The appellant appeared before a Mvurwi magistrate facing a theft of trust property charge in terms of section 113 of the Criminal Law (Codification and Reform Act) [Chapter 9:23]. The State allegations were that the appellant received US$2,440= from his employer for purposes of paying wages for contract workers at Tel One Mvurwi Depot. Instead of handing over the money to the intended beneficiaries, the appellant converted the money to his own use. The appellant was convicted and fined US$300= or 6 months imprisonment.

Aggrieved by the conviction, the appellant appeals against both conviction and sentence. His grounds of appeal are as follows:-

“AD CONVICTION

Appellant argues that the court a quo erred or misdirected itself in one or more of the following ways:-

1. Whether or not the court a quo heavily relied on unsafe evidence which did not point to the guilt of the appellant.

2. Whether or not the court a quo relied on flouting of workplace procedures by the appellant as evidence of theft, the charge alleged by the State.

AD SENTENCE

1. Whether the court a quo imposed a disproportionate and stiffer penalty without regard to the accused's personal circumstances, mitigation and contrition.”

The respondent's counsel raised a point in limine which he requested the court to deal with before proceeding to deal with the merits of the matter. He submitted that the notice and grounds of appeal raised in respect of conviction fall short of the requirements of Rule 22(1) of the Supreme Court (Magistrates Courts) (Criminal Appeals) Rules,1979, (hereinafter referred to as 'the Rules').

He submitted, further, that the appellant's grounds of appeal are vague and too generalised. That the rules require a notice of appeal to be clear and specific and to indicate whether the misdirection alleged is one of fact or law. He urged the court to dismiss the appeal as it is not properly before the court, is a nullity, and, on the basis, that there is no appeal before the court.

The appellant's counsel, in his response, submitted that there was no need to give further details because the notice of appeal states clearly what the grounds of appeal are. He maintained that the grounds of appeal state what was not canvassed by the trial court and that the substance of the appellant's appeal was that the State had failed to prove its case beyond a reasonable doubt. He contended that the State has not suffered any prejudice as the grounds are amplified by the appellant's heads of argument.

The court directed the parties to proceed and argue the matter on the merits and indicated that its ruling will be encompassed in the main judgment.

Rule 22(1) of the Supreme Court (Magistrates Courts) (Criminal Appeals) Rules provides that a notice of appeal should set out “clearly and specifically the grounds of the appeal”. Failure to comply renders the notice a nullity. In terms of Rule 47, if the notice is a nullity and the time for noting an appeal has lapsed, the right to appeal must be deemed to have lapsed.

Our Criminal Courts, in practice, do not strictly scrutinise grounds of appeal for compliance with the requirements of Rule 22(1). The Attorney General's Office has, in the past, not paid particular attention to the format of grounds of appeal and most grounds of appeal, though not complying with the rules, have gone unchallenged resulting in litigants not adhering strictly to the rule. There is need to comply with the rules of court. There are a number of cases which have emphasized the need to comply with this rule as well as set out the requirements of the rule.

In Killian v Geregskade Uitenhage 1980 (1) SA 808, the court set out the requirements of a notice of appeal and held that;

“A notice of appeal requires that the points upon which an appellant relies on be set out in precise detail so that the respondent can know the points upon which a decision is required. The magistrate must be properly informed of the grounds upon which the appeal is based.”

Grounds of appeal should be clearly stated and should not be in general form. As enunciated in R v Jack 1990 (2) ZLR 166, a notice without meaningful grounds of appeal is not a notice of appeal, and, if the time within which to note an appeal has lapsed, it cannot later be amended and the right to appeal falls away.

The first ground avers that the trial magistrate relied on unsafe evidence to convict. If the ground is meant to challenge the magistrate's findings of fact, it is not specifically so stated. In R vEmmerson 1958 (1) SA 442…, BEADLE J said the following approach was emphasised;

“…, if the ground of appeal is that the magistrate erred in law this should be stated, and the particular mistake of law which the magistrate is alleged to have made should be set out. If, however, the ground of appeal is that the magistrate erred on the facts this should be stated, and the appellant should go further and state whether the magistrate erred in accepting the evidence led or in regarding that evidence as sufficient to prove the offence.”

A ground that the court a quo misdirected itself in that it heavily relied on unsafe evidence which did not point to the guilt of the appellant is too general. It lacks precise detail of the points the appellant seeks to rely on. It is vague as it does not state whether the magistrate erred in law or fact.

The first ground seems to attack the magistrate's findings of fact. The appellant is not clear whether the magistrate erred in accepting the evidence led or in regarding the evidence as sufficient to prove the offence. That ground was not adequately canvassed.

The second ground raises the query whether or not the court relied on flouting of work place procedures to prove the offence of theft. The appellant's style is quite interesting. Instead of stating his ground of appeal, he poses a general question. Furthermore, that question is vague and does not state whether the challenge is of law or fact. Both grounds of appeal are superficial and empty and do not comply with the rules.

The procedure governing filing of notices of appeal is a procedure separate from that for heads of arguments. The two processes serve two different purposes and the processes are filed at different stages. Grounds of appeal are required at the initial stages of the appeal to inform stakeholders of the appeal. Heads of argument, on the other hand, serve a completely different purpose of identifying the heads of argument in opposition to/or in support of the appeal. It is inappropriate to file grounds of appeal that are vague on the premise that these will be bolstered up by the appellant's heads of argument as that objective is not achievable. Filling of grounds and a notice of appeal is not a mere formality. The grounds should therefore be precise, clear and unambiguous at the stage at which they are filed. The appellant's argument that the defects in the notice of appeal are cured by the heads of argument does not, therefore, find favour with this court.

This court cannot over-emphasize the need for grounds of appeal to be always clear and precise. They should set out, in detail, the points upon which the appellant relies. They serve a purpose which is to advise the trial magistrate of the points challenged on appeal. The magistrate's views and comments, in turn, are meant to assist the Appeal Court on the points challenged. It is difficult for a trial magistrate who is expected to reply to an imprecise ground of appeal to make a meaningful response. The respondent should also be sufficiently informed of the requisite points the appellant wishes to take on appeal so that the respondent is capable of making a meaningful response. The Appeal Court, on the other hand, should be adequately advised on points over which its decision is required.

Looking at the contents of the grounds and the format in which they are in, this court is at a loss as to the basis of this appeal and the points over which its decision is required. It is undesirable to pose questions in a notice of appeal whose purpose it is to identify issues and clearly define them for purposes of the appeal.

A notice of appeal which does not comply with the rules of law, at law is a nullity. The present grounds of appeal are a nullity as they fall far short of the requirements of Rule 22.

The application succeeds.

HERBSTEIN & VAN WINSEN, Civil Practice of the Supreme Court of South Africa 4ed…, explain the distinction between an appeal and a review:

“The reason for bringing proceedings under review or appeal is usually the same; to have the judgment set aside. Where the reason for wanting this is that the court came to a wrong conclusion on the facts or the law, the appropriate procedure is by way of appeal. Where, however, the real grievance is against the method of the trial, it is proper to bring the case on review. The first distinction depends, therefore, on whether it is the result only or rather the method of trial which is to be attacked. Naturally, the method of trial will be attacked on review only when the result of the trial is regarded as unsatisfactory as well. The giving of a judgment not justified by the evidence would be a matter of appeal and not a review upon this test. The essential question in review proceedings is not the correctness of the decision under review but its validity.”

The Attorney-General gave notice in terms of section 35 of the High Court Act [Chapter 7:06] that he did not support the conviction of the four appellants in this matter.,. Counsel for the appellants recited several authorities for the proposition that such material discrepancies as existed on the record of proceedings constituted such a serious irregularity as to necessitate a quashing of the proceedings.

It is a correct observation that the record of proceedings does not make any sense.,.

In., the entire evidence and submissions in mitigation and aggravation was missing from the record. Confronted with such irregularity BLACKIE J stated:

"The evidence missing from the record is the entire evidence and submissions in mitigation and aggravation. The absence of such evidence and addresses means that there is, in principle, a material deficiency in the record, more especially so, as in this case, the accused is appealing against sentence.

'., all pleas of mitigation, where defending counsel outlines the facts to the court must form part of the record, and they must be transcribed by official shorthand writers and included in the record, should the record subsequently come on appeal.' The effect of a material deficiency in the record is that the proceedings must be set aside. The accused is seriously prejudiced through no fault of his own. He is just entitled to have his case considered on appeal or review and for that purpose he is entitled to a copy of the record certified as correct. If he does not receive that he is frustrated in his basic right of appeal or review.'"

In light of these shortcomings regarding the record of proceedings, I was satisfied that the concession by the Attorney General was proper. The present proceedings are incapable of rectification.,. The only course open to afford justice to the appellants is indicated in the authorities cited by counsel for both the State and defence. In the result, therefore, I quash the conviction in respect of all the appellants and set aside the sentences imposed upon such conviction.

This is an appeal against the decision of the Provincial Magistrate sitting at Harare delivered on 30 March 2012 in which he dismissed an application by the appellants for the suspension of their sentence of 12 months imprisonment or 420 hours of community service at institutions in Harare and Chinhoyi.

The appellants had approached the court a quo seeking that suspension pending an appeal which they noted to this court on 22 March 2012.

As stated, their application did not find favour with that court as a result of which they have approached this court as an Appeal Court.

Counsel for the State has raised two (2) points in limine, namely:

1. That the appeal noted by the appellant against conviction and sentence is defective by reason that the appellants did not deposit with the Clerk of Court the costs for the preparation of the appeal record and did not make a written undertaking to make payment of the costs of such preparation....,.

The first point in limine, relating to the costs of preparation of the appeal record, is based on the requirement that an appellant should pay the costs of transcription of the record or undertake to pay.

In his submissions, counsel for the State cited Rule 24(1) of the Supreme Court (Magistrates Court) (Criminal Appeal) Rules, 1979 which provides;

“The clerk of the court shall, on receipt of the payment or undertaking, as the case may be, referred to in sub rule (2) of Rule 22, give instructions for the preparation of the record.”

Subrule (2) of Rule 22 referred to therein provides:

“The appellant shall, at the time of the noting of an appeal in terms of sub-rule (1) or within such period thereof, not exceeding 5 days, as the clerk of the court may allow, deposit with the clerk of the court the cost, as estimated by the clerk of the court, of one certified copy of the record in the case concerned.”

Subrule (4) of Rule 22 renders the appeal invalid by reason of failure to comply with the foregoing provisions.

Counsel for the appellants produced a letter, dated 22 March 2012, the same day the appeal was noted, addressed to the Clerk of Court which undertakes to pay the cost of transcription. That letter was received by the Clerk of Court the same day.

Faced with that letter, counsel for the State was forced to abandon his first point in limine.

The first duty of a legal practitioner presenting a case on appeal is to assist the court to decide the case on the basis of the evidence led at the trial by correctly analysing the evidence and applying it to the law.

In determining the prospects of success on appeal, a court is required to take each ground of appeal and examine the judgment of the lower court to ascertain whether there is substance in the criticism. (See S v Musasa S-45-02).

The following are the grounds of appeal –

“1. The learned trial magistrate misdirected herself by failing to give consideration to the fact that the rape complaint was obtained by inducement and appellant's name was actually suggested to the little complainant as the assailant.

2. The trial magistrate erred by failing to be alive and to apply her mind to the fact that the rape complaint was not prompt and only arose after some probing.

3. The court a quo erred by failing to give consideration to the fact that there was bad blood between appellant and Drapper, which would have given rise to the surfacing of these false allegations.

4. The learned magistrate erred by failing to call the Investigating Officer who is alleged to have been present when the appellant's name was suggested as the culprit. She ought to have invoked the provisions of section 232(b) of the Criminal Procedure and Evidence Act [Chapter 9:07].

5. The court a quo erred by rejecting appellant's defence when in fact his story was reasonably possibly true, and, to that extent, the benefit of doubt should have been resolved in his favour.

We convicted the three applicants of murder on 12 June 2009. I sentenced the applicants to sixteen (16) years imprisonment. They noted an appeal against both conviction and sentence. They now seek leave to appeal to the Supreme Court.

It took long for the matter to be set down as the Attorney General's office was unable to formulate its position. This was so because the law officers who initially dealt with the matter are not in the service.

Counsel for the State required the record of proceedings to be transcribed in order to read it and thereafter formulate a position. The transcription of criminal records has almost ground to a halt on account of unavailability of human and other resources. The State did not consent to the application nonetheless.

Counsel for the applicants kept his own notes as he was involved throughout the trial.

The approach in such an application was clearly stated in our case law. It is trite that the decision whether or not to grant leave to appeal against the verdict depends on the prospects of success. The matter should be approached on the basis, not of how good the prospects must be before leave is granted, but of how poor they must be before it is refused. The applicant should, therefore, be required to make out a reasonably arguable case, in the sense of there being substance in the argument - S v Mutasa 1988 (2) ZLR 4 (S); S v Tengende 1981 ZLR 445 (S)…,.; S v Woods and Others SC60-93; and S v McGown 1995 (2) ZLR 81 (S)…,.

As regards the application for leave against sentence, such application should be treated less rigidly than the one for leave to appeal against conviction, because assessment of sentence is one of the more difficult tasks with which a judicial officer is faced – S v Woods and Others SC60-93; R v Rowesayi 1969 (1) RLR 140 (A)…,; and S v McGown 1995 (2) ZLR 81 (S)…,.

Coming back to the facts of this case, the State counsel, like in S v Tengende 1981 ZLR 445 (S), did not have sight of the record of proceedings. I made my hand-written notes available to him but he is unable to read my handwriting. It was difficult for counsel for the State to consider the prospects of success in the absence of the record. Counsel for the Sate, therefore, made no serious effort to oppose the application.

I do not suffer the same disadvantage as I read through my notes.

This has been a lengthy trial which commenced on 25 September 2007 and ended on 12 June 2009. The conviction of the applicants was based mainly on the evidence of quasi-accomplice, Siwusu Wilfred Tshabangu, and another witness, Saul Ngwenya. The court rejected the applicants version. These events involved a number of persons, that is the deceased, Siwusu Wilfred Tshabangu and the original four accomplices. The skirmish was fast and there is room for mistake - even by a credible witness. We addressed the issue in detail in our judgment, but there is a reasonable prospect that the Judges of Appeal may take a different view, both in relation to questions of fact and of law – R v Kuzwayo 1949 (3) SA 761 (A)…,.

In the circumstances, so far as the verdict is concerned leave to appeal has to be granted.

As alluded to above, so far as sentence is concerned, sentence is a matter of discretion and there is always room for difference of opinion. Such applications need not, therefore, be treated as rigidly as applications for leave to appeal against conviction.

Cause of death is brain damage and skull fracture. The doctor who carried out the post mortem observed;

(i) Bruised skull and multiple sutured long incision sites on both sides of the head externally.

Internally, he observed;

(i) 4x3cm hole on the left parietal area;

(ii) 2x3cm hole on the right parietal area;

(iii) 8cm right patrie-temporal linear fracture and huge left parietal brain haematoma; and

(iv (Extensive parenchymal damage (pulped brain).

The doctor opined that severe force was used. This is a brutal assault with a lethal object, by three young brothers on their elderly brother. This is a bad murder where life was unnecessarily lost.

