Judgment record
Julius Shamu v The State
HH 445-18HH 445-182018
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HH 445-18
CON 63/18
CRB 4556/16
JULIUS SHAMU
versus
THE STATE
HIGH COURT OF ZIMBABWE
CHIRAWU-MUGOMBA J
HARARE, 23, 24 and 25 July 2018.
Chamber Application
Application for condonation of late noting of appeal and for leave to Prosecute Appeal
in Person
Applicant in Person
E. Nyazamba, for the respondent
CHIRAWU-MUGOMBA J: This application was placed before me with the title
“Chamber application for condonation of late noting of appeal against both conviction and
sentence”. However, it was much more than that as the draft order also sought leave to
prosecute appeal in person. Nonetheless, the omission of the last part from the title of the
application is not fatal.
As stated by CHITAPI J in Mapfumo v The State 1
“For the avoidance of doubt, in terms of s 36 of the High Court Act, [Chapter 7:06], a self-
acting person does not have an automatic right to prosecute his appeal in person before the
High Court unless a judge of the High Court grants such person a certificate to prosecute the
same in person. For the avoidance of doubt, a self-acting convicted person is entitled to note
an appeal in person. What he cannot do is to prosecute it or rather to appear before the High
Court in person and argue his appeal unless a judge of the High Court has granted such person
leave through a certificate issued for such purpose. A judge will only grant such certificate if
he/she considers that the person appealing has “reasonable grounds for appeal”.
The applicant was on 4 April 2017 convicted and sentenced in respect of five counts
of unlawful entry into premises in aggravating circumstances as defined in section 131(2)(e)
of the Criminal Law Codification and Reform Act [Chapter 9:23]. He was sentenced as
follows:
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CRB 4556/16
Count one- Four years imprisonment
Count two- Five years imprisonment of which six months imprisonment is suspended
on condition accused restitutes complainant through Clerk of Court Chitungwiza in
the sum of $1300
Count three- Three years imprisonment of which one month imprisonment is
suspended on condition accused restitutes complainant in the sum of $60 through the
Clerk of Court Chitungwiza.
Count four – Three years imprisonment of which two years imprisonment is
suspended on condition accused restitutes complainant through Clerk of Court
Chitungwiza in the sum of $165
Count five- Two years imprisonment of which 5 days imprisonment are suspended on
condition accused restitutes complainant through Clerk of Court Chitungwiza in the
sum of $2
Of the remaining the five years (sic) imprisonment suspended for five years on
condition accused does not within that period commit any offence involving
dishonesty for which upon conviction is sentenced to imprisonment without an option
of a fine.
Time to pay on or before 31/5/17. The remainder is effective.
KORSAH JA in Kombayi v Berkout 1988 (1) ZLR 53 (SC) set out the principles
which continue to be applied by courts to the present day. The court considers the following
broad principles in deciding whether or not to grant condonation;
a) The extent of the delay
b) The reasonableness of the explanation for the delay
c) The prospects of success
The applicant filed this application on the 13th of March 2018 almost eleven months
from the day of sentence. His reasons for not acting timeously can be summarised as follows:
- he faced financial constraints and his relatives failed him; he was ignorant about the rule of
law and it took sometime to obtain the record of proceedings which is crucial in the
preparation of the notice and grounds of appeal. He gained confidence after having consulted
prison officers and fellow inmates. Whilst I am mindful of the fact that in terms of section
70(5) of the 2013 Constitution every convicted person has a right to appeal to a higher court
against conviction and sentence, it is also pertinent to note that the same section recognises
that “reasonable restrictions may be prescribed by law”.
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The state opposed the application on two major grounds- that the delay is inordinate
and the intended appeal against conviction and sentence has no merit. Whilst self-actors
should be afforded the right to exercise their constitutional rights, courts should also be
cautious about such applications lest they are turned into a ‘given’ that every self-actor who
applies for condonation is successful. That is why it is critical to consider carefully the facts
of each case and measure them against the principles set out in the Kombayi (supra) and other
decisions. The reasons given by the applicant are eeringly similar to the ones advanced in
Phiri v The State HH-121-18 where CHITAPI J stated as follows:-
“The applicant avers that it was only in the course of serving his sentence that he learnt of his
rights to appeal from other inmates. He states that he was also advised that there would be
need for him to attach a record of proceedings to his application for condonation of late
noting of appeal”.
From the application, there is no evidence of what the applicant claims to be the
reasons for his delay in lodging the appeal. There is no proof that he communicated with the
Magistrate Court Chitungwiza on the issue of the record. No relative has deposed to an
affidavit to outline the alleged failure to act. A delay of some eleven months seems to be
inordinate. Furthermore, the lack of evidence points out to the fact that there is no reasonable
explanation for the delay in appealing.
The law has however put another rung in considerations of such matters by also
considering the prospects of success on appeal. It is critical to also note that even in
considerations for leave to prosecute an appeal in person, prospects of success on appeal are
crucial.
