Rabson Chatikobo v The State

### Preamble
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HB 273/22
HCA (COND) 31/20
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RABSON CHATIKOBO

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 3 NOVEMBER 2022

Application for leave to prosecute appeal in person

Applicant in person

T. Maduma for the state

MAKONESE J:	This is an application for leave to prosecute an appeal in person.  The application is dated 5th of November 2019.  The matter was initially placed before MABHIKWA J in November 2020.  The learned judge who has now left the service ordered that the application for leave for appeal in person be dismissed.

On the 4th of August 2022 the applicant requested a full judgment setting out the reasons for the refusal of the application.  I have taken the trouble to peruse the record for the purposes of handing down a full judgment in this matter.

Applicant appeared before a Regional Magistrate Court on the 3rd of October 2019 facing allegations of robbery as defined in section 126 (1) (b) of the Criminal Procedure and Evidence Act (Chapter 9:23).  The complainant Peter Jonathan Pretorius described how on arrival at his house at Famona, Bulawayo, on 21 June 2019, at around 1900 hours he was attacked by a gang of six or seven men.  The gate area was illuminated by a security light.  One of the men was armed with a pistol.  He was a metre away from him.  The man threatened to rape his wife before force marching him into the yard. Attempts by the complainant to scream were met with a blow to his head.  A crow bar was used in the attack.  More pressure was exerted on the complainant.  He was strangled and forced on to the ground.  Some of the assailants got into his house.  They ransacked the house. Complainant was robbed of US$20 000, jewellery, cell phones, a rifle, a Nissan motor vehicle and other valuables including a tool box and 15 rounds of ammunition.

In his judgment the learned Regional Magistrate noted that the applicant was properly identified at an identification parade.  Applicant was also described by the applicant’s wife as the person who entered her house armed with a pistol.  Applicant was described by complainant’s wife by his round facial features and stature.  The learned magistrate was satisfied that the applicant had been properly identified.  The evidence against the applicant was sufficient to convict the applicant.

Submissions by the applicant

In his application for leave to appeal in person, applicant simply states that, it is in the interests of substantial justice that he be allowed to prosecute the appeal in person.  Applicant contends that he wants to air out his grievances and circumstances surrounding the conviction.  Applicant avers that respondents are not likely to be inconvenienced by the application given that he is currently detained at Khami Prison.

Submissions by the State

The State is opposed to the relief sought on the grounds that there are no reasonable prospects of success on appeal against both conviction and sentence.  The applicant has not alleged that there was any irregularity in the conduct of the trial.  The State contends that the evidence led from the state witnesses was clear and credible.  The guilt of the applicant was proved beyond reasonable doubt.  Applicant was positively identified at an identification parade.  The sentence imposed of 10 years with 2 suspended is in line with sentences imposed in similar cases.  The State argues that robbery is a very serious offence which leaves the victims traumatized for a long time.

Whether application satisfies the requirements of the law

It is trite that where leave of this court is sought for an order to prosecute the appeal in person, the applicant must state the grounds for the application.  The applicant must attach the notice of appeal and the grounds upon which the application is made.  See Matanhire v B. P. Steel Marketing Services (Pvt) Ltd 2004 (2) ZLR 147 (S).  This application is fatally defective in that there are no grounds stating the reasons for the order sought.  More importantly, there are no grounds of appeal.  I have read the record of proceedings and I have not found any irregularity in the proceedings.  In the absence of any cogent grounds for the appeal, this appeal has no prospects of success.  It is my view that the application is a clear abuse of court process.  I must point out, that in applications of this nature, this court has a discretion whether or not to grant leave to execute the appeal in person. The court may only exercise such discretion if there is a proper application before it.  As I have indicated, the application itself is defective, there are no grounds of appeal are attached to the application. The application is not properly before the court. It has no merit. The application stands dismissed.

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