who knew that the deceased may meet death in the park but they still went ahead and left him there.

In the closing submissions by the respondent at the trial…, it made the following submission:

“Although proof of murder with actual intent is not clearly proved by the evidence; by leaving the person at night, in the dark, in a game park with wild animals that can easily roam about during night time, the accused realised the real risk or possibility of death resulting from their conduct and may therefore convicted (sic) of murder with constructive intent under the circumstances as their actions can easily be said to have caused or substantially contributed to the death of the now deceased as contemplated by section 11 of the Criminal Law Code.”

In other words, the respondent supported a verdict of murder with constructive intent.

As for sentence, the major contention by the appellant is that the court paid lip service to the fact that the appellant is a youthful first offender, and, as a result, the sentence is so severe that it induces a sense of shock.

In S v Anderson 1964 (3) SA 494 (AD); and S v De Jager & Anor 1965 (2) SA 616 (AD)…, HOLMES JA said:

“It would not appear to be sufficiently realized that a court of appeal does not have a general discretion to ameliorate the sentences of trial courts. The matter is governed by principle.

It is the trial court which has the discretion, and a court of appeal cannot interfere unless the discretion was not judicially exercised; that is to say, unless the sentence is vitiated by irregularity or misdirection or is so severe that no reasonable court could have imposed it. In this latter regard, an accepted test is whether the sentence induces a sense of shock; that is to say, if there is a striking disparity between the sentence passed and that which the court of appeal would have imposed.

It should therefore be recognized that appellate jurisdiction to interfere with punishment is not discretionary but, on the contrary, is very limited.”

The accused was convicted of murder with actual intent, but, if a higher court finds that he ought to have been found guilty of murder with constructive intent, this may affect the sentence.

In any event, applications for leave to appeal against sentence should be treated less rigidly than those against conviction due to the fact that sentence is always discretionary.

Accordingly, it is ordered as follows:

1. The application for condonation for late noting of an application for leave to appeal to the Supreme Court against sentence and conviction be and is hereby granted.

2. The applicant shall file his application for leave to appeal to the Supreme Court within ten days from the date of service of this order on him.

3. The Registrar of the High Court, Harare is directed to ensure that the applicant is served with this order and confirms receipt and such proof shall be filed and become part of the record.

Murder and Permissible or Competent Verdicts re: Approach, Intent, Motive, Corpse, Cause of Death & Inquest Proceedings


The applicant was, on the 29th of September 2013, convicted by this court of murder in terms of section 47(1)(a) of the Criminal Law [Codification and Reform] Act [Chapter 9:23]. He was sentenced to 25 years imprisonment.

On 6 June 2018, he filed an application for condonation for late noting of leave to appeal against both conviction and sentence.

In his explanation for the delay, three factors have been proffered by the applicant;

(a) That, he lost contact with the legal practitioner who represented him at the trial.

(b) That, he faced difficulties in accessing the record of proceedings even when he had engaged legal practitioners. The initial record supplied was not a complete one; and

(c) He faced financial constraints.

The applicant averred, that, he has good grounds of appeal against conviction in that the magistrate who confirmed his warned and cautioned statement erred in accepting that it be re-drafted.

He alleged that he challenged the initial confirmation of his warned and cautioned statement since he had been tortured by the police. He alleged that the indications made at the scene of the crime were stage-managed.

Further, that, apart from the warned and cautioned statement, there is no other evidence that links him to the offence.

The evidence, in his view, points to a verdict of murder with constructive intent in view of the circumstantial evidence.

With regard to sentence, the applicant averred, that, although he accepts that the court has discretion; in his case, the court failed to place due weight on the fact that he was a youthful offender who was aged 20 at the time of the commission of the offence. He thus deserved mercy and leniency as he could be rehabilitated.

The above largely forms part of his draft Notice of Appeal.

The respondent is not opposed to the relief sought and proffered three reasons as follows;

(a) The court based its ruling on circumstantial evidence since no body was found, and, another court may draw different inferences.

(b) It can be argued that the appellant can be found guilty of a lesser charge of culpable homicide since him and his co-accused left the deceased alive in an area that has wild animals and they ought to have reasonably forseen the possibility of him being devoured by wild animals.

(c) The applicant faced difficulties in procuring the record and he could also not raise legal fees for the appeal to be filed.

Section 44 of the High Court Act [Chapter 7:06] deals with appeals from the High Court to the Supreme Court as follows:

“(2) A person convicted on a criminal trial held by the High Court —

(a) May appeal to the Supreme Court against his conviction on any ground of appeal which involves a question of law alone;

(b) May, with the leave of a judge of the High Court, or, if a judge of the High Court refuses to grant leave, with the leave of a judge of the Supreme Court, appeal to the Supreme Court against his conviction on any ground of appeal which involves a question of fact alone or a question of mixed law and fact:

Provided that a person who appeals to the Supreme Court on a ground of appeal which involves a question of law alone may, without applying to a judge of the High Court, be granted leave to appeal by the Supreme Court should it appear to the Supreme Court, on the hearing of the appeal, that the ground of his appeal involves a question of mixed law and fact;

(e) May, where the sentence to which he was liable on conviction was not a sentence fixed by law, and where sentence of death was not passed upon him, with the leave of a judge of the High Court, or, if a judge of that court refuses to grant leave, with the leave of a judge of the Supreme Court, appeal to the Supreme Court against his sentence or order of forfeiture or other order following on conviction.”

This court, on numerous occasions, has exercised its mind on facts to consider when dealing with applications of this nature.

The 2013 Constitution has added a further dimension by making the right to appeal against conviction and sentence part of the declaration of rights: section 70(5) of the Constitution states, that, any person who has been tried for and convicted of an offence has the right, subject to reasonable restriction that may be prescribed by law, to appeal to a higher court against the conviction and sentence.

Apart from section 44 of the High Court Act, the other restrictions imposed by law are found in the High Court Rules, Orders 262-268.

In terms of Rule 267 “no application in terms of Rule 266 (application for condonation for failure to apply timeously) may be made after the expiry of twenty-four days from the date on which the sentence was passed, unless the judge orders otherwise.”

The current application has been made out of the time limits set, but, nonetheless, I have allowed the application to be made.

In applications of this nature, the South African approach has been set out in S v DiBlasi 1996 (1) SACR (1)…, as follows:

“The general approach of this court to applications of this kind is well established: see e.g. Federated Employers Fire & General Insurance Co. Ltd Anor v McKenzie 1969 (3) SA 360 (A) at 362 F-H; S v Adonis 1982 (4) SA 901 (A) at 908 H-909A; and Ferreira v Ntshingila 1990 (4) SA 271 (A) at 281 D-F.

Relevant considerations include the degree of non-compliance; the explanation therefor; the prospects of success; the importance of the case; the respondent's interests in the finality of the judgment; the convenience of the court; and the avoidance of unnecessary delays in the administration of justice.”

In De Kuszaba-Dabrowski et Uxor v Steel, N.O. 1966 RLR 60, BEADLE CJ set out the broad principles to be taken into account in considering an application for condonation of the late noting of an appeal. Some of these are –

(a) The extent of the delay;

(b) The reasonableness of the explanation for the delay;

(c) Whether the litigant himself is responsible for the delay;

(d) The prospects of success on appeal should the application be granted; and

(e) The possible prejudice to the respondent should the application be granted.

In Vigour Busilizwe Fuyana v Ntombaza Moyo SC54-06, the late CHIDYAUSIKU CJ…, stated the basic requirements as follows:

(a) A reasonable explanation for the failure to note the appeal within the prescribed period.