The draft notice and grounds of appeal is long and winding and does not meet the
criteria for grounds of appeal. It contains 14 proposed grounds of appeal against conviction
and one ground against sentence. Proposed ground two against sentence is not a ground but a
prayer. I summarise below the proposed grounds.
Re: Conviction
1. There was a misdirection because the court failed to consider that applicant was led
by police officers to scenes of crimes because they already had information of the
cases in their dockets.
2. There was a misdirection because the court failed to consider that the applicant was
assaulted by police officers so that he could reveal where the property was.
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3. There was a misdirection on the part of the court in failing to consider that there was
no reason why the applicant would go inside a bar and vomit whilst he was outside
the bar having a braai.
4. The court failed to consider that the defence outline led to the inspection-in-loco and
hence there was a misdirection.
5. There was a misdirection in that the court failed to consider that it is the police that
led him to scenes of the crimes.
6. There was a misdirection in that the court failed to consider conflicting of interest on
the part of the investigating officer.
7. There was a misdirection due to the fact that the state failed to prove the modus
operandi and that the applicant was not convicted of unlawful entry and theft.
8. The court misdirected itself by placing reliance on the evidence of the security guard
and failing to analyse such evidence.
9. There was a misdirection in that the court convicted the applicant when he had infact
proffered a good defence and by failing to conduct an inspection-in-loco.
10. There was a misdirection on the conviction because there was no nexus between the
applicant and the offence.
11. The essential elements of unlawful entry and theft were not proved.
12. Nothing was found in the possession of the applicant as all good in respect of count
one were found on the scene and nothing was found in respect of counts 1-5.
13. The court failed to consider the fact that the witnesses fabricated the charges against
applicant.
14. The appeal against conviction is reasonably arguable.
Re: Sentence
15. The sentence imposed induces a sense of shock and there was a misdirection because
the court relied on the modus operandi which was not proved and the applicant
“contrited to a first offender”.
As observed, some of the grounds of appeal are not properly framed but nonetheless,
the applicant seems to be relying on the fact that he was improperly convicted.
Unlawful entry is defined in the Criminal Law Code as follows:-
“131 Unlawful entry into premises
(1) Any person who, intentionally and without permission or authority from the lawful
occupier of the premises concerned, or without other lawful authority, enters the premises
shall be guilty of unlawful entry into premises and liable
(a) to a fine not exceeding level thirteen or not exceeding twice the value of any property
stolen, destroyed or damaged by the person as a result of the crime, whichever is the greater,
or imprisonment for a period not exceeding fifteen years, or both, if the crime was committed
in any one or more of the aggravating circumstances set out in subsection (2); or
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(b) in any other case, to a fine not exceeding level ten or not exceeding twice the value of any
property destroyed or damaged by the person as a result of the crime, whichever is the
greater, or imprisonment for a period not exceeding ten years, or both.
(2) For the purposes of paragraph (a) of subsection (1), the crime of unlawful entry into
premises is committed in aggravating circumstances if, on the occasion on which the crime
was committed, the convicted person
(a) entered a dwelling-house; or
(b) knew there were people present in the premises; or
(c) carried a weapon; or
(d) used violence against any person, or damaged or destroyed any property, in effecting the
entry; or
(e) committed or intended to commit some other crime.”
In respect of count one, the applicant was caught by a security guard who saw him
lying on top of the building where he had stolen some items. The stolen items were in the
applicant’s pockets and was identified as the property of the complainant. Applicant gained
entry through removing part of the roof. In respect of the second count, the applicant
admitted in the presence of the police that he entered into premises and his defence was that
he admitted due to pressure exerted on him but there was no evidence on this aspect. In
respect of the third count, the complainant indicated that part of the roof had been removed
and some items stolen. The applicant in the presence of ZRP made indications on how he
stole the goods. On the day in question, there was someone sleeping in the shop. The
complainant also stated that the applicant was very free when he made the indications a factor
which surprised her. In respect of the fourth count, the complainant stated that the applicant
came to the shop in the presence of ZRP and made indications. The applicant led the police to
Mbare Musika where he claimed that he sold the property. In respect to the fifth count,
applicant led the ZRP to a shop where he demonstrated how he had committed the crime.
This also included removing part of the roof. The totality of the evidence meets the
requirements of unlawful entry in aggravating circumstances. Counts 3, 4 and 5 had not been
reported and it was the applicant who led the police to the crime scenes. To all the shops that
applicant led the ZRP, they confirmed break-ins and this could not have been by coincidence.
The applicant therefore does not have any prospects of success on appeal against conviction.
A sentence is always at the discretion of the court and an appeals court will not lightly
interfere unless such sentence induces a sense of shock. The court took into account all the
mitigatory factors in sentencing the applicant. There is no discernable misdirection. There are
therefore no prospects of success on appeal against sentence.
In the result, it is ordered as follows;-
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1. The application for condonation of late noting of appeal against both conviction and
sentence and leave to prosecute an appeal in person is hereby dismissed.
National Prosecuting Authority – respondent’s legal practitioners