A sentence of 16 years cannot be said to be severe; compare S v Sherman SC117-84 and S v Chiringa 2002 (2) ZLR 537 (S).

The application for leave, so far as sentence, is devoid of merit and must therefore be refused.

As accordingly, I order as follows:-

“ALL THREE APPLICANTS:

(1) Leave to appeal against conviction be and is hereby granted.

(2) Leave to appeal against sentence be and is hereby refused.”

On 28 July 2004, the appellant was arraigned before the Provincial Magistrates Court, Harare on two charges. Firstly, he was charged with contravening section 4(2)(b) of the Firearms Act [Chapter 10:09].  Secondly, he was charged with contravening section 13(1)(e) of the Public Order and Security Act [Chapter 11:17].

The appellant tendered a limited plea of attempting to contravene section 4(2)(b) of the Firearms Act [Chapter 10:09]. The State declined to accept such limited plea. In respect of count two he tendered a plea of guilty and he was duly convicted on his own plea. The State proceeded to trial in respect of count one. After considering the evidence led, the court a quo returned  a verdict of guilty of attempting to contravene section 4(2)(b) of the Firearms Act [Chapter 10:09]….,.

In these proceedings, the appellant was represented by Mr Samkange.

On 24 September 2004, the appellant, through his legal practitioners, noted an appeal against both conviction and sentence. He also instituted formal review of proceedings before this court in November 2004. In those papers, as amended, the appellant sought a reduction in respect of the sentence imposed.  But in his submissions to the reviewing court he sought also to challenge the propriety of the conviction in respect of count one. CHITAKUNYE J, in the course of the review, confirmed the conviction in respect of both counts. The learned judge also made an order that the separate sentences were to run concurrently.  The net effect of this order was that the appellant was sentenced to four years imprisonment. (See case number HC12397/04).

It is common cause that the appellant's legal practitioners filed heads of argument on 16 December 2005 in respect of the appeal. In these Heads, the appellant's legal practitioner took issue with the propriety of the sentence imposed only and made no submissions in regard to conviction.

The State responded in its Heads filed on 6 January, 2006.

The appellant, it is not in dispute, served his full sentence before the appeal was prosecuted. Following the institution of formal extradition proceedings, the appellant was then extradited to the requesting country in or about January 2008.

This appeal has been pending since the latter part of 2004.

Heads of argument on behalf of both the appellant and the respondent, respectively, were filed by early January 2006. It is a trite proposition of the law that the appellant's legal practitioners bear an onus to ensure the expeditious hearing of a matter awaiting appeal. A period of five years has elapsed without the appeal being heard. Significantly, no reasons, let alone cogent reasons, have been advanced by the appellant's legal practitioners for the inordinate delay in the hearing of this case. Furthermore, no reasons are discernible from the record for the lengthy delay that has occurred.

There is a letter from the appellant's legal practitioners dated 1 September 2006. Part of the letter, which was addressed to the Criminal Registrar reads as follows:

“We refer to the above notice of hearing in which you indicated that the appeal will be heard on 14 September 2006, could you please remove it from the roll because Mr Samkange will be engaged in the High Court in the matter of the State vs Dr C. Kuruneri which has been set down to be heard from 11 September to the end of September 2006.

Our client would want our Mr Samkange to personally argue the appeal on his behalf. Please note that there will be no prejudice to the State because our client is already serving sentence, which he is appealing against and is due for release on 11 May 2007. Should he advise to us to have the matter heard before completion of the sentence we will approach you for a new set down date. In the interim period please keep it in abeyance.”

It is apparent from the narration of events that there has been an inordinate delay in the prosecution of this appeal. Such delay is attributable to the appellant through his legal practitioner Mr Samkange. The appellant served the sentence imposed upon him and he has since departed from this jurisdiction. It follows that the lengthy delay of five years before prosecuting an appeal against sentence renders such proceedings to be of academic interest. In casu, the appellant's legal practitioners' quest to have this appeal determined after a delay of five years constitutes abuse of court process. Such conduct is not expected of a senior and experienced legal practitioner like Mr Samkange.

To compound matters, the appellant's legal practitioner, Mr Samkange, on 5 January 2011, filed a Notice of Withdrawal with the Registrar in the following terms:

“Take notice that the appellant hereby withdraws its appeal filed with this court on 24 September 2004 and each party bears its own costs.”

A day later, on 6 January 2011, the same legal practitioner filed a Notice of Withdrawal where strangely it is stated as follows:

“Take Notice that the appellant hereby withdraws his appeal against sentence only filed with this court on 24 September 2004 but persists with the appeal against conviction.”

The lengthy and detailed Heads of Argument filed by Mr Samkange on 16 December 2005 are restricted to an appeal against sentence only and do not allude to the issue of conviction. There is no appeal against conviction in these Heads of Argument. The effect of the Notice of Withdrawal filed by Mr Samkange of 5 January is that there is no appeal pending before this court.

There is no application as required by law for reinstatement of this appeal.

Instead, Mr Samkange filed a Notice of Withdrawal against sentence only in which he purports to reinstate the appeal against conviction. In view of this turn of events, this court, mero motu, raised the issue as to whether or not there was an appeal pending before this court. At the hearing, Mr Samkange was at pains to justify this defective appeal on the ground that the original notice of appeal also challenged the appellant's conviction.

However, when it was pointed out that his original Heads of Argument never dwelt with the issue of conviction, Mr Samkange accepted that to be so and stated he took full blame for the anomaly. He also conceded that the initial grounds of appeal were inadequate and thus he filed “additional grounds” a day before the hearing.

It is trite that there are rules of court that govern when a notice of appeal should be filed or when it can be amended. When this was pointed out to Mr Samkange, he submitted that there is no rule governing the amendment of a notice of appeal. He made this submission in support of an “addendum to the grounds of appeal against conviction.” That was filed a day before the hearing together with an addendum to the Heads of argument. Despite the withdrawal of the appeal, Mr Samkange also submitted that a criminal appeal does not lapse. Again, having been pressed on the fact that the original Heads of argument did not address the purported appeal against conviction, Mr Samkange then submitted that he ought to have applied for condonation of late filing of Heads of argument titled “appellant's “addendum to heads of argument”.

This court is of the view that there is clearly no proper appeal pending before this court. The filing of these additional documents demonstrates clear abuse of court process on the part of Mr Samkange. For that reason this court is unable to entertain this purported appeal.

This is an application by the Attorney General for leave to appeal against the respondent's acquittal at the close of the State case. The application is made in terms of section 198(4) of the Criminal Procedure and Evidence Act [Chapter 9:07].

The respondent appeared before a Victoria Falls magistrate facing a total of 833 counts being 32 counts of violating sections of the Exchange Control Act and the Exchange Control Regulations [Statutory Instrument 109 of 1996], 72 counts of fraud and 727 counts of theft. During the course of the trial, the State withdrew 56 counts. At the close of State case the respondent was acquitted of 32 counts of fraud under the Exchange Control legislation and 2 counts of fraud. The court also acquitted the respondent on 406 charges on account of withdrawal after plea by the prosecutor. The respondent was put on his defence on 337 charges. At the close of the trial the respondent was also acquitted of these charges as well.

The applicant seems to me to be seeking for leave in respect of all the charges which the respondent was acquitted by the trial court. This includes verdicts of not guilty returned after the prosecutor withdrew the charges after plea and those where the acquittal was after a full trial – R v Sikumba 1955 (3) SA 125 (E); S v Suliman 1969 (2) SA 385 AD and S v Bopape 1966 (1) SA 145 (F).

Section 198(4) of the Criminal Procedure and Evidence Act [Chapter 9:07] does not cover the case where the prosecutor has, in effect, withdrawn the charge….,.

Because the application is based on section 198(4) of the Criminal Procedure and Evidence Act [Chapter 9:07] it can only be directed to the 32 charges under the Exchange Control Regulations and the 2 charges of fraud where the respondent was acquitted at the close of State case. As a result, my focus will only be on these latter 34 charges.

The issue is whether the applicant has any prospect of success on appeal. The appeal court should be protected from the burden of having to deal with appeals in which there is no prospect of success – S v Rens 1996 (1) SA 1218 (CC)…,.; J R ROWLAND, Criminal Procedure in Zimbabwe, 1996…, and S v Mutasa 1988 (2) ZLR 4 (SC). In other words, before the application could be granted it is necessary for the applicant to show a reasonable prospect of success on appeal. If the applicant has prospects, leave to appeal should be granted, if not, it should be refused. It is not enough to make out a reasonably arguable case.

In casu, was it competent for the trial to put the respondent in some of the charges and discharge him on others? If the answer is the negative then there is prospect of success on appeal and leave should be granted. The answer is that such an approach was competent – S v Hartlebury & Anor 1985 (1) ZLR 1 (HC).

The accused were arraigned before me and two assessors for trial on 4 of October 2010. At that trial, they objected to being tried on the grounds that they had been improperly brought before us for trial.

The facts giving rise to their objection were to a large extent common cause. The undisputed facts are that the accused persons were initially indicted to the High Court for trial on the above charges by a magistrate on 4 June 2008 in terms of section 65 as read with section 66 of the Criminal Procedure and Evidence Act [Chapter 9:07]. Section 160(2) of the Criminal Procedure and Evidence Act [Chapter 9:07] requires that a person committed to the High Court for trial must be tried within a period of six months from the date of committal; failure of which his case must be dismissed.

The accused were, however, not tried within the prescribed time limit prompting MUSAKWA J to dismiss the case and order their release from custody.

The six accused were, however, not released from custody because they are facing other charges for which they have been remanded in custody. The seventh co-accused that was not facing any other charges was duly released in terms of MUSAKWA J's order. Since then he has not been located by the State. Despite having been released for want of prosecution, the six accused were subsequently re-indicted and remanded in custody in terms of section 65 as read with section 66 of the Criminal Procedure and Evidence Act [Chapter 9:07].

Aggrieved by their re-indictment and remand in custody, the six accused appealed to this court arguing that their re-indictment and subsequent remand in custody was unlawful. They argued that in terms of section 321 as read with section 322 of the Criminal Procedure and Evidence Act [Chapter 9:07] they were supposed to be brought to court by way of summons instead of being re-indicted. The accused were subsequently placed before MUSAKWA J for trial. They, however, objected to the commencement of the trial arguing that the trial should be held in abeyance until the appeal had been determined. MUSAKWA J obliged and ordered, on 27 July 2010, that the trial be postponed until the pending appeal had been determined. Despite MUSAKWA J's order, the matter was subsequently placed before me for trial on 4 October 2010. They, again, objected to the commencement of the trial pointing to MUSAKWA J's order and raising the same arguments as previously presented before the learned judge. The State countered that MUSAKWA J's order was premised or conditional upon the accused effectively and expeditiously prosecuting their appeal. On 13 October 2010, I dismissed the accused's objection and ordered that the trial must proceed.

The appellant was arraigned before the Regional Magistrate at Bulawayo on a charge of rape; the allegations being that during the month of August 2010 he had raped the complainant aged three (3) years at a plot in Maraposa Insuza.

Despite the appellant's plea of not guilty the trial court convicted him of one count of rape….,.

Not happy with his conviction and sentence, the appellant made an application for leave to prosecute an appeal against both the conviction and sentence. He was only granted leave to appeal against sentence.

It is that appeal which is the subject of this judgment.

The appellant was convicted by the Regional Magistrates' Court for Hwange of one count of rape and sentenced to 14 years imprisonment of which 3 years imprisonment was suspended for 5 years on condition of future good behaviour. 

He appealed against both conviction and sentence.

Before the matter was set down for argument, the Attorney General's representative conceded the appeal and gave notice to the Registrar, in terms of section 35 of the High Court Act [Chapter 7:06], that he does not support the conviction. The matter was then placed before me for consideration.

Section 35 of the High Court Act [Chapter 7:06] provides as follows:

“When an appeal in a criminal case, other than an appeal against sentence only, has been noted to the High Court, the Attorney General may, at any time before the hearing of the appeal, give notice to the Registrar of the High Court that he does not, for the reasons stated by him, support the conviction, whereupon a judge of the High Court, in chambers, may allow the appeal and quash the conviction without hearing argument from the parties or their legal representatives and without their appearing before him.”

I have gone through the record of proceedings and submissions made by counsel and I am of the view that the concession made has been properly made as the conviction of the appellant is indeed unsafe.

Accordingly, I order as follows; that

(1) The conviction of the appellant be and is hereby quashed.

(2) The sentence of the appellant is hereby set aside.

In this matter, the Attorney-General has, in terms of section 35 of the High Court Act [Chapter 7:06], filed a notice conceding that the conviction of the appellant cannot be supported. Section 35 of the High Court Act [Chapter 7:06] provides:

“35 Concession of appeal by Attorney-General

When an appeal in a criminal case, other than an appeal against sentence only, has been noted to the High Court, the Attorney-General may, at any time before the hearing of the appeal, give notice to the registrar of the High Court that he does not, for the reasons stated by him, support the conviction, whereupon a judge of the High Court, in chambers, may allow the appeal and quash the conviction without hearing argument from the parties or their legal representatives and without their appearing before him.”

The Attorney-General was aggrieved by the sentence as he was of the view that it was far too lenient.

The Attorney-General made an application for leave to appeal against this sentence by way of a Chamber application on 5 April 2012. To this Chamber application was appended the draft notice and grounds of appeal as is required by the Supreme Court (Magistrates Court) (Criminal Appeals) Rules, Statutory Instrument 504 of 1979. The application for leave to appeal was out of time. Notwithstanding this anomaly, no application for an extension of time within which to apply for leave to appeal out of time was made nor was an application for condonation of the late filing of the application for leave to appeal made as is required by the Rules.

In the heads of argument, filed on behalf of the Attorney-General, the admission is made that there has been no compliance with the Rules. This court is urged, in those heads, to condone the lack of compliance with the Rules by the Attorney-General on the basis that Rule 5 of the Supreme Court (Magistrates Court) (Criminal Appeals) Rules permits a departure from the Rules when this is in the interests of justice.

The submission lacks merit.

The Appeals Rules are clear and categorical. In terms of Rule 15 of the Supreme Court (Magistrates Court) (Criminal Appeals) Rules, 1979, where the Attorney-General wishes to appeal against a sentence passed by a Magistrates' Court, he shall, as soon as possible, and, in any event, not later than ten days from the date when that sentence is passed, apply for leave to appeal. The court has no discretion in the matter as this is a peremptory requirement. Where there has been a failure to comply with the peremptory provisions of the Rules, a party guilty of such failure to comply must, if it is minded to pursue the proposed appeal, apply for leave. It is only then that the court may exercise its usual discretion.

The applicant has not elected to do this.

There are other deficiencies in the applicant's case.