(b) Some prospects of success on the merits; and

(c) The bona fides of the application.

The applicant has, in my view, advanced plausible reasons for his failure to file an application for leave to appeal to the Supreme Court within the stipulated time frame.

The most critical factor rests on the prospects of success on appeal.

I am mindful of the fact, that, although a judge dealing with such application is not sitting as the Appellate Court per se, but, nonetheless, s/he is required to assess the prospects of success on appeal and not the success of the appeal.

The proposed Notice of Appeal becomes very relevant in such considerations.

The proposed grounds of appeal, in relation to the conviction, are based on three factors, namely;

(i) The warned and cautioned statements admissibility;

(ii) Circumstantial evidence; and

(iii) Intention to kill.

On the warned and cautioned statements, it is pertinent to note, that, the magistrate to whom the appellant and his co-accused were brought for confirmation of the warned and cautioned statement refused to confirm the statements of both after they indicated that they were severely assaulted by the police, and, this, in the court's view, was a layer of protection afforded to the accused persons.

The magistrate then directed that fresh statements be recorded - and this was done.

The fresh statements were produced by consent after withdrawal of the objection.

More poignantly, the court took into account other evidence in relation to the statements, more specifically, that “the impression given by the statement is that the deceased went down on his own volition. Whilst that may vary with the accused's version in court that he walked back to the boom gate, but the most important aspect of the statements is that he was alive. It is therefore inconceivable that the accused would have been threatened to admit denying the charge and admit having left the deceased alive and kicking.”…,.

The court also dealt extensively with the issue of circumstantial evidence.

It concluded that the deceased was left by the appellant and his co-accused in Marongoro Game Park which they knew was infested with wild animals. Clothes belonging to the deceased were found and the only conclusion that could be drawn from the facts is that he had died.

The court admitted that it relied on circumstantial evidence.

The court placed reliance on the reported decision in S v Shoniwa 1987 (1) ZLR 215 (S) in which the late DUMBUTSHENA CJ…, stated as follows…,:

“The law is that, on a criminal charge, the fact that a person was murdered can, like any other fact, be provided by actual evidence or circumstantial evidence if that evidence leads to that conclusion of fact, although no body or corpse was found.

The court must, as in any other criminal case, be satisfied, beyond reasonable doubt, of the guilt of the accused person.

In order to convict a person where no body has been found, there need be no confession establishing the guilt of the accused. There must be, however, sufficient evidence to establish the corpus delicti. That evidence can be wholly circumstantial provided it is sufficient to preclude every reasonable inference of the accused.”

The totality of the evidence led could only lead to the reasonable inference that the appellant and his co-accused left the deceased to die.

The essential elements of murder are set out in section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] as follows:

“(1) Any person who causes the death of another person -

(a) Intending to kill the other person; or

(b) Realizing that there is a real risk or possibility that his or her conduct may cause death; and
continues to engage in that conduct despite the risk or possibility, shall be guilty of murder.”

Section 47(1)(a) of the Criminal Law (Codification and Reform) Act relates to murder with actual intent and section 47(1)(b) of the Criminal Law (Codification and Reform) Act - murder with constructive intent.

The view by the respondent, at the trial, was that, the evidence did not prove murder with actual intent but with constructive intent.

Nonetheless, the applicant and his co-accused were found guilty of murder with actual intent.

The court considered that they abandoned the deceased in a place where he had no chances of survival; in a place where there were wild animals; and they did so in order to conceal their identify as the persons who had robbed the deceased.

In S v Gumbi 1994 (2) ZLR 323 & 327 EBRAHIM JA…, stated as follows in relation to murder with constructive intention:

“The point, in essence, is that there must be more negligence and more than gross negligence to constitute that form of recklessness which amounts to constructive intent or dolus eventualis. There must be, in the mind of the accused person, what has been called 'a volitional component'. In other words, he must, in effect, say to himself 'I know I may kill this person if I shoot but I am going to shoot anyway'.”

Section 11 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] deals with causation as follows:

“(1) A person shall not be held criminally liable for a consequence unless the person's conduct caused or substantially contributed to its occurrence.

(2) A person's conduct shall be deemed to have caused or substantially contributed to a consequence for the purposes of subsection (1) if the conduct -

(a) Is the factual cause of the consequence, that is, but for the conduct the consequence would not have occurred; and

(b) Is the legal cause of the consequence, that is, the consequence -

(i) Was a reasonably foreseeable consequence of his or her conduct; or

(ii) Was brought about by a new cause supervening after his or her conduct, which cause was itself a reasonably foreseeable consequence of his or her conduct.”

The totality of the evidence was such that the death was a direct result of the actions of the appellant and his co-accused.

They admitted robbing him of his vehicle and driving him to an area infested with wild animals.

However, it may be that a higher court may find that the applicant and his co-accused ought to have been found guilty of murder with constructive intent.

This is moreso given the fact that their actions may be those of persons who knew that the deceased may meet death in the park but they still went ahead and left him there.

In the closing submissions by the respondent at the trial…, it made the following submission:

“Although proof of murder with actual intent is not clearly proved by the evidence; by leaving the person at night, in the dark, in a game park with wild animals that can easily roam about during night time, the accused realised the real risk or possibility of death resulting from their conduct and may therefore convicted (sic) of murder with constructive intent under the circumstances as their actions can easily be said to have caused or substantially contributed to the death of the now deceased as contemplated by section 11 of the Criminal Law Code.”

In other words, the respondent supported a verdict of murder with constructive intent.

As for sentence, the major contention by the appellant is that the court paid lip service to the fact that the appellant is a youthful first offender, and, as a result, the sentence is so severe that it induces a sense of shock.

In S v Anderson 1964 (3) SA 494 (AD); and S v De Jager & Anor 1965 (2) SA 616 (AD)…, HOLMES JA said:

“It would not appear to be sufficiently realized that a court of appeal does not have a general discretion to ameliorate the sentences of trial courts. The matter is governed by principle.

It is the trial court which has the discretion, and a court of appeal cannot interfere unless the discretion was not judicially exercised; that is to say, unless the sentence is vitiated by irregularity or misdirection or is so severe that no reasonable court could have imposed it. In this latter regard, an accepted test is whether the sentence induces a sense of shock; that is to say, if there is a striking disparity between the sentence passed and that which the court of appeal would have imposed.

It should therefore be recognized that appellate jurisdiction to interfere with punishment is not discretionary but, on the contrary, is very limited.”

The accused was convicted of murder with actual intent, but, if a higher court finds that he ought to have been found guilty of murder with constructive intent, this may affect the sentence.

In any event, applications for leave to appeal against sentence should be treated less rigidly than those against conviction due to the fact that sentence is always discretionary.

Accordingly, it is ordered as follows:

1. The application for condonation for late noting of an application for leave to appeal to the Supreme Court against sentence and conviction be and is hereby granted.

2. The applicant shall file his application for leave to appeal to the Supreme Court within ten days from the date of service of this order on him.

3. The Registrar of the High Court, Harare is directed to ensure that the applicant is served with this order and confirms receipt and such proof shall be filed and become part of the record.

Indictment or Charge re: Charge Sheet, Framing of Charges, Essential Elements, Causation, Intention & Competent Verdict


The applicant was, on the 29th of September 2013, convicted by this court of murder in terms of section 47(1)(a) of the Criminal Law [Codification and Reform] Act [Chapter 9:23]. He was sentenced to 25 years imprisonment.

On 6 June 2018, he filed an application for condonation for late noting of leave to appeal against both conviction and sentence.

In his explanation for the delay, three factors have been proffered by the applicant;

(a) That, he lost contact with the legal practitioner who represented him at the trial.

