Kefhas Mundo Murehwa and Chamunorwa Makoshhori v The State

1
                                                                             HH 282-11
                                                                            CON 121/11
                                                                   Ref: CRB M 109-11/11


KEFHAS MUNONDO MUREHWA
and
CHAMUNORWA MAKOSHORI
versus
THE STATE


HIGH COURT OF ZIMBABWE
BHUNU J.
HARARE, 16 November 2011 & 23 November 2011


       BHUNU J: The two applicants were convicted on their own pleas of guilty to a
charge of stock theft. They connived and with common purpose proceeded to the
complainant’s cattle kraal on 15 March 2011 in the dead of night at 2200 hours.
       Once at the cattle kraal they stole and drove away two oxen with the intention of
selling the two beasts. Police acting on information arrested the accused and recovered
the two stolen beasts.
       The two applicants appeared before the trial magistrate on 23 March 2011. They
pleaded guilty and the trial magistrate properly canvassed all the essential elements of the
offence. They unequivocally admitted their guilt and were properly convicted on their
own pleas of guilty.
       In the circumstances of this case it is futile for the applicants to seek to appeal
against conviction when they freely and voluntarily admitted that they stole the two
beasts for sale. In any case it is incompetent at law to appeal against conviction where
one unequivocally admitted his guilty before a judicial officer.
       As regards sentence, the offence is punishable by a minimum mandatory sentence
of 9 years in the absence of special circumstances. The trial magistrate properly
canvassed with the accused the existence or otherwise of special circumstances and he
found none.
       The magistrate’s finding in this respect can hardly be faulted. Where one steals
cattle for commercial purposes it is difficult to imagine what special circumstances may
                                                                                      2
                                                                             HH 282-11
                                                                            CON 121/11
                                                                   Ref: CRB M 109-11/11

be available to the accused because this is the very mischief for which the law maker
imposed the penalty of a minimum mandatory sentence of 9 years.
       The applicants were sentenced on 24 March 2011. They only lodged this
application for condonation of late noting of appeal about 4 months later on 25 July 2011.
Their reason for delay is that they had no funds to instruct a legal practitioner but they
have not explained why they did not appeal as self actors if they really wanted to appeal.
It appears to me that the attempt to appeal long after conviction and sentence has been
prompted by the rigors of imprisonment rather than a genuine belief that there are any
prospects of success on appeal. In the result I find that the delay was inordinate and there
are no reasonable prospects of success on appeal. That being the case, the application for
condonation of late noting of appeal cannot succeed.
       It is accordingly ordered that the application be and is hereby dismissed.


The Attorney General’s Office, respondent’s legal practitioners