Harmony Fararira v The State

### Preamble
1
HH 253-21
CON 6/19
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HARMONY FARARIRA

versus

THE STATE

HIGH COURT OF ZIMBABWE

MUZOFA J

HARARE, 20 May 2021

Chamber Application

MUZOFA J: I dismissed this application for condonation of late noting of an appeal. The applicant has requested for the reasons for the purposes of an appeal.

The applicant was convicted by a Regional Court siting at Gokwe Magistrates Court on four counts of robbery and one count of unlawful possession of a firearm. He appeared together with his accomplice who is not part of this application. He pleaded guilty and he was convicted on all counts. He was sentenced to 20 years imprisonment on counts one to four of which twelve months imprisonment were suspended on condition of restitution in different amounts to the respective complainants. A further 24 months imprisonment were suspended on condition of good behaviour. In respect of count five he was sentenced to 12 months imprisonment, in addition the KW pistol was forfeited to the State.

The factors which the court should consider in determining an application for condonation are set out in a number of cases in this court.  Herbstein & van Winsen in The Civil Practice of the Supreme Court of South Africa 4 ed by van Winsen, Cilliers and Loots at pp 897-898 set out the requirements as follows:

“Condonation of the non-observance of the rules is by no means a mere formality. It is for the applicant to satisfy the court that there is sufficient cause to excuse him from compliance ...  The court's power to grant relief should not be exercised arbitrarily and upon the mere asking, but with proper judicial discretion and upon sufficient and satisfactory grounds being shown by the applicant. In the determination whether sufficient cause has been shown, the basic principle is that the court has a discretion, to be exercised judicially upon a consideration of all the facts, and in essence it is a matter of fairness to both sides in which the court will endeavour to reach a conclusion that will be in the best interests of justice. The factors usually weighed by the court in considering applications for condonation ... include the degree of non-compliance, the explanation for it, the importance of the case, the prospects of success, the respondent's interest in the finality of his judgment, the convenience of the court and the avoidance of unnecessary delay in the administration of justice."

The court therefore has to exercise its discretion considering what is just and fair after a consideration of the factors set out.

The applicant is in custody serving his sentence at Chikurubi Maximum Prison.  His explanation for the delay is that while in prison he was not aware of the appeal procedure. He also had challenges in securing the court record. His relatives were not readily available to assist him.

The explanation is reasonable taking into account the extent of the delay.  Generally, it is the administrative challenges in obtaining the record of proceedings that delay such applications. The applicant being in prison meant he could not follow up with the office of the Clerk of Court at Gokwe Magistrates Court. I am also convinced that the applicant may not have known that he could appeal against the decision of the Magistrate without the aid of a legal practitioner.

It is the prospects of success that present the applicant with an insurmountable task. The applicant intends to appeal against both conviction and sentence. In respect of conviction he basically states in many words that the court a quo failed to properly canvas the essential elements of the offence. The pleas of guilty were not genuine.

Six grounds of appeal are set out impugning the judgment by the court a quo. I reproduce them to demonstrate the point I make.

The plea was not evaluated as per enacted standards

The court failed to express duress on evaluation of the plea offered

The court erred to accept a plea when there was no crime committal (sic)

The court failed to accept the plea without making inquest on what the applicant was pleading to

There was no need for accounting the plea readings collectively

The sentence was out of (sic) ordinary

It would seem that drafting of proper grounds of appeal eludes both the trained mind and the untrained mind in most instances. Some leverage is given to unrepresented applicants for obvious reasons. However, there is a certain level of clarity in the grounds of appeal that is expected for the court to understand what is being challenged. As can be noted, in this case, the grounds of appeal are short but they lack precision. All the grounds of appeal do not raise a specific issue for consideration by the appeal court, they may be struck off.

Despite my observation on the grounds of appeal I shall address them from my understanding in the assessment of the prospects of success.

Grounds of appeal one, two and four seem to raise issue with the plea recording procedure, that the court did not follow the correct procedure, that the essential elements were not properly canvassed and that the questions put to the applicants were inadequate for the purposes of entering a verdict of guilty.

The grounds of appeal raise procedural issues that should be properly raised in an application for review. It is trite that an appeal and an application for review are different. An appeal seeks to attack or show that the conviction was not proper, in other words to demonstrate that the accused person did not commit the offence. On the other hand, a review is concerned with the procedural aspects of the proceedings. The proceedings should be conducted in terms of the law as provided in the Criminal Procedure and Evidence Act. Where the court fails to comply with the set down procedure, the proceedings are susceptible to be set aside and an appropriate order made.

In this case it is the procedure that the applicant finds fault with. He does not set a ground that attacks the conviction. Even if the grounds of appeal can be said to be properly before the court, the applicant cannot succeed. A perusal of the record of proceedings shows that the court a quo properly canvassed the essential elements of the charges. The applicant may have preferred a certain approach in the questioning but what is in the record is in accordance with real and substantial.

The court a quo asked questions to which the applicant conceded or confirmed that he took the complainants’ motor vehicles as stated without authority, used violence or threats of violence, he had no lawful right to do so, he had the requisite intention to permanently deprive the owners of their motor vehicles and he had no defence. Basically those are the essential elements of robbery that were canvassed. The court went on the ask,

“Q	Is your plea an admission of the charge, the facts and the essential elements of the offence.”

This was the last question in all the counts. It was a general question where the applicant had an opportunity to express his sentiments in respect of the charges. He did not say a word pointing otherwise except that he was offering an unconditional plea of guilty. The essential elements were properly canvassed. A change of plea could only be entered where some response from the applicant raised some doubt on the correctness of the plea .None of his responses could raise such doubt. There are no prospects of success on appeal.

The second ground of appeal lacks clarity. It sounds like the applicant raises the issue that the court a quo failed to appreciate that the plea was made under duress. As already stated, from the applicant’s responses which were all positive confirming the commission of the offence there is no way the court a quo could have concluded that the plea was made under duress. The applicant did not advise the court on the duress. A court cannot be impugned on the basis of what was not before it. Even in his application the applicant did not set out factors that indicate the alleged duress. The ground of appeal lacks merit.

The fifth ground of appeal is   meaningless and cannot succeed on appeal.

In respect of sentence, still there are no prospects of success. In assessing sentence, the court considered the mitigatory factors that the applicant was a first offender who pleaded guilty, most of the property was recovered and he apologized showing contrition. In aggravation which outweighed the mitigation, the court considered that the offences were committed using a firearm, there was premeditation and that robbery is a serious offence. On the last count the court considered that the possession of the firearm was coupled with the use of the firearm to commit serious offences. The court considered that a prison term was appropriate.

The general principle in sentencing is reformation as opposed to retribution in appropriate cases. However in some cases the nature of the crime and its harmful effects may sometimes dictate that only retribution will meet the justice of the case. See S v Kinnard & Another 2015 (1) ZLR 58(H). Robbery is generally a serious offence especially where it is committed under cover of darkness using a firearm. A total effective sentence of 17 years imprisonment cannot be said to be excessive considering the facts of the matter. In count one there was use of a firearm, in counts one, three and four the complainants were robbed of their motor vehicles, the complainants were manhandled and tied with ropes and dumped at some spot far from where they had parked their motor vehicles.

There are no prospects of success on appeal. It is for the above reasons that the application was dismissed in its totality.