(b) That, he faced difficulties in accessing the record of proceedings even when he had engaged legal practitioners. The initial record supplied was not a complete one; and

(c) He faced financial constraints.

The applicant averred, that, he has good grounds of appeal against conviction in that the magistrate who confirmed his warned and cautioned statement erred in accepting that it be re-drafted.

He alleged that he challenged the initial confirmation of his warned and cautioned statement since he had been tortured by the police. He alleged that the indications made at the scene of the crime were stage-managed.

Further, that, apart from the warned and cautioned statement, there is no other evidence that links him to the offence.

The evidence, in his view, points to a verdict of murder with constructive intent in view of the circumstantial evidence.

With regard to sentence, the applicant averred, that, although he accepts that the court has discretion; in his case, the court failed to place due weight on the fact that he was a youthful offender who was aged 20 at the time of the commission of the offence. He thus deserved mercy and leniency as he could be rehabilitated.

The above largely forms part of his draft Notice of Appeal.

The respondent is not opposed to the relief sought and proffered three reasons as follows;

(a) The court based its ruling on circumstantial evidence since no body was found, and, another court may draw different inferences.

(b) It can be argued that the appellant can be found guilty of a lesser charge of culpable homicide since him and his co-accused left the deceased alive in an area that has wild animals and they ought to have reasonably forseen the possibility of him being devoured by wild animals.

(c) The applicant faced difficulties in procuring the record and he could also not raise legal fees for the appeal to be filed.

Section 44 of the High Court Act [Chapter 7:06] deals with appeals from the High Court to the Supreme Court as follows:

“(2) A person convicted on a criminal trial held by the High Court —

(a) May appeal to the Supreme Court against his conviction on any ground of appeal which involves a question of law alone;

(b) May, with the leave of a judge of the High Court, or, if a judge of the High Court refuses to grant leave, with the leave of a judge of the Supreme Court, appeal to the Supreme Court against his conviction on any ground of appeal which involves a question of fact alone or a question of mixed law and fact:

Provided that a person who appeals to the Supreme Court on a ground of appeal which involves a question of law alone may, without applying to a judge of the High Court, be granted leave to appeal by the Supreme Court should it appear to the Supreme Court, on the hearing of the appeal, that the ground of his appeal involves a question of mixed law and fact;

(e) May, where the sentence to which he was liable on conviction was not a sentence fixed by law, and where sentence of death was not passed upon him, with the leave of a judge of the High Court, or, if a judge of that court refuses to grant leave, with the leave of a judge of the Supreme Court, appeal to the Supreme Court against his sentence or order of forfeiture or other order following on conviction.”

This court, on numerous occasions, has exercised its mind on facts to consider when dealing with applications of this nature.

The 2013 Constitution has added a further dimension by making the right to appeal against conviction and sentence part of the declaration of rights: section 70(5) of the Constitution states, that, any person who has been tried for and convicted of an offence has the right, subject to reasonable restriction that may be prescribed by law, to appeal to a higher court against the conviction and sentence.

Apart from section 44 of the High Court Act, the other restrictions imposed by law are found in the High Court Rules, Orders 262-268.

In terms of Rule 267 “no application in terms of Rule 266 (application for condonation for failure to apply timeously) may be made after the expiry of twenty-four days from the date on which the sentence was passed, unless the judge orders otherwise.”

The current application has been made out of the time limits set, but, nonetheless, I have allowed the application to be made.

In applications of this nature, the South African approach has been set out in S v DiBlasi 1996 (1) SACR (1)…, as follows:

“The general approach of this court to applications of this kind is well established: see e.g. Federated Employers Fire & General Insurance Co. Ltd Anor v McKenzie 1969 (3) SA 360 (A) at 362 F-H; S v Adonis 1982 (4) SA 901 (A) at 908 H-909A; and Ferreira v Ntshingila 1990 (4) SA 271 (A) at 281 D-F.

Relevant considerations include the degree of non-compliance; the explanation therefor; the prospects of success; the importance of the case; the respondent's interests in the finality of the judgment; the convenience of the court; and the avoidance of unnecessary delays in the administration of justice.”

In De Kuszaba-Dabrowski et Uxor v Steel, N.O. 1966 RLR 60, BEADLE CJ set out the broad principles to be taken into account in considering an application for condonation of the late noting of an appeal. Some of these are –

(a) The extent of the delay;

(b) The reasonableness of the explanation for the delay;

(c) Whether the litigant himself is responsible for the delay;

(d) The prospects of success on appeal should the application be granted; and

(e) The possible prejudice to the respondent should the application be granted.

In Vigour Busilizwe Fuyana v Ntombaza Moyo SC54-06, the late CHIDYAUSIKU CJ…, stated the basic requirements as follows:

(a) A reasonable explanation for the failure to note the appeal within the prescribed period.

(b) Some prospects of success on the merits; and

(c) The bona fides of the application.

The applicant has, in my view, advanced plausible reasons for his failure to file an application for leave to appeal to the Supreme Court within the stipulated time frame.

The most critical factor rests on the prospects of success on appeal.

I am mindful of the fact, that, although a judge dealing with such application is not sitting as the Appellate Court per se, but, nonetheless, s/he is required to assess the prospects of success on appeal and not the success of the appeal.

The proposed Notice of Appeal becomes very relevant in such considerations.

The proposed grounds of appeal, in relation to the conviction, are based on three factors, namely;

(i) The warned and cautioned statements admissibility;

(ii) Circumstantial evidence; and

(iii) Intention to kill.

On the warned and cautioned statements, it is pertinent to note, that, the magistrate to whom the appellant and his co-accused were brought for confirmation of the warned and cautioned statement refused to confirm the statements of both after they indicated that they were severely assaulted by the police, and, this, in the court's view, was a layer of protection afforded to the accused persons.

The magistrate then directed that fresh statements be recorded - and this was done.

The fresh statements were produced by consent after withdrawal of the objection.

More poignantly, the court took into account other evidence in relation to the statements, more specifically, that “the impression given by the statement is that the deceased went down on his own volition. Whilst that may vary with the accused's version in court that he walked back to the boom gate, but the most important aspect of the statements is that he was alive. It is therefore inconceivable that the accused would have been threatened to admit denying the charge and admit having left the deceased alive and kicking.”…,.

The court also dealt extensively with the issue of circumstantial evidence.

It concluded that the deceased was left by the appellant and his co-accused in Marongoro Game Park which they knew was infested with wild animals. Clothes belonging to the deceased were found and the only conclusion that could be drawn from the facts is that he had died.

The court admitted that it relied on circumstantial evidence.

The court placed reliance on the reported decision in S v Shoniwa 1987 (1) ZLR 215 (S) in which the late DUMBUTSHENA CJ…, stated as follows…,:

“The law is that, on a criminal charge, the fact that a person was murdered can, like any other fact, be provided by actual evidence or circumstantial evidence if that evidence leads to that conclusion of fact, although no body or corpse was found.

The court must, as in any other criminal case, be satisfied, beyond reasonable doubt, of the guilt of the accused person.

In order to convict a person where no body has been found, there need be no confession establishing the guilt of the accused. There must be, however, sufficient evidence to establish the corpus delicti. That evidence can be wholly circumstantial provided it is sufficient to preclude every reasonable inference of the accused.”

The totality of the evidence led could only lead to the reasonable inference that the appellant and his co-accused left the deceased to die.

The essential elements of murder are set out in section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] as follows:

“(1) Any person who causes the death of another person -

(a) Intending to kill the other person; or

(b) Realizing that there is a real risk or possibility that his or her conduct may cause death; and
continues to engage in that conduct despite the risk or possibility, shall be guilty of murder.”