There is nothing on the papers before me showing that the applicant caused to be placed before the Clerk of the Court for onward transmission to the trial magistrate the application for leave to appeal together with the draft grounds of appeal for the magistrate's comments. (Rule 15(b) of the Supreme Court (Magistrates Court) (Criminal Appeals) Rules). There is no proof that the magistrate was afforded an opportunity to comment on the draft grounds as he was obliged to do in terms of Rule 16 of the Supreme Court (Magistrates Court) (Criminal Appeals) Rules. Ordinarily, the Clerk of Court would have signaled that the papers have been placed before him for his attention by placing his official stamp on all copies of the applications before they are forwarded to the Registrar of this court. The Clerk of Court would have had to comply with the Rules by ensuring that the manuscript copy of the record of proceedings is placed before me for consideration of the application for leave. (Rule 16(2) of the Supreme Court (Magistrates Court) (Criminal Appeals) Rules). As matters stand, what is before me for the determination of the application for leave to appeal against sentence are just the reasons for judgment and those for sentence. Without the full transcript, or at least the manuscript of the trial proceedings, it is difficult for a court seized with such an application, to make a determination of the question whether the applicant has bright prospects for success. The failure to comply with the Rules has hamstrung the determination of the matter for which the application is made. The failure to comply with the Rules must be laid at the applicant's door.

In the unlikely event that I am wrong in the view that I hold that this matter stands to be dismissed for the above reasons, I proceed to consider the merits of the application before me.

The right of the Attorney-General to appeal against the inadequacy of the sentence is an unusual one. It does not exist either in South Africa or in England and there have been few cases in this country where such a right was successfully claimed and exercised. There is therefore very little guidance to be found as to the principles to be followed when the Attorney-General invokes this right. Section 62(1) sets out the general parameters within which the Attorney-General may exercise his right of appeal against sentence. It states:

“62 Attorney-General may appeal to High Court against sentence

(1) If the Attorney-General considers that the sentence imposed in any criminal case by a court is -

(a) Incompetent in law, he may appeal to the High Court against that sentence; or

(b) Inadequate -

(i) In the light of the findings of fact made by the court and the nature of the charge; or

(ii) Because it was based on findings of fact for which there was no evidence or on a view of the facts which could not reasonably be entertained;

he may, with the leave of a judge of the High Court, appeal to the High Court against that sentence.”

[Subsection as amended by section 7 of Act 9 of 1997]

Two grounds of appeal are available to the Attorney-General in a case where he wishes to exercise his right of appeal against sentence. First, he may argue that the sentence is incompetent at law. Second, he may argue that the sentence imposed by the magistrate is inadequate either in the light of the findings of fact made by the court and the nature of the charge; or because it was based on findings of fact for which there was no evidence or on a view of the facts which could not reasonably be entertained. Alternatively, he may raise both grounds of appeal against sentence in appropriate circumstances. Where the incompetence of the sentence is raised, in my view, this will be easy of demonstration as the powers of that court are strictly circumscribed by the Magistrates Court Act [Chapter 7:10]. Where, however, the ground of appeal raised is that of inadequacy of the sentence, then a heavier onus exists on the Attorney-General not only to demonstrate the inadequacy of the sentence imposed, but also to show that in imposing such a sentence, the court misdirected itself in light of the findings of fact made by the court and the nature of the charge or because it was based on findings of fact for which there was no evidence or because it was based on a view of the facts which could not reasonably be entertained.

Presently, the draft grounds of appeal do not in any way encompass matters specifically set out in section 62(1) of the Magistrates Court Act [Chapter 7:10].

The first ground relies on the averment that the sentence imposed “is manifestly lenient to the extent that justice was actually denied to the community.”

The second ground purports to decry the failure by the magistrate to pass a sentence of imprisonment since, it is said, the law provided that a person convicted of conspiracy to commit a crime shall be liable to the same punishment to which he or she would have been liable had he or she actually committed it.

The third ground speaks to trivializing the crime for which the respondents have been convicted of. It is said that the court a quo ought to have considered that “the conspiracy would have resulted in the occasioning of public violence in aggravated circumstances and that the motive driving the conspiracy was the overthrow of a constitutional government.”

In my view, the correct approach to adopt regarding such an appeal is whether the appellant has any prospect of success in light of the requirement set out in the section 62(1) of the Magistrates Court Act [Chapter 7:10]. In applying this test it is important to recall the words of FIELDSEND CJ in Attorney-General v Chagwiza 1982 (2) ZLR 165…, -

“[The Attorney-General] will also have to bear in mind that, just as in appeals by convicted persons against sentence, the appeal court will not interfere merely because it would itself have imposed a different sentence. The approach is substantially the equivalent of that applied in appeals against the severity of sentence: before a sentence will be increased it must be found to be manifestly inadequate: Attorney-General v Tobiwa and Ors 1980 ZLR 192. It is well-recognised that sentence is primarily a matter for a trial court which has had an opportunity of seeing precisely the type of person with whom it is dealing - a very important factor in assessing sentence. An appeal court will be even more reluctant to increase a sentence than to reduce one because of the hardship to the convicted person who may have reconciled himself to his initial punishment. And this reluctance becomes greater if the sentence has already been served and an increased sentence would result in a person who had been released being recalled to serve further imprisonment.”

The right of appeal should, therefore, be used with circumspection, and there are three main situations where it is appropriate -

(1) Where a magistrate has adopted an entirely erroneous view of the law; 

(2) Where a sentence is so inadequate as not to do justice to the community as a whole; and

(3) Where, because of special circumstances, such as the prevalence of a particular type of offence, a higher scale of penalties is called for than that being applied.

(See Attorney-General v Chagwiza1982 (2) ZLR 165…., (per FIELDSEND CJ)).

It seems to me that the purported draft grounds of appeal were mooted on the basis of a perceived inadequacy of the sentence since there is no allegation of incompetence of the sentence. The grounds of appeal, therefore, ought to have been brought strictly within section 62(1)(b) of the Magistrates Court Act [Chapter 7:10] since they will be considered within the strictures imposed by that section. Without “clearly and specifically” setting out in which respect the magistrate's findings of fact regarding sentence could be impugned, as required in terms of Rule 22(1) of the Supreme Court (Magistrates Court) (Criminal Appeals) Rules, 1979, I am of the firm view that the Attorney-General's prospects of success on appeal are less than dim.

In my view, the correct approach to adopt when considering an application for leave to appeal should not be based on whether an appeal is arguable or not, but on its prospects of success. Support for this approach is based on sound and persuasive authority. In R v Baloi 1949 (1) SA 523 (AD) CENTLIVRES JA…, stated…, -

"In the present case, RAMSBOTTOM J granted leave to appeal because:

'some, at any rate, of the grounds which the accused wishes to raise, or which it is wished to raise on his behalf, seem to me to be fairly arguable.'

That, however, is not the test to be applied. It is true that in Scott v New Minerva Syndicate Ltd 1911 AD 369 at p371, one of the grounds on which an application for leave to appeal was granted was that the case was fairly arguable and that in R v Wessels 1933 AD 395 STRATFORD ACJ  said that:-

“if the appeal involves a question of law on which the guilt of the accused depends, leave will be granted if that question is an arguable one.”

In both those cases, the judgment was ex tempore, but, in any event, those  cases can, in view of the decision in R v Nxumalo 1939 AD 580, no longer be regarded as laying down the true test. In R v Nafte 1929 AD 333 at p338, CURLEWIS JA said:

'Whether a point is unarguable or not is somewhat vague and is not very appropriate.'

The same applies to the word 'arguable' and the phrase 'fairly arguable'. The word 'arguable' is misleading unless it is made clear that it is used 'in the sense that there is substance in the argument advanced on behalf of the applicant' - (per TINDALL AJP in Beatley's Trustee v Pandor & Co 1935 TPD 365 at p366), for there are very few cases which are not arguable in the wide meaning of the word."

In my opinion, the test to be applied when considering an application for leave to appeal under section 62(1) of the Magistrates Court Act [Chapter 7:10] is whether the Attorney-General has a reasonable prospect of success on appeal. If he has, then leave to appeal should be granted. If he has not, then leave to appeal should be refused.

Applying the above principles to the present application, I am satisfied that the Attorney-General's appeal does not enjoy any prospect of success. In the result, I make the following order:

After sentence was pronounced, the appellant noted an appeal against both conviction and sentence on 11 April 2006. Advocate Matinenga prepared the appellant's heads of argument which were filed on 28 February 2008. The respondent's heads of argument were filed on 30 May 2008. The reason for the delay appears to be related to problems which besotted the courts around that time regarding stationery and equipment. (The record reflects that the legal practitioners offered to assist with bond paper). There is no explanation as to what transpired between 2008 and 2011 but there is a certificate by the parties certifying, in April 2012, that the record was an accurate transcript of the original record of trial proceedings. On the date set for the appeal hearing, 13 November 2012, Advocate Uriri appeared for the appellant. He applied for the postponement of the matter, and, by consent, the matter was postponed to 20 November 2012. On that date, however, there was no appearance by the appellant or his counsel.

Counsel for the State, Mr Mugabe, moved for the dismissal of the matter on the merits as the matter was long outstanding on the roll.

We agree with him.

He presented argument for the respondent. After hearing Mr Mugabe, for the State, we dismissed the appeal on the turn and indicated our reasons will follow later. These are the reasons.

The first issue that exercised our minds was whether, in light of the non-appearance by the appellant, we could still proceed to hear argument from the respondent and decide the matter on the merits. In Matamisa v Mutare City Council (A-G intervening) 1998 (2) ZLR 439 (S) the Supreme Court expressed itself, when faced with a similar situation, as follows -

“The comments of the Attorney-General about the nature of a hearing at the Supreme Court, are, in my view, correct. An appeal is not a trial. It is not necessary to go over everything at the appeal hearing. Heads of argument are submitted, among other reasons, to shorten oral argument. The court will almost certainly have read these before the hearing. If so, it may consider that it is not necessary to waste its' and counsel's time while counsel simply reads out what he has already put in writing. Sometimes the court may ask counsel to deal only with particular points. It may advise counsel that it does not want to hear him at all, because its prima facie view is that counsel's argument is correct, and will ask the other side to present his argument in full.

All this is part of the way this court and other courts of appeal elsewhere in the world have always conducted their proceedings.” (per EBRAHIM JA….,.).

In my respectful view, these sentiments apply with equal force in appeals before this court.

In casu, both the appellant and the respondent were represented through counsel when the matter was, by mutual consent, postponed to a specific date and time at the request of the appellant. Yet, there is no explanation for non-appearance by the appellant on the day of hearing. The respondent, in my respectful view, is correct in urging this court to hear and dispose of the matter on the merits. The matter cannot simply be struck off the roll. This, in my view, is inconsistent with the requirement to treat all appeals generally as urgent matters. In any event, having formed our prima facie view of the matters raised in this appeal, a determination on the merits will move the matter to the next step and bring it to finality sooner rather than later.

Rule 4 of the Supreme Court (Magistrates Court) (Criminal Appeals) Rules, S.I. 504 of 1979, provides:

“The prosecution and finalization of all appeals in terms of these rules, especially any appeal, other than an appeal by the Attorney-General in terms of paragraph (a) of s61 of [Cap 7:10], relating to a case in which the convicted person has received an unsuspended prison sentence, shall be treated by all persons concerned as a matter of urgency.”

Appeals in the High Court are governed by section 38 of the High Court Act [Chapter 7:06]. Section 38 of the High Court Act [Chapter 7:06] provides, in respect of appeals;

“38 Determination of appeals in ordinary cases

(1) Subject to this section and section thirty-nine, on an appeal against conviction, the High Court shall allow the appeal and quash the conviction if it thinks that the judgment of the court or tribunal before which the appellant was convicted should be set aside -

(a) On the ground that -

(i) It is unreasonable; or

(ii) It is not justified, having regard to the evidence; or

(b) On the ground of a wrong decision on any question of law; or

(c) Because, on any other ground, there was a miscarriage of justice;

and, in any other case, shall dismiss the appeal.”

In convicting the appellant, the learned magistrate accepted the evidence of the complainant and rejected that of the appellant and his witnesses. He analysed the complainant's evidence, her ability to withstand gruelling cross-examination by counsel for the appellant during the trial and concluded that she was worthy of belief. He found corroboration of her evidence in the evidence of Mrs Musara to whom the complainant had disclosed the abuse.

In his notice and grounds of appeal it appears that the appellant takes issue with the general findings of facts by the learned trial magistrate. I say that “it appears” because the grounds set out in the notice of appeal are incoherent, and, as such, do not “clearly and specifically” set out the grounds of appeal as required by Rule 22(1) of the Supreme Court (Magistrates Courts) (Criminal Appeals) Rules, S.I.504 of 1979. As an example, I recite the first and second grounds verbatim:

“1. The learned Magistrate in court a quo erred in conceding that the State proved beyond reasonable doubt when it is clear from the evidence that there are so many possibilities, in particular:

While the doctor, who testified, said that there was definite penetration, he could not tell when the penetration took place but the notches were not fresh. The alleged abuse could have taken place prior to 2006 or even after 2006. 

Apart from sexual intercourse, there are other factors which can stretch the hymen e.g. a finger or a solid object. This applies with more force considering that the complainant did not see the appellant inserting his penis into her vagina.

Any other person, other than the appellant, could have perpetrated the abuse. In particular, the complainant's father, Kudakwashe Fred, was considered a suspect.

2. For the stronger reason, the court did not appreciate that the mere failure of the accused to win the faith of the bench does not disqualify him from an acquittal. Proof beyond reasonable doubt demands more than that a complainant should be believed and the accused disbelieved. It demands that a defence succeeds whenever it appears reasonably possible that it might be true. This insistence upon objectivity far transcends mere considerations of subjective persuasion a judicial officer may entertain towards any evidence. The administration of justice would otherwise be held hostage of the plausible rogue whose insincere but convincing blandishments must prevail over the stammering protestations of the truth by the defendant, frightened or confused victim of false incrimination. (sic)”

Such grounds of appeal do not make it clear what the basis of dissatisfaction is, that is, whether it is an error of law or one of fact or both or a misdirection on the facts or of both facts and law.

The importance of complying with the requirements of the Supreme Court (Magistrates Courts) (Criminal Appeals) Rules, S.I.504 of 1979 cannot be over-emphasised. Lack of compliance may result in the court regarding such notice and grounds of appeal a nullity. See R v Emerson 1957 R & N 743; 1958 (1) SA 442; S v Jack 1990 (2) ZLR 166 (SC); S v Ncube 1990 (2) ZLR 303.

Rule 22(1) of the Supreme Court (Magistrates Courts) (Criminal Appeals) Rules, S.I.504 of 1979 reads:

"The appellant shall, within ten days of the passing of sentence, or, where a request has been made in terms of sub-rule (1) of Rule 3 of Order IV of the Magistrates Courts (Criminal) Rules, 1966, within seven days of the receipt of the judgment or statement referred to in that Rule, whichever is the later, note his appeal by lodging with the clerk of the court a notice in duplicate setting out clearly and specifically the grounds of the appeal…,."

As can be seen from Rule 22(1) of the Supreme Court (Magistrates Courts) (Criminal Appeals) Rules, S.I.504 of 1979 the above grounds of appeal do not comply with the Supreme Court (Magistrates Courts) (Criminal Appeals) Rules, S.I.504 of 1979. The notice of appeal does not set "out clearly and specifically the grounds of the appeal."

That which the appellant is attacking in the judgment of the convicting court must be set out in the manner laid down by Rule 22(1) of the Supreme Court (Magistrates Courts) (Criminal Appeals) Rules, S.I.504 of 1979. A generalization, such as set out in the appellant's grounds of appeal against conviction, is not good enough. It does not point out where the magistrate erred or misdirected himself. See R v Emerson 1957 R&N 743; 1958 (1) SA 442; Du Toit v R 1958 R&N 177 (SR).