Section 47(1)(a) of the Criminal Law (Codification and Reform) Act relates to murder with actual intent and section 47(1)(b) of the Criminal Law (Codification and Reform) Act - murder with constructive intent.

The view by the respondent, at the trial, was that, the evidence did not prove murder with actual intent but with constructive intent.

Nonetheless, the applicant and his co-accused were found guilty of murder with actual intent.

The court considered that they abandoned the deceased in a place where he had no chances of survival; in a place where there were wild animals; and they did so in order to conceal their identify as the persons who had robbed the deceased.

In S v Gumbi 1994 (2) ZLR 323 & 327 EBRAHIM JA…, stated as follows in relation to murder with constructive intention:

“The point, in essence, is that there must be more negligence and more than gross negligence to constitute that form of recklessness which amounts to constructive intent or dolus eventualis. There must be, in the mind of the accused person, what has been called 'a volitional component'. In other words, he must, in effect, say to himself 'I know I may kill this person if I shoot but I am going to shoot anyway'.”

Section 11 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] deals with causation as follows:

“(1) A person shall not be held criminally liable for a consequence unless the person's conduct caused or substantially contributed to its occurrence.

(2) A person's conduct shall be deemed to have caused or substantially contributed to a consequence for the purposes of subsection (1) if the conduct -

(a) Is the factual cause of the consequence, that is, but for the conduct the consequence would not have occurred; and

(b) Is the legal cause of the consequence, that is, the consequence -

(i) Was a reasonably foreseeable consequence of his or her conduct; or

(ii) Was brought about by a new cause supervening after his or her conduct, which cause was itself a reasonably foreseeable consequence of his or her conduct.”

The totality of the evidence was such that the death was a direct result of the actions of the appellant and his co-accused.

They admitted robbing him of his vehicle and driving him to an area infested with wild animals.

However, it may be that a higher court may find that the applicant and his co-accused ought to have been found guilty of murder with constructive intent.

This is moreso given the fact that their actions may be those of persons who knew that the deceased may meet death in the park but they still went ahead and left him there.

In the closing submissions by the respondent at the trial…, it made the following submission:

“Although proof of murder with actual intent is not clearly proved by the evidence; by leaving the person at night, in the dark, in a game park with wild animals that can easily roam about during night time, the accused realised the real risk or possibility of death resulting from their conduct and may therefore convicted (sic) of murder with constructive intent under the circumstances as their actions can easily be said to have caused or substantially contributed to the death of the now deceased as contemplated by section 11 of the Criminal Law Code.”

In other words, the respondent supported a verdict of murder with constructive intent.

As for sentence, the major contention by the appellant is that the court paid lip service to the fact that the appellant is a youthful first offender, and, as a result, the sentence is so severe that it induces a sense of shock.

In S v Anderson 1964 (3) SA 494 (AD); and S v De Jager & Anor 1965 (2) SA 616 (AD)…, HOLMES JA said:

“It would not appear to be sufficiently realized that a court of appeal does not have a general discretion to ameliorate the sentences of trial courts. The matter is governed by principle.

It is the trial court which has the discretion, and a court of appeal cannot interfere unless the discretion was not judicially exercised; that is to say, unless the sentence is vitiated by irregularity or misdirection or is so severe that no reasonable court could have imposed it. In this latter regard, an accepted test is whether the sentence induces a sense of shock; that is to say, if there is a striking disparity between the sentence passed and that which the court of appeal would have imposed.

It should therefore be recognized that appellate jurisdiction to interfere with punishment is not discretionary but, on the contrary, is very limited.”

The accused was convicted of murder with actual intent, but, if a higher court finds that he ought to have been found guilty of murder with constructive intent, this may affect the sentence.

In any event, applications for leave to appeal against sentence should be treated less rigidly than those against conviction due to the fact that sentence is always discretionary.

Accordingly, it is ordered as follows:

1. The application for condonation for late noting of an application for leave to appeal to the Supreme Court against sentence and conviction be and is hereby granted.

2. The applicant shall file his application for leave to appeal to the Supreme Court within ten days from the date of service of this order on him.

3. The Registrar of the High Court, Harare is directed to ensure that the applicant is served with this order and confirms receipt and such proof shall be filed and become part of the record.

Jurisdiction re: Approach, Assumption of Jurisdiction, Functus Officio and Judicial Deference


The applicant was, on the 29th of September 2013, convicted by this court of murder in terms of section 47(1)(a) of the Criminal Law [Codification and Reform] Act [Chapter 9:23]. He was sentenced to 25 years imprisonment.

On 6 June 2018, he filed an application for condonation for late noting of leave to appeal against both conviction and sentence.

In his explanation for the delay, three factors have been proffered by the applicant;

(a) That, he lost contact with the legal practitioner who represented him at the trial.

(b) That, he faced difficulties in accessing the record of proceedings even when he had engaged legal practitioners. The initial record supplied was not a complete one; and

(c) He faced financial constraints.

The applicant averred, that, he has good grounds of appeal against conviction in that the magistrate who confirmed his warned and cautioned statement erred in accepting that it be re-drafted.

He alleged that he challenged the initial confirmation of his warned and cautioned statement since he had been tortured by the police. He alleged that the indications made at the scene of the crime were stage-managed.

Further, that, apart from the warned and cautioned statement, there is no other evidence that links him to the offence.

The evidence, in his view, points to a verdict of murder with constructive intent in view of the circumstantial evidence.

With regard to sentence, the applicant averred, that, although he accepts that the court has discretion; in his case, the court failed to place due weight on the fact that he was a youthful offender who was aged 20 at the time of the commission of the offence. He thus deserved mercy and leniency as he could be rehabilitated.

The above largely forms part of his draft Notice of Appeal.

The respondent is not opposed to the relief sought and proffered three reasons as follows;

(a) The court based its ruling on circumstantial evidence since no body was found, and, another court may draw different inferences.

(b) It can be argued that the appellant can be found guilty of a lesser charge of culpable homicide since him and his co-accused left the deceased alive in an area that has wild animals and they ought to have reasonably forseen the possibility of him being devoured by wild animals.

(c) The applicant faced difficulties in procuring the record and he could also not raise legal fees for the appeal to be filed.

Section 44 of the High Court Act [Chapter 7:06] deals with appeals from the High Court to the Supreme Court as follows:

“(2) A person convicted on a criminal trial held by the High Court —

(a) May appeal to the Supreme Court against his conviction on any ground of appeal which involves a question of law alone;

(b) May, with the leave of a judge of the High Court, or, if a judge of the High Court refuses to grant leave, with the leave of a judge of the Supreme Court, appeal to the Supreme Court against his conviction on any ground of appeal which involves a question of fact alone or a question of mixed law and fact:

Provided that a person who appeals to the Supreme Court on a ground of appeal which involves a question of law alone may, without applying to a judge of the High Court, be granted leave to appeal by the Supreme Court should it appear to the Supreme Court, on the hearing of the appeal, that the ground of his appeal involves a question of mixed law and fact;

(e) May, where the sentence to which he was liable on conviction was not a sentence fixed by law, and where sentence of death was not passed upon him, with the leave of a judge of the High Court, or, if a judge of that court refuses to grant leave, with the leave of a judge of the Supreme Court, appeal to the Supreme Court against his sentence or order of forfeiture or other order following on conviction.”

This court, on numerous occasions, has exercised its mind on facts to consider when dealing with applications of this nature.

The 2013 Constitution has added a further dimension by making the right to appeal against conviction and sentence part of the declaration of rights: section 70(5) of the Constitution states, that, any person who has been tried for and convicted of an offence has the right, subject to reasonable restriction that may be prescribed by law, to appeal to a higher court against the conviction and sentence.

Apart from section 44 of the High Court Act, the other restrictions imposed by law are found in the High Court Rules, Orders 262-268.

In terms of Rule 267 “no application in terms of Rule 266 (application for condonation for failure to apply timeously) may be made after the expiry of twenty-four days from the date on which the sentence was passed, unless the judge orders otherwise.”

The current application has been made out of the time limits set, but, nonetheless, I have allowed the application to be made.

In applications of this nature, the South African approach has been set out in S v DiBlasi 1996 (1) SACR (1)…, as follows:

“The general approach of this court to applications of this kind is well established: see e.g. Federated Employers Fire & General Insurance Co. Ltd Anor v McKenzie 1969 (3) SA 360 (A) at 362 F-H; S v Adonis 1982 (4) SA 901 (A) at 908 H-909A; and Ferreira v Ntshingila 1990 (4) SA 271 (A) at 281 D-F.

Relevant considerations include the degree of non-compliance; the explanation therefor; the prospects of success; the importance of the case; the respondent's interests in the finality of the judgment; the convenience of the court; and the avoidance of unnecessary delays in the administration of justice.”

In De Kuszaba-Dabrowski et Uxor v Steel, N.O. 1966 RLR 60, BEADLE CJ set out the broad principles to be taken into account in considering an application for condonation of the late noting of an appeal. Some of these are –

(a) The extent of the delay;

(b) The reasonableness of the explanation for the delay;

(c) Whether the litigant himself is responsible for the delay;

(d) The prospects of success on appeal should the application be granted; and

(e) The possible prejudice to the respondent should the application be granted.

In Vigour Busilizwe Fuyana v Ntombaza Moyo SC54-06, the late CHIDYAUSIKU CJ…, stated the basic requirements as follows:

(a) A reasonable explanation for the failure to note the appeal within the prescribed period.

(b) Some prospects of success on the merits; and

(c) The bona fides of the application.

The applicant has, in my view, advanced plausible reasons for his failure to file an application for leave to appeal to the Supreme Court within the stipulated time frame.

The most critical factor rests on the prospects of success on appeal.

I am mindful of the fact, that, although a judge dealing with such application is not sitting as the Appellate Court per se, but, nonetheless, s/he is required to assess the prospects of success on appeal and not the success of the appeal.

The proposed Notice of Appeal becomes very relevant in such considerations.

The proposed grounds of appeal, in relation to the conviction, are based on three factors, namely;

(i) The warned and cautioned statements admissibility;

(ii) Circumstantial evidence; and

(iii) Intention to kill.

On the warned and cautioned statements, it is pertinent to note, that, the magistrate to whom the appellant and his co-accused were brought for confirmation of the warned and cautioned statement refused to confirm the statements of both after they indicated that they were severely assaulted by the police, and, this, in the court's view, was a layer of protection afforded to the accused persons.

The magistrate then directed that fresh statements be recorded - and this was done.

The fresh statements were produced by consent after withdrawal of the objection.

More poignantly, the court took into account other evidence in relation to the statements, more specifically, that “the impression given by the statement is that the deceased went down on his own volition. Whilst that may vary with the accused's version in court that he walked back to the boom gate, but the most important aspect of the statements is that he was alive. It is therefore inconceivable that the accused would have been threatened to admit denying the charge and admit having left the deceased alive and kicking.”…,.

The court also dealt extensively with the issue of circumstantial evidence.

It concluded that the deceased was left by the appellant and his co-accused in Marongoro Game Park which they knew was infested with wild animals. Clothes belonging to the deceased were found and the only conclusion that could be drawn from the facts is that he had died.

The court admitted that it relied on circumstantial evidence.

The court placed reliance on the reported decision in S v Shoniwa 1987 (1) ZLR 215 (S) in which the late DUMBUTSHENA CJ…, stated as follows…,:

“The law is that, on a criminal charge, the fact that a person was murdered can, like any other fact, be provided by actual evidence or circumstantial evidence if that evidence leads to that conclusion of fact, although no body or corpse was found.

The court must, as in any other criminal case, be satisfied, beyond reasonable doubt, of the guilt of the accused person.

In order to convict a person where no body has been found, there need be no confession establishing the guilt of the accused. There must be, however, sufficient evidence to establish the corpus delicti. That evidence can be wholly circumstantial provided it is sufficient to preclude every reasonable inference of the accused.”

The totality of the evidence led could only lead to the reasonable inference that the appellant and his co-accused left the deceased to die.

The essential elements of murder are set out in section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] as follows:

“(1) Any person who causes the death of another person -

(a) Intending to kill the other person; or

(b) Realizing that there is a real risk or possibility that his or her conduct may cause death; and
continues to engage in that conduct despite the risk or possibility, shall be guilty of murder.”

Section 47(1)(a) of the Criminal Law (Codification and Reform) Act relates to murder with actual intent and section 47(1)(b) of the Criminal Law (Codification and Reform) Act - murder with constructive intent.

The view by the respondent, at the trial, was that, the evidence did not prove murder with actual intent but with constructive intent.

Nonetheless, the applicant and his co-accused were found guilty of murder with actual intent.

The court considered that they abandoned the deceased in a place where he had no chances of survival; in a place where there were wild animals; and they did so in order to conceal their identify as the persons who had robbed the deceased.

In S v Gumbi 1994 (2) ZLR 323 & 327 EBRAHIM JA…, stated as follows in relation to murder with constructive intention:

“The point, in essence, is that there must be more negligence and more than gross negligence to constitute that form of recklessness which amounts to constructive intent or dolus eventualis. There must be, in the mind of the accused person, what has been called 'a volitional component'. In other words, he must, in effect, say to himself 'I know I may kill this person if I shoot but I am going to shoot anyway'.”

Section 11 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] deals with causation as follows:

“(1) A person shall not be held criminally liable for a consequence unless the person's conduct caused or substantially contributed to its occurrence.

(2) A person's conduct shall be deemed to have caused or substantially contributed to a consequence for the purposes of subsection (1) if the conduct -

(a) Is the factual cause of the consequence, that is, but for the conduct the consequence would not have occurred; and

(b) Is the legal cause of the consequence, that is, the consequence -

(i) Was a reasonably foreseeable consequence of his or her conduct; or

(ii) Was brought about by a new cause supervening after his or her conduct, which cause was itself a reasonably foreseeable consequence of his or her conduct.”

The totality of the evidence was such that the death was a direct result of the actions of the appellant and his co-accused.

They admitted robbing him of his vehicle and driving him to an area infested with wild animals.

However, it may be that a higher court may find that the applicant and his co-accused ought to have been found guilty of murder with constructive intent.

This is moreso given the fact that their actions may be those of persons who knew that the deceased may meet death in the park but they still went ahead and left him there.

In the closing submissions by the respondent at the trial…, it made the following submission:

“Although proof of murder with actual intent is not clearly proved by the evidence; by leaving the person at night, in the dark, in a game park with wild animals that can easily roam about during night time, the accused realised the real risk or possibility of death resulting from their conduct and may therefore convicted (sic) of murder with constructive intent under the circumstances as their actions can easily be said to have caused or substantially contributed to the death of the now deceased as contemplated by section 11 of the Criminal Law Code.”

In other words, the respondent supported a verdict of murder with constructive intent.

As for sentence, the major contention by the appellant is that the court paid lip service to the fact that the appellant is a youthful first offender, and, as a result, the sentence is so severe that it induces a sense of shock.