A better understanding of what is required can be gleaned from Rule 51(7) of the Magistrates Courts' Act 32 of 1944 (South Africa). RABIE JA…, in Kilian v Messenger of the Court, Uitenhage 1980 (1) SA 808 (AD) stated the Rule's requirement in an extract taken from the official translation of the judgment at 234 (p815 of the Report) thus:

"Rule 51(7) provides, in so far as it is relevant, that:

'A notice of appeal or cross-appeal shall state -

(a) …,.

(b) The grounds of appeal, specifying the findings of fact or rulings of law appealed against.'

Such a notice requires a precise statement of the points on which the appellant relies, so that the respondent may know on which points he must prepare a reply, and so that the Court may know on which points a decision is required. See e.g. Himunchol v Moharom 1947 (4) SA 778 (N) at 780; Harvey v Brown 1964 (3) SA 381 (E) at 383. The magistrate must also be properly informed of the grounds on which the appeal is based, so that he can comply with the duties imposed on him by Rule 51(8). Para 1 of the notice of appeal merely contains an allegation that the magistrate erred in making the order in question, without stating in what respect he erred, and it cannot be said that it contains a ground of appeal as required by Rule 51(7)."

Although Rule 51(7) of the Magistrates Courts' Act 31 of 1944 (South Africa) deals with civil proceedings, it, in as far as appeals are concerned, is relevant to criminal appeals. There must be stated in the Notice of Appeal "a precise statement of the points on which the appellant relies." A statement that the magistrate "erred in fact and in law in holding that the State had proved beyond reasonable doubt when it is clear from the evidence that there are so many possibilities” is not precise enough. As I have pointed out above, it does not inform the respondent or the magistrate what it is that is being attacked. The respondent is required to prepare his answer to the allegations made in the Notice of Appeal. Rule 23(1) requires a magistrate to reply to the Notice of Appeal. He must set out in a statement his reasons for judgment and sentence and these reasons must be a reply to the grounds on which the appeal is based.

The response by the magistrate enables the appellant to amend his grounds of appeal should he wish to do so. These Rules are for the benefit of the appellant, the respondent and the court. See S v McNab 1986 (2) ZLR 280 (SC).

At the hearing, counsel for the appellant sought to amend the grounds of appeal by raising an additional ground framed as follows:

“9A. The respondent is issue-estopped, in the absence of an application to withdraw an admission from contending to the contrary of concessions made in the bail cause in B1354/11, namely that:- 

9A.1 It was imperative therefore that the trial court should have treated the victim's evidence carefully.

9B.2 Respondent [the State] does not find comfort in the evidence of the complainant. On p2 of the transcribed record the complainant talks of having been effectively penetrated into her vagina by the applicant once on two consecutive days. She would thereafter go and bath and later join other children to play.

9B.3 The complainant, who had opportunities to make a report, did not make a report at the earliest possible opportunity and “one cannot expect her, at that age, not to know that what had been done on her was morally wrong and criminal.

9B. 4 Given her age, it is strange that no tell-tale signs of abuse were observed on her by the adults who were present and even the other children she was playing with.

…,.”

In essence, the additional ground of appeal is that since the respondent made submissions which amounted to concessions indicative of lack of support of the appellant's conviction, the respondent was bound by that concession and as such the matter must be dealt with in terms of section 35 of the High Court Act [Chapter 7:06].

I need not point out, again, that I find this way of drafting grounds of appeal incompatible with the requirement of the Rules of Court in that it does not set out “clearly and specifically” the basis of attacking the conviction nor does it set out the basis of impugning the conclusions of law by the magistrate.

I will, however, proceed to deal with the appeal as if they complied with the Rules.

The heads of argument filed on the appellant's behalf are bulky and extensive. However, the content of the heads does not match the volume upon which the content is spread.

This is an appeal that was noted out of time.

The record shows that two notices of appeal were filed within the stipulated period within which to file the notice, one by his legal practitioners and another by the appellant personally. As he has since been granted leave to prosecute his appeal in person, nothing should really turn on the quality of the papers filed since the papers substantially comply with the Rules of this court.

The respondent's counsel had contended that the two robbery charges should each attract a sentence of 8 years imprisonment and the attempted robbery 6 years imprisonment. This court would then be substituting the trial court's sentence with a more severe one. That would be undesirable. 

The appellant did mention, in his notice of appeal, that the appeal was against both conviction and sentence but gave no grounds of appeal against sentence. The only grounds of appeal raised related to conviction. Consequently, the magistrate's response to the notice of appeal related to conviction only.

In our law, the sentencing court has a discretion in assessing an appropriate sentence. The appeal court does not have a general discretion to modify the sentences of trial courts. Mkombo v The State HB140-10…,.

For the appellate court to interfere with the trial court's sentencing discretion there should be a misdirection on the part of the sentencing court or the sentence imposed should be manifestly excessive: S v Chiweshe 1996 (1) ZLR 425 (H)…,.; S v Ramushu SC25-93; S v Nhumwa SC40-88…,.

In my view, in casu, the sentence imposed is not vitiated by any misdirection as none exists and it fell within the sentence that can be imposed for such offence. In fact, considering the serious aggravating factors that exist in this matter, the appellants are very lucky to have gotten away with such a lenient sentence.

It is for the foregoing reasons that the appeal is without merit. It is accordingly dismissed.

The appellants were arraigned before the magistrate sitting at Mutare on a charge of unlawful entry into premises as defined in section 131(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. They all pleaded not guilty and were acquitted of the offence charged but convicted of receiving stolen property knowing it to have been stolen, as defined in section 124(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]….,.

Further, after the State case had been closed, the record of proceedings does not show the defence case. 

The record is incomplete. 

One cannot tell how the appellant faired under cross-examination. The irregularity is very serious and fatal. It is highly doubtful if she was afforded an opportunity to present her defence. 

The notice of appeal, which was filed with this court on 23 August 2012, relates to the two appellants.The papers which followed that notice, however, related to the first appellant only. The papers in question comprise:

(i) The first appellant's heads of argument; and

(ii) The respondent's heads of argument which were filed in respect of the first appellant.

During the hearing of the matter, the court sought clarification from the appellant(s)' counsel on whether the appeal which was being argued related to the first appellant only or to both appellants. Counsel who was standing in for the firm which filed the notice of appeal with the court remained unclear as regards the correct position of that matter. He started by stating that he was under the genuine but mistaken view that he was representing both appellants. When, however, his attention was drawn to the name(s) which appeared in the papers which were filed with the court after the notice of appeal, he acknowledged the anomaly and he urged the court to deal with the matter which pertained to the second appellant in terms of section 26 of the High Court Act [Chapter 7:06].

The procedure for the noting of an appeal against conviction and sentence in the Magistrates Court is provided for in the Appellate Division (Magistrates Court)(Criminal Appeals) Rules, S.I. 504 of 1979, specifically Rule 22(1), which provides, in relevant part:

“The appellant shall, within ten days of the passing of sentence, or, where a request has been made in terms of subrule (1) of Rule 3 of Order IV of the Magistrates Courts (Criminal) Rules, 1966, within five days of receipt of the judgment or statement referred to in that rule, whichever is the later, note his appeal by lodging with the clerk of court a notice in duplicate setting out clearly and specifically the grounds of the appeal and giving for the purpose of any service the address of his legal representative or, if a legal practitioner is yet to be appointed, the address of the appellant.”

The Rule has been interpreted in several judgments emanating from this Court. In S v Jack 1990 (2) ZLR 167 MCNALLY JA spelt out succinctly the requirements of the Rule in a Notice of Appeal thus…,:

“The appellant was unrepresented at his trial, but, on 30 August 1988, a 'notice of appeal' was lodged by his legal practitioner, Mr Mhlanga. The notice of appeal in regard to conviction was fatally defective. As against conviction on each count it contained the following single ground of appeal:

'The magistrate erred in finding the accused guilty despite the fact that the charge was not substantiated.'

This amounts to saying he was not guilty because he was not guilty. It is meaningless. A magistrate who receives such a notice of appeal cannot know what to say in response to it. The notice is not a notice of appeal (at any rate in regard to conviction) because it does not comply with the Rules. Rule 22, contained in S.I.504 of 1979, requires a notice “setting out clearly and specifically the grounds of the appeal.”

It is necessary to draw legal practitioners' attention again to the provisions of this Rule and to the judgment of BEADLE J…, in R v Emerson & Ors 1957 R & N 743; 1958 (1) SA 442 (SR). See also S v McNab SC159-86 and S v Marenga SC32-88:

“It seems to be widely believed that when a client who has been convicted and sentenced, belatedly instructs a legal practitioner, all that is necessary is that a notice of appeal be lodged setting out the most cursory and meaningless grounds with (sometimes) the promise that proper grounds will be substituted when the record is available. This is not so. A notice of appeal without meaningful grounds is not a notice of appeal. Since it is a nullity, it cannot later be amended.”

The learned judge of appeal had occasion, again, to discuss the requirements of Rule 22 in S v Ncube 1990 (2) ZLR 303, where…, he stated:

“The first of these grounds is the only appeal against conviction. I need only quote one passage from R v Emerson, supra, at 748D-E to show that such a ground is unacceptable. BEADLE J, with the concurrence of the Full Bench of the High Court of Southern Rhodesia, said this:

'I do not consider that such general grounds of appeal as “the conviction is against the weight of evidence” or “the evidence does not support the conviction” or “the conviction is wrong in law” are a compliance with the rule. It follows that where the only ground of appeal given in the notice is a vague one of this description the notice of appeal must be considered to be bad. The effect would be the same as if no notice of appeal had been given at all, and the Magistrate concerned would be perfectly within his rights in refusing to give his reasons for judgment on receipt of such a vague notice.'

The notice of appeal against conviction was therefore a nullity.”

It seems that the rider contained in those authorities is still not being heeded by those who practice law in this jurisdiction. A notice of appeal must contain grounds that are clear and specific. If a ground of appeal is general then it cannot be a valid ground of appeal. The learned judge in the court a quo did not state that grounds two to eight were invalid, instead, she held that they were amplifications of the first ground.

I agree.

An examination of each of the grounds illustrates the failure on the part of the appellant's legal practitioner to comply with the Rule.

The grounds of appeal filed in the High Court, and which the learned judge had to consider in the application for bail, were the following:

1. The court a quo seriously misdirected itself in convicting the appellant yet the circumstantial evidence adduced on behalf of the State did not lead to one conclusion that the appellant committed the offence but to different possibilities.

2. The learned magistrate erred in simply ruling out real possibilities as fanciful and far-fetched and making too many assumptions which were not supported by the evidence in any way.

3. The learned magistrate seriously misdirected himself in simply dismissing as irrelevant vital evidence that when the motor vehicle was stolen the appellant was within the premises hence he could not have stolen the motor vehicle in question and further that at one of the meetings it had been discussed that the motor vehicle in question had been seen somewhere.

4. The court a quo clearly failed to analyse the evidence before it but simply relied on unsubstantiated assumptions which were not supported by the facts in any way.

5. The learned magistrate erred in placing too much reliance on the fact that the appellant was the one in charge of the keys to the motor vehicles and hence he ought to be held responsible for the stolen motor vehicle yet the evidence did not prove the guilty (sic) of the appellant as required by law.

6. The court a quo erred in simply accepting the evidence of the State witnesses and just dismissing the appellant's testimony.

7. The court a quo erred in law and in fact by failing to properly apply its mind to the requirements that have to be met when relying on circumstantial evidence. If it had done so it ought to have acquitted the appellant.

8. The court a quo clearly misdirected itself by dismissing legitimate evidence and giving undue importance on circumstances which were not irreconcilable with innocence.

I find merit in the submission made by counsel for the respondent that the fact that an appellant has raised numerous grounds of appeal does not entail that the appellant has prospects of success on appeal.

GROUNDS OF APPEAL

The appellant has filed a total of sixteen grounds of appeal. I quote these verbatim.

“1. The learned judge erred in dismissing the Appellant's version in its totality.

2. The Appellant, together with the other trustees, purchased the shares and later invested them. The Appellant never lost control of the shares and other assets, both movable and immovable.

3. The court erred in failing to appreciate that the issue which was determined by the Supreme Court was between the Diocesan Trustees for the Diocese of Harare against The Church of the Province of Central Africa and that it was not between the Appellant and the Church of the Province of Central Africa.

4. The court erred in stating that the Appellant had no right to use the assets. Honourable HLATSHWAYO's order specifically allowed them to use and dispose of the assets. Alienation of the assets was on the strength of a court order.

5. The court erred in failing to appreciate that whilst the judgment by Honourable Justice HLATSHWAYO was extant the Appellant did not dispose of the property. The Appellant only disposed of the property after Chief Justice CHIDYAUSIKU's judgment which allowed them to use the assets.

6. The court a quo erred in holding that the Appellant had established and founded a church of his own.

7. The court a quo erred in interpreting that the two (2) judgments of Honourable Justice HLATSHWAYO and Honourable Justice CHIDYAUSIKU did not give the Appellant the right to use the property.

8. The court a quo also failed to appreciate that the Appellant used the same premises during the dispute and met all expenses incurred in doing so.

9. The shares were sold in order to maintain and preserve the rest of the other properties. The court erred in not appreciating that the alienation of the shares was in the interest of the Respondent at the material time.

10. The court erred in concluding that shares were sold because the Appellant must have realised that there is a likelihood of him losing the appeal and that he was trying to make “hay whilst the sun shines.”  There is no evidence to support this conclusion. It is totally unfounded and unjustified.

11. The court did not take into account the joint Stated case to the effect that the Diocese of Harare remained in possession of the Diocese of Harare Trustees which included the Appellant as the Bishop.

12. The court failed to appreciate that the Appellant did not act in his personal capacity but as Head of the Diocesan Trustees of the Diocese of Harare. To find the Appellant liable personally is unjustified in the circumstances.

13. The court erred in failing to give any meaningful justification why it dismissed the value of shares at the time they were sold which is US$270,000=. The US$270,000= is the actual value and market value at the time of sale of the shares.

14. The Respondent was not an administrator of the shares as it was not involved in the purchase of the shares. There is absolutely no evidence that the shares could have been sold for more than US$270,000=. The Respondent did not bring any evidence to prove that the shares could have been sold for more than US$270,000=.

15. The court failed to appreciate that the shares were sold through the Stock Exchange market and were therefore sold in public. No members of the public offered to buy the shares at a higher price. The suggestion that they were sold at a giveaway price is unjustified in the circumstances.

16. The court a quo erred in concluding that there was an agreement to the market value of the shares.” (sic).

I now turn to deal with the next issue requiring determination, namely, the meaning of “clear and concise” within the context of Rule 29 of the Rules of this court.

GROUNDS MUST BE CLEAR AND CONCISE

Rule 32 of the Rules of this court provides that the grounds of appeal contained in a notice of appeal must be clear and concise.

Many decisions of this court, and the courts in South Africa, have, over a long period of time, explained what is meant by the term, but this notwithstanding, many lawyers, including very senior ones, continue to experience considerable difficulty in properly formulating grounds of appeal that comply with the Rule. I think it is necessary to trace the various decisions of the courts on this aspect over the years, both in South Africa and this country.