In S v Anderson 1964 (3) SA 494 (AD); and S v De Jager & Anor 1965 (2) SA 616 (AD)…, HOLMES JA said:

“It would not appear to be sufficiently realized that a court of appeal does not have a general discretion to ameliorate the sentences of trial courts. The matter is governed by principle.

It is the trial court which has the discretion, and a court of appeal cannot interfere unless the discretion was not judicially exercised; that is to say, unless the sentence is vitiated by irregularity or misdirection or is so severe that no reasonable court could have imposed it. In this latter regard, an accepted test is whether the sentence induces a sense of shock; that is to say, if there is a striking disparity between the sentence passed and that which the court of appeal would have imposed.

It should therefore be recognized that appellate jurisdiction to interfere with punishment is not discretionary but, on the contrary, is very limited.”

The accused was convicted of murder with actual intent, but, if a higher court finds that he ought to have been found guilty of murder with constructive intent, this may affect the sentence.

In any event, applications for leave to appeal against sentence should be treated less rigidly than those against conviction due to the fact that sentence is always discretionary.

Accordingly, it is ordered as follows:

1. The application for condonation for late noting of an application for leave to appeal to the Supreme Court against sentence and conviction be and is hereby granted.

2. The applicant shall file his application for leave to appeal to the Supreme Court within ten days from the date of service of this order on him.

3. The Registrar of the High Court, Harare is directed to ensure that the applicant is served with this order and confirms receipt and such proof shall be filed and become part of the record.

Indictment or Charge re: Identity of Aggrieved, Complainant or Victim, Corpus Delicti and the Presumption of Death


The applicant was, on the 29th of September 2013, convicted by this court of murder in terms of section 47(1)(a) of the Criminal Law [Codification and Reform] Act [Chapter 9:23]. He was sentenced to 25 years imprisonment.

On 6 June 2018, he filed an application for condonation for late noting of leave to appeal against both conviction and sentence.

In his explanation for the delay, three factors have been proffered by the applicant;

(a) That, he lost contact with the legal practitioner who represented him at the trial.

(b) That, he faced difficulties in accessing the record of proceedings even when he had engaged legal practitioners. The initial record supplied was not a complete one; and

(c) He faced financial constraints.

The applicant averred, that, he has good grounds of appeal against conviction in that the magistrate who confirmed his warned and cautioned statement erred in accepting that it be re-drafted.

He alleged that he challenged the initial confirmation of his warned and cautioned statement since he had been tortured by the police. He alleged that the indications made at the scene of the crime were stage-managed.

Further, that, apart from the warned and cautioned statement, there is no other evidence that links him to the offence.

The evidence, in his view, points to a verdict of murder with constructive intent in view of the circumstantial evidence.

With regard to sentence, the applicant averred, that, although he accepts that the court has discretion; in his case, the court failed to place due weight on the fact that he was a youthful offender who was aged 20 at the time of the commission of the offence. He thus deserved mercy and leniency as he could be rehabilitated.

The above largely forms part of his draft Notice of Appeal.

The respondent is not opposed to the relief sought and proffered three reasons as follows;

(a) The court based its ruling on circumstantial evidence since no body was found, and, another court may draw different inferences....,.

The proposed grounds of appeal, in relation to the conviction, are based on three factors, namely;

(i)...,.

(ii) Circumstantial evidence;...,. 

The court dealt extensively with the issue of circumstantial evidence.

It concluded that the deceased was left by the appellant and his co-accused in Marongoro Game Park which they knew was infested with wild animals. Clothes belonging to the deceased were found and the only conclusion that could be drawn from the facts is that he had died.

The court admitted that it relied on circumstantial evidence.

The court placed reliance on the reported decision in S v Shoniwa 1987 (1) ZLR 215 (S) in which the late DUMBUTSHENA CJ…, stated as follows…,:

“The law is that, on a criminal charge, the fact that a person was murdered can, like any other fact, be provided by actual evidence or circumstantial evidence if that evidence leads to that conclusion of fact, although no body or corpse was found.

The court must, as in any other criminal case, be satisfied, beyond reasonable doubt, of the guilt of the accused person.

In order to convict a person where no body has been found, there need be no confession establishing the guilt of the accused. There must be, however, sufficient evidence to establish the corpus delicti. That evidence can be wholly circumstantial provided it is sufficient to preclude every reasonable inference of the accused.”

The totality of the evidence led could only lead to the reasonable inference that the appellant and his co-accused left the deceased to die.

Murder re: Infliction of Harm on an Un-identified Victim, the Principle of Corpus Delicti and Presumption of Death


The applicant was, on the 29th of September 2013, convicted by this court of murder in terms of section 47(1)(a) of the Criminal Law [Codification and Reform] Act [Chapter 9:23]. He was sentenced to 25 years imprisonment.

On 6 June 2018, he filed an application for condonation for late noting of leave to appeal against both conviction and sentence.

In his explanation for the delay, three factors have been proffered by the applicant;

(a) That, he lost contact with the legal practitioner who represented him at the trial.

(b) That, he faced difficulties in accessing the record of proceedings even when he had engaged legal practitioners. The initial record supplied was not a complete one; and

(c) He faced financial constraints.

The applicant averred, that, he has good grounds of appeal against conviction in that the magistrate who confirmed his warned and cautioned statement erred in accepting that it be re-drafted.

He alleged that he challenged the initial confirmation of his warned and cautioned statement since he had been tortured by the police. He alleged that the indications made at the scene of the crime were stage-managed.

Further, that, apart from the warned and cautioned statement, there is no other evidence that links him to the offence.

The evidence, in his view, points to a verdict of murder with constructive intent in view of the circumstantial evidence.

With regard to sentence, the applicant averred, that, although he accepts that the court has discretion; in his case, the court failed to place due weight on the fact that he was a youthful offender who was aged 20 at the time of the commission of the offence. He thus deserved mercy and leniency as he could be rehabilitated.

The above largely forms part of his draft Notice of Appeal.

The respondent is not opposed to the relief sought and proffered three reasons as follows;

(a) The court based its ruling on circumstantial evidence since no body was found, and, another court may draw different inferences....,.

The proposed grounds of appeal, in relation to the conviction, are based on three factors, namely;

(i)...,.

(ii) Circumstantial evidence;...,. 

The court dealt extensively with the issue of circumstantial evidence.

It concluded that the deceased was left by the appellant and his co-accused in Marongoro Game Park which they knew was infested with wild animals. Clothes belonging to the deceased were found and the only conclusion that could be drawn from the facts is that he had died.

The court admitted that it relied on circumstantial evidence.

The court placed reliance on the reported decision in S v Shoniwa 1987 (1) ZLR 215 (S) in which the late DUMBUTSHENA CJ…, stated as follows…,:

“The law is that, on a criminal charge, the fact that a person was murdered can, like any other fact, be provided by actual evidence or circumstantial evidence if that evidence leads to that conclusion of fact, although no body or corpse was found.

The court must, as in any other criminal case, be satisfied, beyond reasonable doubt, of the guilt of the accused person.

In order to convict a person where no body has been found, there need be no confession establishing the guilt of the accused. There must be, however, sufficient evidence to establish the corpus delicti. That evidence can be wholly circumstantial provided it is sufficient to preclude every reasonable inference of the accused.”

The totality of the evidence led could only lead to the reasonable inference that the appellant and his co-accused left the deceased to die.

Appeal and Leave to Appeal re: Litigants in Person or Self-Actors


Section 44 of the High Court Act [Chapter 7:06] deals with appeals from the High Court to the Supreme Court as follows:

“(2) A person convicted on a criminal trial held by the High Court —

(a) May appeal to the Supreme Court against his conviction on any ground of appeal which involves a question of law alone;

(b) May, with the leave of a judge of the High Court, or, if a judge of the High Court refuses to grant leave, with the leave of a judge of the Supreme Court, appeal to the Supreme Court against his conviction on any ground of appeal which involves a question of fact alone or a question of mixed law and fact:

Provided that a person who appeals to the Supreme Court on a ground of appeal which involves a question of law alone may, without applying to a judge of the High Court, be granted leave to appeal by the Supreme Court should it appear to the Supreme Court, on the hearing of the appeal, that the ground of his appeal involves a question of mixed law and fact;

(e) May, where the sentence to which he was liable on conviction was not a sentence fixed by law, and where sentence of death was not passed upon him, with the leave of a judge of the High Court, or, if a judge of that court refuses to grant leave, with the leave of a judge of the Supreme Court, appeal to the Supreme Court against his sentence or order of forfeiture or other order following on conviction.”...,.

The 2013 Constitution has added a further dimension by making the right to appeal against conviction and sentence part of the declaration of rights: section 70(5) of the Constitution states, that, any person who has been tried for and convicted of an offence has the right, subject to reasonable restriction that may be prescribed by law, to appeal to a higher court against the conviction and sentence.

Apart from section 44 of the High Court Act, the other restrictions imposed by law are found in the High Court Rules, Orders 262-268.

In terms of Rule 267 “no application in terms of Rule 266 (application for condonation for failure to apply timeously) may be made after the expiry of twenty-four days from the date on which the sentence was passed, unless the judge orders otherwise.”...,.

In S v Anderson 1964 (3) SA 494 (AD); and S v De Jager & Anor 1965 (2) SA 616 (AD)…, HOLMES JA said:

“It would not appear to be sufficiently realized that a court of appeal does not have a general discretion to ameliorate the sentences of trial courts. The matter is governed by principle.

It is the trial court which has the discretion, and a court of appeal cannot interfere unless the discretion was not judicially exercised; that is to say, unless the sentence is vitiated by irregularity or misdirection or is so severe that no reasonable court could have imposed it. In this latter regard, an accepted test is whether the sentence induces a sense of shock; that is to say, if there is a striking disparity between the sentence passed and that which the court of appeal would have imposed.

It should therefore be recognized that appellate jurisdiction to interfere with punishment is not discretionary but, on the contrary, is very limited.”...,.

Applications for leave to appeal against sentence should be treated less rigidly than those against conviction due to the fact that sentence is always discretionary.

Chamber Application - Application for condonation for late noting of leave to appeal

CHIRAWU-MUGOMBA J: The applicant was on the on the 29th of September 2013 convicted by this court of murder in terms of section 47(1)(a) of the Criminal Law [Codification and Reform] Act [Chapter 9:23]. He was sentenced to 25 years imprisonment.

On 6th of June 2018, he filed an application for condonation for late noting of leave to appeal against both conviction and sentence.

In his explanation for the delay, three factors have been proffered by the applicant;

(a) That he lost contact with the legal practitioner who represented him at the trial.

(b) That he faced difficulties in accessing the record of proceedings even when he had engaged legal practitioners. The initial record supplied was not a complete one and;

(c) He faced financial constraints.

Applicant averred that he has good grounds of appeal against conviction in that the Magistrate who confirmed his warned and cautioned statement erred in accepting that it be redrafted.

He alleged that he challenged the initial confirmation of his warned and cautioned statement since he had been tortured by the police. He alleged that the indications made at the scene of the crime were stage managed.

Further, that apart from the warned and cautioned statement, there is no other evidence that links him to the offence.

The evidence in his view points to a verdict of murder with constructive intent in view of the circumstantial evidence.

With regard to sentence, the applicant averred that although he accepts that the court has discretion, in his case the court failed to place due weight on the fact that he was a youthful offender who was aged 20 at the time of the commission of the offence. He thus deserved mercy and leniency as he could be rehabilitated.

The above largely form part of his draft notice of appeal.

The respondent is not opposed to the relief sought and proffered three reasons as follows;

(a) The court based its ruling on circumstantial evidence since no body was found and another court may draw different inferences.

(b) It can be argued that the appellant can be found guilty of a lesser charge of culpable homicide since him and his co-accused left the deceased alive in an area that has wild animals and they ought to have reasonably forseen the possibility of him being devoured by wild animals.

(c) Applicant faced difficulties in procuring the record and he could also not raise legal fees for the appeal to be filed.

Section 44 of the High Court Act [Chapter 7:06] deals with appeals from the High Court to the Supreme Court as follows:

“(2) A person convicted on a criminal trial held by the High Court —

(a) may appeal to the Supreme Court against his conviction on any ground of appeal which involves a question of law alone;

(b) may, with the leave of a judge of the High Court or, if a judge of the High Court refuses to grant leave, with the leave of a judge of the Supreme Court, appeal to the Supreme Court against his conviction on any ground of appeal which involves a question of fact alone or a

question of mixed law and fact: Provided that a person who appeals to the Supreme Court on a ground of appeal which involves a question of law alone may, without applying to a judge of the High Court, be granted leave to appeal by the Supreme Court should it appear to the Supreme Court on the hearing of the appeal that the ground of his appeal involves a question of mixed law and fact;

(e) may, where the sentence to which he was liable on conviction was not a sentence fixed by law, and where sentence of death was not passed upon him, with the leave of a judge of the High Court, or, if a judge of that court refuses to grant leave, with the leave of a judge of the Supreme Court, appeal to the Supreme Court against his sentence or order of forfeiture or other order following on conviction.”

This court on numerous occasions has exercised its mind on facts to consider when dealing with applications of this nature.

The 2013 Constitution has added a further dimension by making the right to appeal against conviction and sentence part of the declaration of rights.1

Apart from section 44 above, the other restrictions imposed by law are found in the High Court Rules, Orders 262-268.

In terms of rule 267, “no application in terms of rule 266 (application for condonation for failure to apply timeously) may be made after the expiry of twenty-four days from the date on which the sentence was passed, unless the judge orders otherwise”.

The current application has been made out of the time limits set but nonetheless, I have allowed the application to be made.

In applications of this nature, the South African approach has been set out in S v DiBlasi 2 as follows:

“The general approach of this court to applications of this kind is well established. (see e.g. Federated Employers Fire & General Insurance Co. Ltd Anor v McKenzie 1969 (3) SA 360 (A) at 362 F-H; S v Adonis 1982 (4) SA 901 (A) at 908 H-909A; and Ferreira v Ntshingila 1990 (4) SA 271 (A) at 281 D-F.

Relevant considerations include the degree of non-compliance, the explanation therefor, the prospects of success, the importance of the case, the respondent's interests in the finality of the judgment, the convenience of the court and the avoidance of unnecessary delays in the administration of justice.”

In De Kuszaba-Dabrowski et Uxor v Steel, N.O. 1966 RLR 60, BEADLE CJ set out the broad principles to be taken into account in considering an application for condonation of the late noting of an appeal. Some of these are –

(a) the extent of the delay;

(b) the reasonableness of the explanation for the delay;

(c) whether the litigant himself is responsible for the delay;

(d) the prospects of success on appeal should the application be granted; and

(e) the possible prejudice to the respondent should the application be granted.

In Vigour Busilizwe Fuyana v Ntombaza Moyo3, the late CHIDYAUSIKU (CJ) as he then was stated the basic requirements as follows:

(a) a reasonable explanation for the failure to note the appeal within the prescribed period.