In Hendricks v Wilcox 1962 (1) CPD 304, the appellant had filed a notice of appeal reading as follows: -

“Be pleased to take notice that an appeal is hereby noted against the judgment of absolution from the instance granted by the above honourable court to the defendant…, for the reason that the judgment was against the weight of the evidence…,.”

The court ordered that the appeal be struck off the roll for failure to comply with the Rules. In striking out the appeal, the court noted:-

“…, it is clear that a notice of appeal which sets out as a ground of appeal merely that the judgment is against the weight of the evidence is, generally speaking, bad…,. The magistrate made a number of findings of fact on the evidence and then made a further finding that neither party had been negligent. It is impossible to deduce from the notice of appeal which of these findings is being challenged.

…,.  I have come to the conclusion that the notice of appeal is bad. There is abundant authority to the effect that such a notice cannot be amended…,.”

In S v McNab 1986 (2) ZLR 280 (SC), the only ground of appeal before this court was that:

“The learned trial magistrate erred in fact and in law in holding that the State had proved the appellant was so drunk as to be incapable of having proper control of his motor vehicle.”

This court held that the above ground did not comply with the Rules of Court, and, more specifically, that the notice of appeal did not set out clearly and specifically the grounds of appeal. The court remarked at page 282 F-G:-

“…, there must be stated in the Notice of Appeal 'a precise statement of the points on which the appellant relies.'

A statement that the magistrate 'erred in fact and in law in holding that the State had proved appellant was so drunk to be incapable of having proper control of his motor vehicle' is not precise enough…, it does not tell the respondent or the magistrate what it is that is being attacked. The respondent is required to prepare his answer to the allegations made in the Notice of Appeal…,.”

In State v Jack 1990 (2) ZLR 166 (SC), the single ground of appeal on each of the two counts in respect of which the appellant had been convicted read:

“The Magistrate erred in finding the accused guilty despite the fact that the charge was not substantiated.”

The Supreme Court concluded that the above ground was not valid. The court, per McNALLY JA, remarked at page 167 D-G:-

“This amounts to saying he was not guilty because he was not guilty. It is meaningless. A magistrate who receives such a notice of appeal cannot know what to say in response to it…,. It is necessary to draw legal practitioners' attention, again, to the provisions of this Rule and to the judgment of BEADLE J (as he then was), in R v Emerson & Ors 1957 R & N 743; 1958 (1) SA 442 (SR)…,.

It seems to be widely believed that when a client who has been convicted and sentenced belatedly instructs a legal practitioner, all that is necessary is that a notice of appeal be lodged setting out the most cursory and meaningless grounds with (sometimes) the promise that proper grounds will be substituted when the record is available.

This is not so.

A notice of appeal without meaningful grounds is not a notice of appeal. Since it is a nullity, it cannot later be amended.”

In S v Ncube 1990 (2) ZLR 303 (SC), the only ground of appeal against conviction read as follows:-

“The learned magistrate erred in accepting the complainant's evidence.”

That ground was held to be unacceptable. McNALLY ACJ…, had the following to say at 303 G and 304 C-D:-

“It is not usual to write a judgment in respect of a matter which has been struck from the roll. This judgment is written for the guidance of practitioners and to serve as a warning to those who have not pondered the lesson of R v Emerson 1957 R & N 743 (SR)…,.

…,. I need only quote one passage from R v Emerson, supra, at 748 D-E, to show that such a ground is unacceptable. BEADLE J, with the concurrence of the full Bench of the High Court of Southern Rhodesia, said this;

'I do not consider that such general grounds of appeal as 'the conviction is against the weight of the evidence' or 'the evidence does not support the conviction' or 'the conviction is wrong in law' are a compliance with the Rule. It follows that where the only ground of appeal given in the notice of appeal is a vague one of this description the notice of appeal must be considered to be bad. The effect would thus be the same as if no notice of appeal had been given at all…,.'”…,.

In Songono v Minister of Law and Order 1996 (4) SA 384 (Eastern Cape Division), the learned judge (LEACH J) commenting on the requirement that grounds of appeal must be clearly and succinctly set out in clear and ambiguous terms to enable the court, and the respondent, to be fully and properly informed of the case which the appellant seeks to make out and which the respondent is to meet, stated…, that:-

“…, it has been held that grounds of appeal are bad if they are so widely expressed that it leaves the appellant free to canvass every finding of fact and every ruling of the law made by the court a quo, or if they specify the findings of fact or rulings of law appealed against so vaguely as to be of no value either to the Court or to the respondent, or if they, in general, fail to specify clearly and in unambiguous terms exactly what case the respondent must be prepared to meet…,.”

And, further, at 386 A-B, that:-

“…, the lengthy and rambling notice of appeal filed in casu falls woefully short of what was required. Mr Bursey suggested that grounds of appeal could be gleaned from the notice but that is not the point – the point is that the notice must clearly set out the grounds and it is not for the Court to have to analyse a lengthy document in an attempt to establish what grounds the applicant intended to rely upon but did not clearly set out….,.”…,.

In Arnold Cephas Kwanai v The State SC12-97, the only ground of appeal against conviction read as follows:-

“The learned magistrate erred in convicting the accused person in the absence of any concrete evidence showing beyond a reasonable doubt…, that he committed the offence.”

This court turned down a request to amend the notice of appeal on the ground that it was a nullity. It was a nullity because it did not set out 'clearly and specifically the grounds of appeal.'

In Van de Walt v Abreu 1994 (4) SA 85 (W) STEGMANN J made an exhaustive review of case law relating to notices of appeal from the Magistrates Court in South Africa. That case is authority for the proposition, based on the Magistrates Court Rules of South Africa, that there are two distinct requirements, both of which have to be satisfied, for a proper notice of appeal disclosing a valid ground of appeal;

(i) Firstly, the notice must specify details of what is appealed against (i.e. the particular findings of fact and rulings of law that are to be criticized on appeal as being wrong); and

(ii) Secondly, the grounds of appeal (i.e. it must indicate why each finding of fact or ruling of law that is to be criticised as wrong is said to be wrong. For example, because the finding of fact appealed against is inconsistent with some documentary evidence that shows to the contrary; or because it is inconsistent with the oral evidence of one or more witnesses; or because it is against the probabilities.

In Fraderick Chimaiwache v The State SC18-13, GOWORA JA made the following pertinent remarks…,:-

“It seems that the rider contained in those authorities is still not being heeded by those who practice law in this jurisdiction. A notice of appeal must contain grounds that are clear and specific. If a ground of appeal is general, then it cannot be a valid ground of appeal…,.”

In Econet Wireless (Pvt) Ltd v Trustco Mobile (Proprietary) Ltd (2) Trusto Group International (Proprietary) Ltd), SC43-13, I had occasion to cite, with approval, the remarks of KORSAH JA in The Master of the High Court v Lilian Grace Turner SC77-93 that:

“…, by concise is meant brief but comprehensive in expression…,.”

In John Chikura N.O. & Anor v Al Shams Global BVI Limited SC17-17, the notice of appeal filed with this court spanned eleven pages. Of those pages, six comprised eighteen grounds of appeal. The judgment appealed against consisted of eleven pages. In holding that the grounds of appeal were unnecessarily long, incoherent and prolix, this court, after quoting the remarks of LEACH J in Songono v Minister of Law and Order 1996 (4) SA 384 (Eastern Cape Division), struck the matter of the roll, remarking, at pages 3-4 of the cyclostyled judgment:

“It is not for the court to sift through numerous grounds of appeal in search of a possible valid ground; or to page through several pages of 'grounds of appeal' in order to determine the real issues for determination by the court. The real issues for determination should be immediately ascertainable on perusal of the grounds of appeal…,. The grounds of appeal are multiple, attack every line of reasoning of the learned judge and do not clearly and concisely define the issues which are to be determined by this court…,.”

I have quoted the above remarks made by eminent judges, both in this jurisdiction and South Africa, in order to stress, once again, the need for legal practitioners to pay due regard to the requirement that grounds of appeal must be clear and concise and what the term “clear and concise” signifies. Sadly, as the facts of this case, and many others, show, most legal practitioners still do not know how to properly formulate grounds of appeal that comply with the Rules of this Court. 

I now turn to the grounds of appeal noted in the present case.

THE GROUNDS OF APPEAL

There can be little doubt that, in general, the grounds of appeal noted in this case, are vague in nature and cannot be said to be clear and concise. In some instances, the grounds purport to go outside the Stated Case, and, in other instances, attempt to impugn the final decision made by this court in terms of which the appellant was ordered to return all the church assets to the respondent.

A short examination of each of the grounds is called for.

Ground 1 is couched; “The learned judge erred in dismissing the appellant's version in its totality.”

This is obviously meaningless. Neither this court, nor the respondent, would have any idea what it is that the appellant is attacking.

Ground 2 is also meaningless. It states; “The appellant, together with the other trustees, purchased the shares and later invested them. The appellant never lost control of the shares and other assets, both movable and immovable.”

This ground is more of a statement of fact and its meaning is anybody's guess. It begs the question: so what?

The third ground is equally vague. One does not know what point the appellant seeks to make. That ground reads:

“The court erred in failing to appreciate that the issue which was determined by the Supreme Court was between the Diocesan Trustees for the Diocese of Harare against the Church of the Province of Central Africa and that it was not between the appellant and the Church of the Province of Central Africa.”

Grounds 4, 5, 7, 8 and 9 and 11 all raise the same issue, namely, that, pursuant to the order by HLATSHWAYO J and CHIDYAUSIKU CJ, the appellant had the right to use the church assets and that in doing so, he sold some of the assets in order to maintain and preserve the remaining assets.

Ground 10 is vague, especially when one has regard to the remarks by the court a quo at page 8 of the cyclostyled judgment that;

“The timing of the sale of the shares, after August 2011, may point to a design to make something out of the property of the plaintiff before the definitive Supreme Court determination of the dispute; that is the furthest I am prepared to go. I am not persuaded that it is enough to attract the application of the value at the time of judgment.”

Grounds 13, 14 and 15 all deal with the same aspect, namely, that the court a quo was wrong in failing to find that the value of the shares was US$270,000= i.e. the price at which they were sold.

Ground 16 seeks to attack the interpretation of paragraph 8 of the Stated Case, and, in particular, whether the parties were agreed on the three values itemised therein.

Having found that some of the grounds are lacking in precision, it becomes necessary to determine the fate of the other grounds that sufficiently identify the basis upon which the judgment of the court a quo is impugned.

The approach adopted by this court in S v Ncube 1990 (2) ZLR 303 (SC), and other cases, is that where a court is faced by some grounds of appeal that are not clear and concise and by others that are, the court should proceed to determine the appeal on the basis of the valid grounds of appeal.

In that case, this court cited with approval remarks in R v Emerson 1957 R & N 743 (SR) that where the only ground in the notice of appeal is vague, then the appeal is a nullity.

The case of Songono v Minister of Law and Order 1996 (4) SA 384 (Eastern Cape Division), cited with approval by this court in the recent decision in John Chikura N.O. & Anor v Al Shams Global BVI Limited SC17-17, is authority for the proposition that grounds of appeal that are prolix do not comply with the Rules of this Court. The word prolix derives from the Latin word “prolixus”, which means extended or copious. A speech or writing is said to be prolix if it contains too many words or is tideously lengthy. It connotes unreasonable and tideous dwelling on detail. It also means long winded; verbose; rambling. It follows from this definition that grounds of appeal that are prolix cannot be clear or concise and are therefore a nullity.

I agree with the remarks in John Chikura N.O. & Anor v Al Shams Global BVI Limited SC17-17 that where grounds of appeal are prolix, it is not for this court to sift through numerous words in search of a possible valid ground.

In my view, however, where, in the same notice of appeal, there are grounds that are prolix and there are others that are clear and concise, then such appeal cannot be said to be fatally defective in its entirety. In these circumstances, the appeal would fall to be determined on the grounds that are found to comply with the Rules.

THE NOTICE OF APPEAL SEEKS TO IMPUGN THE WHOLE JUDGMENT

In his prayer, the appellant seeks an order, inter alia, that the judgment of the court a quo be set aside and in its place, an order made dismissing, with costs, the plaintiff's claim.

The respondent has taken the point that the prayer cannot be correct as the appellant was only one of five persons against whom judgment was entered in the court a quo. The judgment entered against the other four defendants was a default judgment - all of them having failed to attend the trial proceedings.

I agree with the respondent that the appellant cannot competently appeal against the whole judgment as he purported to do. He could only appeal against that part of the judgment that affected him.

The question however arises. Does the intimation that the appeal is against the whole judgment when in fact it is only against part of the judgment invalidate the appeal?

My view is that, in the particular circumstances of this case, it does not.

The point is however made that it is trite that the grounds of appeal should be precise and crisp.

The heads of argument in these matters also deserve comment.

Counsel for the respondent…, raised a point in limine that the appellants' notice and grounds of appeal did not meet the requirements of Rule 22(1) of the Supreme Court (Magistrates Court) (Criminal Appeals) Rules 1979.

He submitted that the notice and grounds of appeal were vague, and did not set out clearly and specifically the grounds of the appeal. He referred us to the case of S v Thomas Madeyi HH34-13.

Counsel for the appellants conceded that the notice and grounds of appeal indeed did not comply with the Rules and that they leave a lot to desired.

This is an application for leave to appeal pursuant to the provisions of section 61(b) of the Magistrates' Court Act [Chapter 7:10].

The application is opposed on the grounds, inter alia, that the application for leave to appeal is well out of time. The judgment which is the subject of this application was delivered on 11 October 2013. This application is being brought more than two years later. The application is hopelessly out of time. There has been no attempt by the applicant to seek condonation for the late filing of the application for leave to appeal. There is no explanation why the application was not made timeously.

Background

The respondent appeared before a Regional Magistrate at Bulawayo on a charge of rape. The respondent was found not guilty and acquitted. It would appear that the applicant was not satisfied with the outcome of the criminal proceedings hence the intention to appeal. The grounds of appeal, as set out in the draft notice of appeal, are as follows:

“Grounds of appeal

1. The court erred in believing that the complainant's evidence was not credible.

1.1. The learned magistrate erred in relying on the delay in making the report as a reason why the complainant's evidence should not be believed.

1.2 The learned magistrate erred in attaching too much weight to the fact that threats were not made to the complainant by the respondent as a ground for casting doubt on his guilt.

1.3 The learned magistrate erred in attaching too much weight on the fact that the complainant went back to the respondent's home after the first offence and continued playing there after the second offence.

2. The learned magistrate misdirected herself by taking judicial notice of the alleged feud that existed between the two families as a ground for casting doubt on the guilt of the accused when the evidence before the court proved that such feud did not exist.”

It is clear that the applicant does not intend to appeal against the decision of the trial court on a point of law. Section 61(b) of the Magistrate's Court Act [Chapter 7:10] provides as follows:

“If the Prosecutor General is dissatisfied with the judgment of the court in a criminal matter –

(a) Upon a point of law; or

(b) Because it has acquitted or quashed the conviction of any person who was the accused in the case on a view of the facts which could not be reasonably entertained;

he may, with the leave of a judge of the High Court, appeal to the High Court against that judgment.”

The respondent contends that there has been an inordinate delay in the bringing of this application. Further, and more importantly, there has been no explanation for the delay in instituting this application.

It is trite that there is no set time limit for the filing of an application for leave to appeal. Such an application, in my view, should be brought within a reasonable time.

See Attorney General v Lafleur & Another 1998 (1) ZLR 520 (H) and Prosecutor General v Beatrice Mtetwa & Anor HH82-16.

The overriding principle to be applied in such cases is that there is need for finality in litigation. The respondent is entitled to a fair hearing as enshrined in section 69 of the Constitution of Zimbabwe (No.20 of 2013), which provides as follows:

“69. Right to a fair hearing

(1) Every person accused of an offence has the right to a fair and public trial within a reasonable time before an independent and impartial court.

(2) In the determination of civil rights and obligations, every person has a right to a fair, speedy and public hearing within a reasonable time before an independent and impartial court, tribunal or other forum established by law…,.”

As clearly stated by MAWADZE J in Prosecutor General v Beatrice Mtetwa & Anor HH82-16…,:

“…, it should be made abundantly clear to the Prosecutor General that the Prosecutor General is not at liberty to come to this court any time the Prosecutor General so wishes and seek leave to appeal. Such conduct should be frowned upon by this court and ought to be admonished without any hesitation by dismissing such an application for leave to appeal.”

The remarks by MAWADZE J apply with equal force in this matter. I cannot comprehend why it has taken the applicant more than two years to realize that there is need to appeal against a judgment delivered in October 2013.

I make a specific finding that this application is not properly before the court for the reason that there is no application for the late filing of the application for leave to appeal. In any event, a cursory look at the grounds of appeal in the draft grounds of appeal reveals that this attempt to appeal is nothing more than a fishing expedition.

The proposed grounds of appeal reflect a general criticism of the findings of the trial court on issues of credibility. The grounds of appeal do not disclose a fundamental misdirection in the manner in which the trial magistrate examined the evidence or handled the case. Findings of fact are traditionally the domain of the trial court.

In the circumstances, I would uphold the point in limine taken by the respondent in that there has been an inordinate and unexplained delay in bringing this application. There is therefore no need for me to go into the merits of this application. Accordingly, it is ordered that:

The application for leave to appeal be and is hereby dismissed with costs.

This is an application for leave to appeal against the first respondent's acquittal by the second respondent at the close of the State case.

The applicant is the Prosecutor General of Zimbabwe. The first respondent is a well-known legal practitioner. The second respondent is a magistrate employed by the Judicial Service Commission and is based at Harare Magistrates Court. The second respondent is cited nominus officiae.

The first respondent was arraigned before the second respondent facing a charge of contravening section 184(1)(g) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] which relates to defeating or obstructing the course of justice by resisting, hindering or disturbing a police officer in the execution of his or her duties knowing that the police officer is a police officer exercising or executing his or her duties or realising that there is a real risk or possibility that the police officer may be a police officer executing his or her duties….,.

The first respondent was arrested on 17 March 2013 and granted bail pending trial by this court on 25 March 2013. She was then arraigned before the second respondent on 10 June 2013 and acquitted on 26 November 2013.

The charge preferred against the first respondent is that on 17 March 2013, at Number 2023, Area D, Westgate, Harare the first respondent, well-knowing that Chief Superintendent Luckson Mukazhi, Detective Assistant Inspector Wilfred Chibage and Detective Constable Ngatirwe Mamiza were police officers in the execution of their duties carrying out searches at the said premises as well as Number 14 Bath Road, Belgravia, Harare, as per the search warrant, unlawfully disturbed, resisted or hindered the said police officers by shouting the following words;

“Stop whatever you are doing, its unconstitutional, illegal, undemocratic. You are confused cockroaches. You are Mugabe's dogs” in order to refrain them from conducting the search and that she proceeded to take photographs and/or videos threatening to send such photographs or videos to the international media. It is also alleged that the first respondent closed the gate at Number 2023, Area D, Westgate, Harare in order to prevent the said police officers from leaving the premises with some recovered documents and that this delayed the search at Number 14 Bath Road, Belgravia resulting in the removal of four central processing units and 3 computer monitors from the said premises which the police wanted to recover.

A summary of the allegations against the first respondent are as follows;

On 17 March 2013, police officers were at Number 2023, Area D, Westgate, Harare, owned by Tabani Mpofu, armed with a search warrant to search the premises. The police officers were investigating a case of possessing articles for criminal use as defined in section 40 of the Criminal Code [Chapter 9:23]. It is alleged that the police officers, after searching the house, proceeded to search Tabani Mpofu's five motor vehicles in the yard and that the first respondent arrived.

The first respondent is said to have uttered the words referred to earlier on without identifying herself and that as a result the police officers stopped the search and proceeded to show the first respondent the search warrant. Instead, the first respondent is said to have proceeded to take photographs or videos using her cellphone and thus hindered or disturbed the police officers in carrying out their duties moreso as this caused a number of people to gather at the scene. It is further alleged that the first respondent closed the gate at the premises in order to stop Detective Assistant Inspector Chibage from leaving the premises with some recovered documents. At that stage, Chief Supritendent Mukazhi proceeded to arrest the first respondent and tried to take her cellphone but the first respondent hid it in her bra and proceeded to delete the photographs and videos after which she handed over the cellphone. It is also alleged that the police officers were delayed to proceed to Number 14 Bath Road, Belgravia, Harare where they wanted to conduct another search and that the first respondent, who was now under arrest, threatened to urinate or defecate in the police motor vehicle. The State alleges that this delay caused the removal of some computers at No 14 Bath Road, Belgravia, Harare.

The first respondent pleaded not guilty to the charge.

In her Defence Outline, the first respondent pointed out that both the charge sheet and the State Outline disclose no offence. In fact, that the first respondent said that she is the wronged party as she was arrested during the course and scope of her duties as a legal practitioner. The first respondent berated the police officers for failing to hand over or show her the search warrant. She further denied uttering the words alleged and pointed out that even if she had uttered such alleged words that would not constitute an offence. In fact, the first respondent said the alleged words were never put to her in her warned and cautioned statement and that this is simply an after-thought on the part of the police.

The first respondent's version of events, as per her Defence Ooutline, is that she received a distress text message from Tabani Mpofu and that Tabani Mpofu's relative led her to the said premises in Westgate. Upon her arrival she said the police had completed the search and that no search warrant was shown to Tabani Mpofu hence she asked one of the police officers leaving the premises with a big bag to show her the search warrant but the police officer said he would avail it at the police station together with the inventory of items seized. At that stage, the first respondent said one of the police officers started to reverse Tabani Mpofu's motor vehicle and the other police officer falsely alleged that she was taking photographs or videos and demanded that she hands over her cellphone but she refused and put her cellphone in her hand bag as the police officer tried to forcefully take it.

The first respondent said it is at that stage that she was told that she was under arrest and was lodged at the back of the police truck after which she was driven to Number 14 Bath Road, Belgravia where she still remained in the police motor vehicle when another group of police officers arrived. The first respondent said it is at that stage that she was handcuffed and her handbag was forcibly searched. She was later taken to the police station and that both the search warrant and the said inventory were not shown to her.

The first respondent pointed out that she is not a Shona-speaking person hence the words attributed to her are false and were not even part of the Request For Remand Form 242.

The first respondent stated that her arrest and subsequent prosecution is purely malicious because after her arrest the police decided to interrogate other matters irrelevant to this case by visiting the High Court to check her registration papers and visiting her former husband. The first respondent said her service provider would show that no photographs or video footage was taken using her cellphone. She said she would call Tabani Mpofu, his wife, and one Alex Magaisa, the relative who took her to Tabani Mpofu's residence. All in all, the first respondent denies hindering police in their work. She reiterated that when she got to Tabani Mpofu's residence the police had completed the search. The first respondent is of the view that it is, in fact, the police who hindered her from carrying out her duties as a legal practitioner.

The State led evidence from three witnesses who are Chief Superintendent Mukazhi, Detective Assistant Inspector Chibage and Detective Constable Ngatirwe Mamiza.

At the close of the State case, the first respondent successfully applied for her discharge in terms of section 193(3) of the Criminal Procedure and Evidence Act [Chapter 9:07]. It is this decision by the second respondent which has irked the applicant hence this application for leave to appeal.

In the proposed grounds of appeal, the applicant insists that the evidence led by the State shows that the respondent closed the gate of Tabani Mpofu's residence thus hindering and disturbing the police from taking exhibits. The applicant also insists that the evidence led by the State shows that the first respondent uttered the alleged words and that the uttered words indeed hindered and disturbed the police in the execution of their duties.

The first respondent has raised three points in limine which I need to deal with before I even address the merits of this application. The three points in limine are as follows;

1. That there is no proper application before this court as the applicant has brought this application for leave to appeal in terms of section 61 of the Magistrates Court Act [Chapter 7:10] instead of section 198(4) of the Criminal Procedure and Evidence Act [Chapter 9:07].

2. That this application for leave to appeal is invalid as the founding affidavit by one Mr Mapfuwa is irregular and was improperly commissioned by an officer of the Zimbabwe Republic Police (ZRP) an institution that has a substantial interest in this matter.

3. That there has been an inordinate and unexplained delay in mounting this application for leave to appeal thus warranting its dismissal with costs on a higher scale.

I now deal with the three points in limine seratium.

1. Citation of section 61 of the Magistrates Court Act [Chapter 7:10] instead of section 198(4) of the Criminal Procedure and Evidence Act [Chapter 9:07]

Counsel for the applicant, in his submissions, conceded that the applicant should have sought leave to appeal in terms of section 198(4) of the Criminal Procedure and Evidence Act [Chapter 9:07] instead of section 61 of the Magistrate's Court Act [Chapter 7:10]. The provisions of section 198(3) and section 198(4) of the Criminal Procedure and Evidence Act [Chapter 9:07] are as follows;

“198(3) If, at the close of the State case for the prosecution, the court considers that there is no evidence that the accused committed the offence charged in the indictment, summons or charge, or any other offence of which he might be convicted thereon, it shall return a verdict of not guilty.

(4) If the Attorney General (read Prosecutor General) is dissatisfied with a decision –

(a)….,.

(b) Of a magistrate, in terms of subsection (3) he may with the leave of a judge of the High Court, appeal against the decision to the High Court.”…,.

The provisions of section 198(3) and section 198(4) of the Criminal Procedure and Evidence Act [Chapter 9:07] have been interpreted in a number of cases. See Attorney General v Bennet 2011 (1) ZLR 369 (S); Attorney General v Bvuma & Anor 1998 (2) ZLR 96 (S); Attorney General v Tarwirei 1997 (1) ZLR 575 (S); Attorney General v Mzizi 1991 (2) ZLR 321.

The provisions of section 61 of the Magistrates Court Act [Chapter 7:10] are as follows;

“61 Prosecutor General may appeal to High Court on a point of law or against acquittal.

If the Prosecutor General is dissatisfied with the judgment of a Court in a criminal matter –

(a) Upon a point of law; or

(b) Because it has acquitted or quashed the conviction of any person who was the accused in the case on a view of the facts which could not reasonably be entertained;

he may, with the leave of a judge of the High Court, appeal to the High Court against that judgment.”

Counsel for the applicant, in my view, correctly conceded that an application for leave to appeal in terms of section 61 of the Magistrates Court Act [Chapter 7:10] relates to a judgment which envisages a situation where all the proceedings are terminated or a full trial has been completed rather than a discharge at the close of the State case. Counsel for the applicant, however, submitted that this error by the applicant is not fatal to this application for basically two reasons;

(i) The first reason advanced by counsel for the applicant is that the standard of proof or the applicable principles to be considered in relation to section 198(4) of the Criminal Procedure and Evidence Act [Chapter 9:07] are the same as those applicable in terms of section 61 of the Magistrate's Court Act [Chapter 7:10].

(ii) The second reason, in his view, is that the citation of the wrong provision of the law is not prejudicial to the first respondent.

I do not share the same views with counsel for the applicant.

There is a clear legal distinction between section 61 of the Magistrates Court Act [Chapter 7:10] and section 198(4) of the Criminal Procedure and Evidence Act [Chapter 9:07]. This is precisely why the first respondent, in her opposing papers, raised this objection. The applicant, in its wisdom or lack thereof, did not seek to amend their papers or at least to make such an application at the commencement of the hearing of the application.

In my view, the use or citation of the wrong provision by the Prosecutor General, who is expected to be well-informed in terms of the law, is not an issue which can simply be overlooked by this court or wished away. It is clear that section 61 of the Magistrates Court Act [Chapter 7:10] arises at the conclusion of the trial whereas section 198(4) of Criminal Procedure and Evidence Act [Chapter 9:07] applies during the course of the trial at the close of the State case.

I am surprised that despite this concession by the applicant there was no attempt by the applicant to seek condonation. The attitude by the applicant seems to be that I should grant such condonation mero muto. However, such a glaring failure by the applicant to cite the correct provision of the law cannot be said to be inconsequential or condoned mero motu. The first respondent is entitled to know in terms of which provision the applicant has applied for leave to appeal as this will inform her response. As already said, no application for condonation has been made.

I therefore find merit in the first respondent's protestation in this regard and would uphold the point in limine….,.

3. Delay in Bringing This Application

The first respondent was acquitted by the trial court on 26 November 2013 and it is common cause that full reasons for the acquittal were availed to all the parties concerned on the same day.

The applicant filed this application for leave to appeal on 29 April 2014 - after a period in excess of 5 months. According to counsel for the applicant, the full transcript of record of proceedings became available on 27 February 2014. Thereafter, it took the applicant two months to file this application.

The first respondent contends that there has been an inordinate and unexplained delay in bringing this application and that this is prejudicial to the first respondent. The first respondent submitted that this conduct by the applicant ought to be admonished by an order of dismissal of the application with costs on a higher scale.

It is not in issue that there is no time limit prescribed in section 198(4) of the Criminal Procedure and Evidence Act [Chapter 9:07] within which an application to seek leave to appeal should be made by the Prosecutor General. It is, however, trite that such an application should be made within a reasonable time or period. See Attorney General v Lafleur & Anor 1998 (1) ZLR 520 (H); Attorney General v Bvuma & Anor 1998 (2) ZLR 96 (S).

In my view, the overriding reason for this principle is the need for finality in litigation and to ensure that the interests of justice are safeguarded.

The right to a fair hearing is enshrined in section 69 of our Constitution and this court has the uttermost duty to protect that right. It is couched as follows;

“69. Right to a fair hearing

(1) Every person accused of an offence has a right to a fair and public trial within a reasonable time before an independent and impartial court.

(2) In the determination of civil rights and obligations, every person has a right to a fair, speedy and public hearing within a reasonable time before an independent and impartial court, tribunal or other forum established by law”…,.

In my view, what constitutes reasonable time is a matter of fact and depends on the circumstances of each case.

Mr Mapfuwa, in his answering affidavit, conceded that there was indeed a delay in bringing this application but attributes this delay to the need to have the record of proceedings transcribed. He said this is not a process directly controlled by the applicant. In his submissions, counsel for the applicant said he had no explanation to make as to why, after the transcript of the record was availed on 27 February 2014, it took the applicant two months to file this application on 29 April 2014.