(b) some prospects of success on the merits; and

(c) the bona fides of the application.

The applicant has in my view advanced plausible reasons for his failure to file an application for leave to appeal to the Supreme Court within the stipulated time frame.

The most critical factor rests on the prospects of success on appeal.

I am mindful of the fact that although a judge dealing with such application is not sitting as the appellate court per se but nonetheless, s/he is required to assess the prospects of success on appeal and not the success of the appeal.

The proposed notice of appeal becomes very relevant in such considerations.

The proposed grounds of appeal in relation to the conviction are based on three factors namely;

(i) the warned and cautioned statements admissibility;

(ii) circumstantial evidence; and

(iii) intention to kill.

On the warned and cautioned statements, it is pertinent to note that the Magistrate to whom the appellant and his co-accused were brought for confirmation of the warned and cautioned statement refused to confirm the statements of both after they indicated that they were severely assaulted by the police and this in the court's view was a layer of protection afforded to the accused persons.

The Magistrate then directed that fresh statements be recorded and this was done.

The fresh statements were produced by consent after withdrawal of the objection.

More poignantly, the court took into account other evidence in relation to the statements more specifically that, “The impression given by the statement is that the deceased went down on his own volition. Whilst that may vary with the accused's version in court that he walked back to the boom gate, but the most important aspect of the statements is that he was alive. It is therefore inconceivable that the accused would have been threated to admit denying the charge and admit having left the deceased alive and kicking.”4

The court also dealt extensively with the issue of circumstantial evidence.

It concluded that the deceased was left by the appellant and his co-accused in Marongoro game-park which they knew was infested with wild animals. Clothes belonging to the deceased were found and the only conclusion that could be drawn from the facts is that he had died.

The court admitted that it relied on circumstantial evidence.

The court placed reliance on the reported decision in S v Shoniwa5 in which the late DUMBUTSHENA CJ (as he then was) stated as follows at page 218 E-G:

“The law is that on a criminal charge the fact that a person was murdered can, like any other fact, be provided by actual evidence or circumstantial evidence if that evidence leads to that conclusion of fact, although no body or corpse was found. The court must, as in any other criminal case, be satisfied beyond reasonable doubt of the guilt of the accused person. In order to convict a person where nobody has been found, there need be no confession establishing the guilt of the accused. There must be however, sufficient evidence to establish the corpus delicti. That evidence can be wholly circumstantial provided it is sufficient to preclude every reasonable inference of the accused.”

The totality of the evidence led could only lead to the reasonable inference that the appellant and his co-accused left the deceased to die.

The essential elements of murder are set out in section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] as follows:

“(1) Any person who causes the death of another person -

(a) intending to kill the other person; or

(b) realising that there is a real risk or possibility that his or her conduct may cause death; and

continues to engage in that conduct despite the risk or possibility; shall be guilty of murder.”

Section 47(1)(a) relates to murder with actual intent and 47(1)(b) murder with constructive intent.

The view by the respondent at the trial was that the evidence did not prove murder with actual intent but with constructive intent.

Nonetheless, the applicant and his co-accused were found guilty of murder with actual intent. The court considered that they abandoned the deceased in a place where he had no chances of survival in a place where there were wild animals and they did so in order to conceal their identify as the persons who had robbed the deceased.

In S v Gumbi 1994 (2) ZLR 323 & 327 EBRAHIM JA (as he then was) stated as follows in relation to murder with constructive intention:

“The point in essence is that there must be more negligence and more than gross negligence to constitute that form of recklessness which amounts to constructive intent or dolus eventualis. There must be in the mind of the accused person what has been called 'a volitional component'. In other words he must, in effect, say to himself, 'I know I may kill this person if I shoot but I am going to shot anyway'.”

Section 11 of the act deals with causation as follows:

“(1) A person shall not be held criminally liable for a consequence unless the person's conduct caused or substantially contributed to its occurrence.

(2) A person's conduct shall be deemed to have caused or substantially contributed to a consequence for the purposes of subsection (1) if the conduct -

(a) is the factual cause of the consequence, that is, but for the conduct the consequence would not have occurred; and

(b) is the legal cause of the consequence, that is, the consequence -

(i) was a reasonably foreseeable consequence of his or her conduct; or

(ii) was brought about by a new cause supervening after his or her conduct, which cause was itself a reasonably foreseeable consequence of his or her conduct.”

The totality of the evidence was such that the death was a direct result of the actions of the appellant and his co-accused.

They admitted robbing him of his vehicle and driving him to an area infested with wild animals.

However, it may be that a higher court may find that the applicant and his co-accused ought to have been found guilty of murder with constructive intent.

This is more so given the fact that their actions may be those of persons who knew that the deceased may meet death in the park but they still went ahead and left him there.

In the closing submissions by the respondent at the trial (page 56) it made the following submission:

“Although proof of murder with actual intent is not clearly proved by the evidence, by leaving the person at night in the dark in a game park with wild animals that can easily roam about during night time, the accused realised the real risk or possibility of death resulting from their conduct and may therefore convicted (sic) of murder with constructive intent under the circumstances as their actions can easily be said to have caused or substantially contributed to the death of the now deceased as contemplated by S11 of the Criminal Law Code”.

In other words, the respondent supported a verdict of murder with constructive intent.

As for sentence, the major contention by the appellant is that the court paid lip service to the fact that the appellant is a youthful first offender and as a result, the sentence is so severe that it induces a sense of shock.

In S v Anderson 1964 (3) SA 494 (AD); and S v De Jager & Anor 1965 (2) SA 616 (AD) at 628 and 629 where HOLMES JA said:

“It would not appear to be sufficiently realized that a court of appeal does not have a general discretion to ameliorate the sentences of trial courts. The matter is governed by principle. It is the trial court which has the discretion, and a court of appeal cannot interfere unless the discretion was not judicially exercised, that is to say unless the sentence is vitiated by irregularity or misdirection or is so severe that no reasonable court could have imposed it. In this latter regard an accepted test is whether the sentence induces a sense of shock that is to say if there is a striking disparity between the sentence passed and that which the court of appeal would have imposed. It should therefore be recognized that appellate jurisdiction to interfere with punishment is not discretionary but, on the contrary, is very limited.”

The accused was convicted of murder with actual intent but if a higher court finds that he ought to have been found guilty of murder with constructive intent, this may affect the sentence.

In any event, applications for leave to appeal against sentence should be treated less rigidly than those against conviction due to the fact that sentence is always discretionary.

Accordingly, it is ordered as follows:

1. The application for condonation for late noting of an application for leave to appeal to the Supreme Court against sentence and conviction be and is hereby granted.

2. The applicant shall file his application for leave to appeal to the Supreme Court within ten days from the date of service of this order on him.

3. The Registrar of the High Court Harare is directed to ensure that the applicant is served with this order and confirms receipt and such proof shall be filed and become part of the record.




National Prosecuting Authority, Respondent's Legal Practitioners

1. Section 70(5) states that any person who has been tried for and convicted of an offence has the right, subject to reasonable restriction that may be prescribed by law to appeal to a higher court against the conviction and sentence

2. 1996 (1) SACR (1) 3f-g

3. SC54/06

4. At page 15 of the cyclostyled judgement (page 42 of the record)

5. 1987 (1) ZLR 215 (S)

1 Section 70(5) states that any person who has been tried for and convicted of an offence has the right, subject to reasonable restriction that may be prescribed by law to appeal to a higher court against the conviction and sentence

2 1996 (1) SACR (1) 3f-g

3 SC54/06

4 At page 15 of the cyclostyled judgement (page 42 of the record)

5 1987 (1) ZLR 215 (S)

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