There is no meaningful explanation by the applicant for the delay in making this application other than to try and blame those responsible for the transcription of the record. This is difficult to appreciate in view of the fact that the reasons for the discharge of the first respondent at the close of the State case were availed immediately to the two trial prosecutors. I have no doubt in my mind that the time taken to approach this court is inordinate and that there was great need for the applicant to fully explain this delay of five (5) months in view of the facts of this case. While I appreciate that there is not timeframe in the relevant provision to bring this application it should be noted that this is not a blank cheque availed to the Prosecutor General to bring such an application at any time.

I wish to clearly point out that such a delay should always be juxtaposed with the rights of an accused person who would have been acquitted by a competent court. Such an accused person would have gone home to celebrate with family and friends only to be told and advised some odd five (5) months later that the celebration is premature and that the battle has just began. The inference one can therefore draw is that such conduct ceases to be prosecution but persecution as such delay is not only unreasonable and prejudicial to an accused person but flies in the face of the provisions of section 69 of the Constitution.

I have no doubt in my mind, after considering the facts of this case, that it should be made abundantly clear to the Prosecutor General that the Prosecutor General is not at liberty to come to this court any time the Prosecutor General so wishes and seek leave to appeal. Such conduct should be frowned upon by this court and ought to be admonished without any hesitation by dismissing such an application for leave to appeal.

It is therefore my finding that there has been an inordinate and unexplained delay in bringing this application. I would therefore uphold the point in limine taken by the first respondent.

Since I have upheld two of the three points in limine raised by the first respondent it is now unnecessary for me to go into the merits of this application. I am not persuaded that this is a proper case for which I should award costs against the applicant on a higher scale. Accordingly, it is ordered that;

The application for leave to appeal be and is hereby dismissed with costs.

The court experienced some considerable difficulty in its effort to arrive at what it considered to be in the best interests of the appellants. The difficulty was occasioned by the fact that counsel for the appellants and the respondent, cited, in their respective Heads of Arguments, case authorities which referred to such generally known and accepted principles as the following:

(a) First offenders should, as much as possible, be kept out of prison;

(b)…, it is generally accepted that imprisonment is a severe punishment which should be considered as a last resort;

(c) The court a quo erred in imposing a custodial sentence on youthful offenders, etc.

The court mentions, for the benefit of the parties, that where the latter's aim and object are to persuade a superior court to interfere with the sentencing discretion of the lower court, the parties, the appellant in particular, must make every effort to argue their case in a logical sequence supporting it with relevant case authorities which compare favourably with the case which they place before the court for consideration. It is of little, if any, use for a party who takes up a matter on appeal especially against sentence to just state some well-known and accepted principle of law, as the appellants did in casu, and leave it to the court to make up its mind on whether or not to interfere with the sentence which the court a quo will have imposed. It is, therefore, pertinent that legal practitioners who appear for an appellant do examine decided case authorities which have facts which are more or less similar to the cases they are arguing and persuade the court to consider the appeal in terms of such case authorities.

What is urged the appellant to do equally applies to the respondent.

The respondent appeared before a magistrate at Plumtree facing allegations of contravening section 3(1)(a) of the Gold Trade Act [Chapter 21:03], being in possession of gold without a licence and violating section 182(2) of the Customs and Excise Act [Chapter 23:02], smuggling. The respondent was acquitted on both counts.

The applicant has filed an application for leave to appeal in terms of section 61(b) of the Magistrates' Court Act [Chapter 7:10].

The relevant provision of the Magistrates' Court Act stipulates as follows:

“61. If the Prosecutor-General is dissatisfied with the judgment of a court in a criminal matter –

(a) Upon a point of law; or

(b) Because it has acquitted or quashed the conviction of any person who was the accused in the case on a view of the facts which could not be reasonably entertained, he may, with the leave of a judge of the High Court, appeal to the High Court against that judgment.”

The applicant has filed a draft notice of appeal and the grounds of appeal are stated as follows:

“1. The court a quo erred when he misconstrued the law in rejecting the evidence of the State witnesses in toto.

2. The court a quo erred when it acquitted the respondent on facts which could not be reasonably entertained, the motor vehicle from which the gold was recovered was in the respondent's name.

3. The court a quo erred by disregarding the fact that at the time of his arrest respondent did not mention or implicate his defence witness as the owner of the gold but only made mention of his co-accused at the main trial who was subsequently acquitted at the close of the State case due to insufficient evidence.

4. The court a quo erred in believing the testimony of Mabusa Chachaya who alleged to be the one who had concealed the gold in the wiper compartment of the car.

5. Ultimately, the learned magistrate erred at law by finding respondent not guilty and acquitted him when there was overwhelming evidence against respondent.”

I observe that the respondent was acquitted by the Plumtree Magistrates' Court on the 2^nd of February 2016. This application is being brought almost 6 months after the judgment. No explanation has been given for the delay in the late application for leave to appeal. Although there is no time specified within which such an application should be filed from the date of judgment, it is trite law that such application should be brought within a reasonable time. Where there is an inordinate delay, the application should be filed with an application for the condonation for the late noting of an application for leave to appeal. Only when such leave has been granted can the application be properly argued in court. It is not in the interests of justice, and indeed of the respondent, to file an application for leave to appeal which, on face value, is simply meant to buy time and to frustrate the order of the trial magistrate ordering the release of the exhibits held by the Minerals and Border Control Unit.

It is my view, that the office of the Prosecutor General should be reminded that they cannot simply walk into court at any time and do as they please. In my mind, that smacks of an attitude that the applicants can bring any application at any time and at their pleasure. That attitude cannot be accepted. The respondent expects to be treated fairly and at any rate there must be finality to any proceedings.

I have taken a close look at the proposed grounds of appeal and it is clear that the applicant does not set out clearly whether there are any points of law being raised, but, rather, there are general grounds criticizing the manner in which the trial court assessed the evidence. There is nothing to suggest that the decision reached by the trial court constitutes a view of the facts which could not be reasonably entertained. The applicant should establish that the inference drawn from the primary facts is so inconsistent with logic and common sense that the judgment is perverse. It is not enough to state that the trial court made mistakes in the evaluation of the evidence or that he should have treated the assessment of the evidence in a particular manner.

In the case of Attorney-General v Paweni Trade Corp (Pvt) Ltd 1990 (1) ZLR 24 (S) KORSAH JA…, held that:

“It is only when the inference drawn from the primary facts is so inconsistent with logic and common sense that the Attorney-General can succeed…,. If there are reasonable grounds for taking certain facts into consideration, and all the facts, when taken together, point inexorably to the guilt of the accused beyond pre-adventure, but the trial court nonetheless acquits the accused, then the trial court has taken a view of the facts which could not be reasonably be entertained. Put in another way, if, on a view of the facts, the court could not reasonably have inferred the innocence of the accused, then the verdict of acquittal is perverse, and the Attorney-General is entitled to attack it.”

See also the remarks in Attorney-General v Lafleur and Another 1998 (1) ZLR 520 (H).

In the more recent cases of Prosecutor General v Beatrice Mtetwa and Another HH82-16 and Prosecutor General of Zimbabwe v Tendai Chinembiri HB125-16, this court did emphasize the importance of filing an application for leave to appeal timeously. In both cases, the court ruled that the Prosecutor General must not take the court for granted. In my view, although no time limit is laid down for bringing an application in terms of section 61 of the Magistrate's Court Act, it is clear that this drastic power to appeal against an acquittal must be exercised reasonably and in the interests of justice and therefore such application should be filed without delay.

In the result, I am not satisfied that the applicant has discharged the onus on him to establish that this case falls within the ambit of the provisions of section 61 of the Magistrates' Court Act [Chapter 7:10]. Further, I do not consider it in the interests of justice that the applicant should be allowed to proceed with this appeal.

I would accordingly dismiss the application for leave to appeal.

In the Magistrates' Courts accused persons are not denied access to court records where they will be applying for review or appealing.

Rules 34 and 39 of the Supreme Court (Magistrates Courts) (Criminal Appeals) Rules 1979, govern the noting of appeals against sentences. They provide as follows;

“APPEAL AGAINST SENTENCE BY CONVICTED PERSON WHO IS LEGALLY REPRESENTED

33…,.

34. Noting of appeal

(1) The appellant shall, within five days of the passing of sentence, note his appeal by lodging with the Clerk of the Court a notice in duplicate setting out clearly and specifically the grounds of the appeal and giving for the purpose of service the address of his legal representative or, if a legal representative has yet to be appointed, the address of the appellant:”

On the other hand, Rule 39 says –

''APPEAL AGAINST SENTENCE BY CONVICTED PERSON IN PERSON

38…,.

39. Noting of appeal

The appellant shall, within five days of the passing of sentence, note his appeal by lodging with the Clerk of the Court a notice in duplicate -

(a) Setting out, clearly and specifically, the grounds of the appeal and giving for the purpose of service the address of the convicted person; and

(b) Stating that the appellant intends to prosecute the appeal in person.”

In his Notice of Appeal to this court, the appellant listed twelve grounds. At the hearing, counsel for the appellant conceded that they were repetitive and proliferate. He collapsed them into one single essence….,.

On the first day of the hearing of the appeal, counsel for the appellant sprang a surprise and practically forced an indefinite adjournment. He explained that following his attendance at some recent workshop on continual legal education, at which the Chief Justice of Zimbabwe had raised concerns about some criminal matters going all the way to the Supreme Court with notable patent defects in the charges, he had reviewed the entire record of the appellant's case, including the charge sheet, and grounds of appeal, and had discovered that the charge laid against the appellant had been fatally defective for want of averments of the essential elements of the crime. He said this was a legal point which he was entitled to raise at any time of the proceedings….,.

Counsel for the State said the applicant's amended grounds of appeal were improper because they were not a mere amendment, but rather a completely new ground of appeal. He said to “amend” is to make minor improvements to a document or proposal. He argued that what the applicant had purported to do was to make wholesome changes to his original notice of appeal to bring in a completely new ground.

The applicant's amended grounds of appeal, filed of record a day before the second bail application was launched, read as follows:

“TAKE NOTICE that appellant applies to amend the grounds of appeal contained in the notice and grounds of appeal filed on the 21^st of April 2015 by adding to the grounds appearing in the said notice.”…,.

I find that “add” is a synonym of “amend”. Other synonyms are, “alter”, “adjust”, “modify”, “revise”, “change”, “improve”, “correct”, etc.

The applicant was not substituting a new ground of appeal in place of the old ones as implied by the State. In his application, and throughout the hearing, he stressed that he still stood by his old grounds of appeal and implored the court to reconsider his prospects of success in the light of the additional ground of appeal which he felt lent a different complexion altogether to his situation….,.

The applicant was bringing…, a new point, which, in my view, was both a point of fact and a point of law.

In its objection, the State relied on section 6 of the Supreme Court (Magistrates Courts)(Criminal Appeals) Rules. That provision reads:

“6. Amendment of notice of appeal

(1) The Attorney-General or an appellant…, may amend his notice of appeal by lodging a notice in duplicate with the Registrar setting out clearly and specifically the amendment to the grounds of appeal -

(a) In the case of an appeal against conviction or conviction and sentence, as soon as possible and in any event not later than twenty days after the noting of an appeal;

(b) In the case of an appeal against sentence only, as soon as possible and in any event not later than ten days after the noting of the appeal.

(2) A copy of the notice of appeal lodged in terms of subrule (1) shall, at the same time as the lodging of such notice, be served on the other party to the appeal.

(3) An amendment to a notice of appeal in terms of subrule (1) shall not delay the preparation and lodging with the Registrar of the record of the case to which the appeal relates.”

Counsel for the State's major concern was the potential violation of the time limits as set out in section 6 above. Counsel for the applicant countered by invoking section 5 of the same Rules. It reads:

“5. Departure from the Rules

A judge of the Supreme Court or the High Court, or the Supreme Court of (sic) the High Court, may direct a departure from these rules in any way where this is required in the interests of justice, and, additionally or alternatively, may give such directions on matters of practice or procedure as may appear to him to be just and expedient.”…,.

Section 6 of the Supreme Court (Magistrates Courts)(Criminal Appeals) Rules (the Appeals Regulations) does not distinguish between a substantial or wholesome amendment from a minor amendment....,.

I felt I did not have to concern myself too seriously with whether the applicant's amended grounds of appeal were proper or not, or whether I could grant condonation or not. For me, those were aspects for determination by the appeal judges.

Before me was a second application for bail pending appeal based on alleged changed circumstances.

The appellants were charged, tried and convicted in the Magistrates Court of one count each of Criminal Abuse of Duty as defined in section 174(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]….,.

At the time when the offences were allegedly committed, the first appellant was employed by Air Zimbabwe Holdings (Pvt) Ltd as the Group Chief Executive and the second appellant was employed as the Company Secretary and Legal Manager. It was alleged, by the State, that the appellants, whilst acting in concert, wrongfully and unlawfully appointed Navistar Insurance Brokers (Pvt) Ltd [hereinafter referred to as “Navistar”] without going to tender as is strictly required by law, and, thereby, showed favour to Navistar. The State alleged that the appellants conduct was inconsistent with their duties as public officers because it was required of them, as public officers, to have gone to tender to invite offers from other companies.

Section 174(1)(a) of the Criminal Law (Codification and Reform) Act reads:-

“174 Criminal abuse of duty as public officer

(1) If a public officer, in the exercise of his or her functions as such, intentionally -

(a) Does anything that is contrary to or inconsistent with his or her duties as a public officer; or

(b) Omits…,.

for the purpose of showing favour or disfavour to any person, he or she shall be guilty of criminal abuse of duty as a public officer and liable to a fine not exceeding level thirteen or imprisonment for period not exceeding fifteen years or both.”

For the sake of completeness, I mention that the appellants were charged, in the alternative, with having contravened section 30 of the Procurement Act [Chapter 22:14] as read with section 5(4)(a)(2) and section 35 of the Procurement Regulations [S.I. 171/2002] which deals with the appellants' statutory obligation to have gone to tender in specific circumstances, such as the circumstances of this matter. Because the appellants were convicted in the main, the alternative charge became immaterial.

The first appellant raised 19 grounds against conviction and 5 grounds against sentence in his initial notice of appeal which was filed with this court on 21 April 2015. The second appellant raised 7 grounds against conviction and 4 grounds against sentence in her initial notice of appeal which was filed on 16 April 2015.

On 1 September 2015, roughly five months after the initial notices of appeal were filed, the appellants both filed notices of amendments to their grounds of appeal. The first appellant announced his intention to add a further 4 grounds to his 19 initial grounds of appeal against conviction. The second appellant sought to add a further 3 grounds to her initial 7 grounds of appeal against conviction.

It is noteworthy to mention that the first and second appellants' proposed additional grounds were identical in all respects.

On the day of the appeal hearing, counsel for both appellants' got up to introduce their new notices of appeal and to move for their amendments to be adopted.

The respondent's counsel objected to the amendments being allowed to be introduced and raised four (4) reasons why his objection ought to be upheld;

1. The first point he raised in objection was that that both the appellant's grounds of appeal in their original notices of appeal were not in compliance with Rule 22 subrule 1 of the Supreme Court (Magistrates Courts) (Criminal Appeals) Rules S.I.504 of 1979.

2. The second point was that the first appellant's Heads of Argument are not compliant with Rule 238(1) of the High Court Rules, 1971 in that they are long-winded and convoluted and did not serve the purpose for which they were intended. The respondent's counsel suggested that the appellants ought to withdraw the appeal from the roll and ask for an extension of time within which to prepare proper heads of argument.

3. The third point was the amended grounds for both counsel were filed out of time and that neither of the appellants had made the requisite application for condonation. Further, he submitted that because both of the appellants' original notices of appeal grounds constitute a nullity and did not comply with the rules, the amended grounds could not be canvassed or relied upon.

4. The fourth point was that the appellants were estopped from raising the point of law which was being raised through the amendment, on the basis that it was being canvassed for the first time on appeal.

Whether there has been a lack of compliance with Rule 22(1) of the Rules

At the commencement of the hearing, the first appellant withdrew grounds 7, 9, 10, 11, 12, 13, 14, 16, 17 and 18 from his original notice of appeal against conviction. Thus, the first appellant retained grounds 1–6, 8 and 15 of the original notice of appeal. The first appellant's counsel submitted that the remaining grounds were in compliance with the Rules. Grounds 1 - 6, 8 and 15 read as follows:-….,.

“Grounds of Appeal (1^st appellant)

Ad conviction

1. The court a quo erred in fact and in law in convicting the appellant of abuse of duty as a public officer on the basis of the State having proved its case against him beyond any reasonable doubt yet the State had made a concession that it had not satisfied the burden of proof required in a criminal trial against the appellant and that it had no direct evidence linking the appellant to the offence but circumstantial evidence; which evidence was clearly not enough to satisfy the onus of proving its case against appellant beyond any reasonable doubt.

2. The trier of fact erred in fact and in law when it convicted the appellant on the basis of evidence of the co-accused person, Grace Pfumbidzai, whom it did not find to be a credible witness as she had given a plethora of mutually destructive defences to the charges. Thus, the court a quo erred in fact and at law in basing a conviction on inadmissible evidence of another accused's extra-curial statement without ensuring that the rules of admitting such evidence and ultimately relying upon it had been satisfied.

3. The trial court grossly misdirected itself in fact and at law when it convicted the appellant yet there was no nexus between the appellant and the essential elements of the offence, more particularly, that there was no evidence at all that the appellant individually, or in connivance with the other accused, intentionally and without going to tender appointed Navistar on the 18^th March 2009 as the Air Zimbabwe Holdings (Pvt) Limited's Local Aviation Insurance Brokers.

4. The court a quo erred at law and in fact in relying on evidence from witnesses who were not credible and whose evidence was materially conflicting and contradicting. The trial court relied on the evidence of one Nyakabau, a shopped witness, who gave contradictory evidence and whose evidence was clearly a recent fabrication as it materially contradicted Grace Pfumbidzayi's evidence in relation to how the alleged presentation and/or meeting involving Navistar, FBC and Coleman had been held or conducted.

5. The court a quo erred in fact and at law when it found that the appellant was involved in the appointment of Navistar on the 18^th March 2009 yet it found, as a matter of fact, that the appointment of Navistar was not an Executive Management decision and that Grace Pfumbidzayi had lied that Appellant had told her to appoint Navistar in the presence of one Norbert Machingauta. The Court in fact that appointment was done by Grace telephonically and confirmed by her letter of March 18, 2009.

6. The trier of fact erred in facts and at law when it inferred that the appellant, by writing, “Grace, for your relevant action' meant she had to process the appointment which 'inference' is not supported by any positive proved facts in that by the 21^st March 2009, Navistar had already been appointed and logically the appellant could not have retrospectively sanctioned the appointment of Navistar Insurance Brokers (Pvt) Ltd.

8. The trier of fact erred fundamentally in fact and at law in finding that as a matter of fact the Appellant had held a meeting attended by Marsh Insurers Brokers, ZIMRE and Grace Pfumbidzayi on or about the 17^th March 2009 yet there was no evidence led in Court showing that there was such a meeting held by the said parties prior to the 20^th March 2019. The court a quo erred in fact and at law in failing to appreciate that Exhibit 15, written by Sam Nyamhamba, clearly showed that the only meeting involving the four parties had been held on the 20^th March 2009 and not before that date as found by the trier of fact.

15. The trial Magistrate erred in fact and at law when she found that the Appellant was not credible witness yet his evidence was independently corroborated by other witnesses whom the court found to be credible and that other documentary exhibits relied upon by the court as well as that the Appellant had been very steadfast in his defence even in the face of intense cross examination.”

The grounds which remain and, which I have paraphrased above, consist of an attack on findings of fact rather than raising points of law as is required when taking a decision up on appeal. To that end they are fatally flawed.

The second appellant's notice of appeal is also fatally flawed.

Her notice of appeal is crafted in the format of Heads of Argument complete with references to case law as one would expect from Heads of Argument. Second, the appellant's original notice of appeal also fails to identify errors on points of law, but, instead, as is the case with the first appellant, in it, she makes numerous of attacks on the court a quo's findings of fact.

“GROUNDS OF APPEAL AGAINST CONVICTION (Second appellant)

1. The learned Magistrate misdirected herself at law by failing to adopt the correct judicial assessment of all the evidence adduced in the trial. See S v Tambo 2007 (2) ZLR 32 [H].

“The correct judicial assessment of evidence must be based on establishing proved facts whose proof must be a result of a careful analysis of all the evidence led.”

2. The learned magistrate misdirected herself at law when she concluded that Budhama Chikamhi, the auditor, was a credible witness and yet he stood to gain financially from testifying against the Appellant in the trial. See S v Tsvangirai 2004 (2) ZLR 210 (S).

3. The learned Magistrate misdirected herself on the facts when she concluded that Appellant was aware from mid-February 2009 that the airline's fleet was un-insured and yet unchallenged evidence from March Insurance Broker's Chief Executive, Mr Nyamhamba, was that both the broker and the insured only realised this fact on the 17^th March 2009 through a communication from Willis directed through Zimre, the re-insurer.

4. The learned Magistrate misdirected herself on the facts or law when she made a finding that the realization that the airline's fleet was un-insured by the 17^th March 2009 did not constitute a crisis or emergency and that was inconsistent to the evidence adduced by the prosecution.

5. The learned Magistrate erred or misdirected herself at law when she failed to appreciate that section 30(2) of the Procurement Act [Chapter 22:14] was meant to provide a safety valve to enable State procurement agencies to procure commodities expeditiously to the benefit of the State and the nation at large in times of dire need and emergencies as was the case herein without following the cumbersome time consuming normal tender procedure. See S v Mangoma 2011 (1) ZLR 617 [H].

6. In determining whether Appellant abused her office as a public officer, the learned magistrate erred or misdirected herself by omitting to consider the motive and surrounding circumstances behind the appointment of Navistar Insurance Brokers (Pvt) Ltd. See S v Mangoma 2011 (1) LR 617 (11)…,.

Thus, the essential element of showing favour to Navistar Insurance Brokers (Pvt) Ltd was not proved. Consequently, there was insufficient evidence to prove, beyond reasonable doubt, that the Appellant was guilty of the crime charged.

7. The learned Magistrate erred or misdirected herself at law by dismissing the Appellant's explanation that the appointment of Navistar Insurance Brokers (Pvt) Ltd was an act of necessity to avert operating an airline illegally/unlawfully due to lack of aviation insurance. See S v Mupatsi 2010 (1) lR 529 [H].

“No onus rests on an accused to convince the court of the truth of any explanation which he gives. If he gives an explanation, even if that explanation is improbable, the court is not entitled to convict unless it is satisfied that not only is the explanation is improbable, but beyond reasonable doubt it is false. If there is any reasonable possibility of his explanation being true, then he is entitled to his acquittal.”

Of the above grounds of appeal, it was only ground 5 which appears to be an attempt in raising a point of law. However, the ground is neither clear nor is it specific and when reading it one is left wondering what the cause for complaint is. It leaves the court without a clue as to the misdirection/s by the court a quo.

Thus, the second appellant's initial notice of appeal is fatally flawed.

That being the case, in respect of both the appellants, there were no appeals before the court on the hearing date.

Neither of the appellants sought condonation for the late filing of their amended grounds, and, on that basis alone, the notices of amendments themselves are not properly before the court.

The appellants submitted that it is competent to apply for condonation at the hearing of the matter.

However, the question is whether or not a fatally defective notice of appeal can be amended.

The legal position is that if the original notices of appeal are defective, then there is no appeal before the court. If there is no appeal before the court, then the matter ends there. It is not possible to amend or to seek condonation of a fatally defective notice of appeal. In Hama v National Railways 1996 (1) ZLR 664 (SC) the Supreme Court found that if a notice of appeal is fatally defective, then it is incapable of being amended for being incurably bad.

Counsel for the first appellant sought to persuade us that the decision in Hama v National Railways 1996 (1) ZLR 664 (SC) supports his contention that he can competently apply for condonation.

However, Hama v National Railways 1996 (1) ZLR 664 (SC) is distinguishable from the present matter in that in Hama v National Railways 1996 (1) ZLR 664 (SC) the party who moved the amendment withdrew its first notice of appeal thus presenting the amended notice of appeal as a belated notice of appeal as opposed to an amendment of the original notice of appeal. The Supreme Court, in accepting that the original notice of appeal had been withdrawn, then regarded the amended notice of appeal as being the only notice of appeal, and, accordingly, treated the notice of amendment as a belated notice of appeal for which condonation could be sought.

In casu, the appellants are asking us to cause the original grounds cited in the initial notice of appeal to be added to by the new grounds because they are not abandoning their original notices of appeal. As I mentioned earlier, the initial notices of appeal filed by the appellants are fatally flawed. In asking us to allow them to add new grounds to a fatally flawed notice of appeal, we find simply that the appellants are not entitled to add to something which is incurably bad.

Furthermore, it is important to recognise that in Hama v National Railways 1996 (1) ZLR 664 (SC), the court was applying its mind to the civil rules of the High Court and the various portions dealing with condonation.

Counsel for the first appellant suggested that the measure for competently settled grounds of appeal is that if they are 'concise' then they're sound. The authority for his proposition was a Supreme Court judgment in the matter of Econet Wireless (Pvt) Ltd v Trustco Mobile (Proprietary) Ltd and Anor SC43-13.

However, his submission is not applicable to the current set of circumstances because in Econet Wireless (Pvt) Ltd v Trustco Mobile (Proprietary) Ltd and Anor SC43-13 the court was focused on the rules for Civil Appeals and not Criminal Appeals. The requirement in criminal appeals is that the grounds be outlined in a 'clear and specific' manner in terms of Rule 18 of the Rules of the Supreme Court, 1964 and Rule 22 of the Supreme Court (Magistrates' Court) (Criminal Appeals) Rules, 1979 as opposed for the requirement that the grounds be framed in a 'concise' manner per Rule 32(1) of the Rules of the Supreme Court, 1964 which applies to Civil Appeals.

In casu, the manner of appealing is governed by a number of rules which are very specific in guiding the parties as to what is and what isn't permissible.

Rule 6 of the Supreme Court (Magistrate Court) (Criminal Appeals) Rules, 1979 reads as follows:-

“6. Amendment of notice

(1) The Attorney-General or an appellant as defined in Part V, VI, VII or VIII may amend his notice of appeal by lodging a notice in duplicate with the Registrar setting out clearly and specifically the amendment to the grounds of appeal -

(a) In the case of an appeal against conviction and sentence, as soon as possible and in any event not later than twenty days after the noting of an appeal;

(b) In the case of an appeal against sentence only…,.”

In the present matter, the notice of amendment was handed up at the hearing of the appeal so the court and the respondent only laid eyes on it for the first time on the hearing date on 28 March 2016, some eleven months after the original notice was filed; and thus well beyond the time limits mentioned in Rule 6 subrule 1(a) of the Supreme Court (Magistrate Court) (Criminal Appeals) Rules, 1979. The notices of amendment were neither preceded by nor accompanied with any applications for condonation. Instead, both the appellants counsel attempted to make them part of their original notices of appeal.

The rules are peremptory.

In the instances of a criminal appeal, the trial court must comment upon the decision taken to appeal against its ruling and the reasons for challenging his or her finding. See Dube J's instructive analysis in Christopher Nyamukapa v The State HH60-12.

However, in casu, the magistrate concerned had no knowledge that additional grounds had been raised by the appellants for challenging his/her ruling.

Further, Rule 28 of the Supreme Court (Magistrate Court) (Criminal Appeals) Rules, 1979 requires that the magistrate who dealt with the matter should make a statement on the grounds of appeal within four days of the appeal being noted, after which the Clerk of Court is required to remit the statement to the Registrar of the High Court for forwarding to the Supreme Court for an appeal certificate. Rule 28 reads:-

“28. Response by magistrate to notice of appeal

(1) The magistrate may, within four days of the noting of an appeal in terms of Rule 27, deliver to the Clerk of the court a statement containing any comments which he may wish to make on the grounds of appeal.

(2) The clerk of the court shall, as soon as he receives any statement referred to in sub rule (1) and in any event not later than five days after the noting of the appeal in terms of Rule 27; send to the Registrar the record of the proceedings of the case together with any statement referred to in subrule (1).”

Thereafter, the documents mentioned in Rule 28(2) are then forwarded to the Supreme Court for the issuance of a certificate. The magistrate is then required to respond to the granting of a certificate in accordance with Rule 30:-

“30. Response of magistrate to granting of certificate

(1) The magistrate shall, within five days of notification in terms of paragraph (a) of subrule (2) of Rule 29, so far as may be necessary having regard to any judgment or statement filed of record, deliver to the clerk of the court a statement in writing setting forth the facts which he found to be proved and his reasons for judgment and sentence and dealing with the grounds of appeal; and such statement shall become part of the record.”

Neither Rules 6, 28 and 30 have been mentioned by both appellants - and there has been no explanation given why that is so.

It is disheartening to see counsel pay little attention to the Rules which they should refer to when they prosecute their appeals. The notices of amendment cannot be made in a rushed manner and then expect to pass without a strict observance of the Rules.

Besides that, the appellants are trying to cure fatally defective grounds through the un-procedural filing of amendments. Fatally defective grounds can never be amended. The appeals were void ab initio.

In any event, the point sought to be introduced through the amended notice, i.e. the defence that the appellants were not public officers at the time the offences were committed, was never raised a quo. In fact, a quo, both appellants accepted that they were public officers at the time that the offences were committed. The appellants cannot suddenly introduce a new defence on appeal.

The Heads of Argument filed by both the appellants do not comply with the clear and strict provisions requirement laid out in Rule 238(1)(a) of the High Court Rules, 1971 both in form and content. They are voluminous - and not in a good way. They are rambling narratives which give a factual point of view the way that the appellants would have wanted the court a quo to analyse the facts. Both the appellants' heads of argument are of no assistance to the court. They are not clear. No points of law are made neither do they cite any authorities. Accordingly, in terms of Rule 238(2) of the High Court Rules, 1971 the appellants are deemed to be barred.

It is for all of the above reasons that we find that both appeals must fail. Accordingly we order as follows:

“First and second appellants appeals are dismissed with costs.”