Judgment record
Tafadzwa Watson Mapfoche v The State
HH 438-18HH 438-182018
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HH 438-18
CON 154/18
REF CRB 73/12
TAFADZWA WATSON MAPFOCHE
versus
THE STATE
HIGH COURT OF ZIMBABWE
CHIRAWU-MUGOMBA J
HARARE, 18, 19 and 25 July 2018.
Chamber Application - Application for condonation for late noting of leave to appeal
Applicant in Person
E. Makoto, for the respondent
CHIRAWU-MUGOMBA J: The applicant was on the on the 29 th of September 2013
convicted by this court of murder in terms of section 47(1) (a) of the Criminal Law
[Codification and Reform] Act [Chapter 9:23]. He was sentenced to 25 years imprisonment.
On 6th of June 2018, he filed an application for condonation for late noting of leave to appeal
against both conviction and sentence.
In his explanation for the delay, three factors have been proffered by the applicant;-
a. That he lost contact with the legal practitioner who represented him at the trial.
b. That he faced difficulties in accessing the record of proceedings even when he had
engaged legal practitioners. The initial record supplied was not a complete one and;-
c. He faced financial constraints.
Applicant averred that he has good grounds of appeal against conviction in that the
Magistrate who confirmed his warned and cautioned statement erred in accepting that it be
redrafted. He alleged that he challenged the initial confirmation of his warned and cautioned
statement since he had been tortured by the police. He alleged that the indications made at the
scene of the crime were stage managed. Further, that apart from the warned and cautioned
statement, there is no other evidence that links him to the offence. The evidence in his view
points to a verdict of murder with constructive intent in view of the circumstantial evidence.
With regard to sentence, the applicant averred that although he accepts that the court
has discretion, in his case the court failed to place due weight on the fact that he was a
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youthful offender who was aged 20 at the time of the commission of the offence. He thus
deserved mercy and leniency as he could be rehabilitated. The above largely form part of his
draft notice of appeal.
The respondent is not opposed to the relief sought and proffered three reasons as
follows;
a. The court based its ruling on circumstantial evidence since no body was found and
another court may draw different inferences.
b. It can be argued that the appellant can be found guilty of a lesser charge of culpable
homicide since him and his co-accused left the deceased alive in an area that has wild
animals and they ought to have reasonably forseen the possibility of him being
devoured by wild animals.
c. Applicant faced difficulties in procuring the record and he could also not raise legal
fees for the appeal to be filed.
Section 44 of the High Court Act [Chapter 7:06] deals with appeals from the High
Court to the Supreme Court as follows:-
(2) A person convicted on a criminal trial held by the High Court—
(a) may appeal to the Supreme Court against his conviction on any ground of appeal which
involves a question of law alone;
(b) may, with the leave of a judge of the High Court or, if a judge of the High Court refuses to
grant leave, with the leave of a judge of the Supreme Court, appeal to the Supreme Court
against his conviction on any ground of appeal which involves a question of fact alone or a
question of mixed law and fact:
Provided that a person who appeals to the Supreme Court on a ground of appeal
which involves a question of law alone may, without applying to a judge of the High Court,
be granted leave to appeal by the Supreme Court should it appear to the Supreme Court on
the hearing of the appeal that the ground of his appeal involves a question of mixed law and
fact;
“(e) may, where the sentence to which he was liable on conviction was not a sentence fixed by
law, and where sentence of death was not passed upon him, with the leave of a judge of the High
Court or, if a judge of that court refuses to grant leave, with the leave of a judge of the Supreme
Court, appeal to the Supreme Court against his sentence or order of forfeiture or other order
following on conviction.”
This court on numerous occasions has exercised its mind on facts to consider when
dealing with applications of this nature. The 2013 Constitution has added a further dimension
by making the right to appeal against conviction and sentence part of the declaration of
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rights.1Apart from section 44 above, the other restrictions imposed by law are found in the
High Court Rules, Orders 262-268. In terms of rule 267, “no application in terms of rule 266
(application for condonation for failure to apply timeously) may be made after the expiry of
twenty-four days from the date on which the sentence was passed, unless the judge orders
otherwise”. The current application has been made out of the time limits set but nonetheless, I
have allowed the application to be made.
In applications of this nature, the South African approach has been set out in S v
DiBlasi 2 as follows:
“The general approach of this court to applications of this kind is well established. (see e.g.
Federated Employers Fire & General Insurance Co. Ltd Anor v McKenzie 1969 (3) SA 360
(A) at 362 F-H; S v Adonis 1982 (4) SA 901 (A) at 908 H-909A and Ferreira v Ntshingila
1990 (4) SA 271 (A) at 281 D-F. Relevant considerations include the degree of non-
compliance, the explanation therefor, the prospects of success, the importance of the case,
the respondent’s interests in the finality of the judgment, the convenience of the court and
the avoidance of unnecessary delays in the administration of justice.”
In De Kuszaba-Dabrowski et Uxor v Steel, N.O. 1966 RLR 60, BEADLE CJ set out
the broad principles to be taken into account in considering an application for condonation of
the late noting of an appeal. Some of these are –
a) the extent of the delay;
b) the reasonableness of the explanation for the delay;
c) whether the litigant himself is responsible for the delay;
d) the prospects of success on appeal should the application be granted; and
e) the possible prejudice to the respondent should the application be granted.
In Vigour Busilizwe Fuyana v Ntombaza Moyo3, the late CHIDYAUSIKU (CJ) as he
then was stated the basic requirements as follows:-
(a) a reasonable explanation for the failure to note the appeal within the prescribed
period.
(b) some prospects of success on the merits; and
1
Section 70(5) states that any person who has been tried for and convicted of an offence has
the right, subject to reasonable restriction that may be prescribed by law to appeal to a higher
court against the conviction and sentence.
2
1996(1)SACR (1) 3f-g
3
SC 54/06
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(c) the bona fides of the application.
The applicant has in my view advanced plausible reasons for his failure to file an
application for leave to appeal to the Supreme Court within the stipulated time frame. The
most critical factor rests on the prospects of success on appeal. I am mindful of the fact that
although a judge dealing with such application is not sitting as the appellate court per se but
nonetheless, s/he is required to assess the prospects of success on appeal and not the success
of the appeal. The proposed notice of appeal becomes very relevant in such considerations.
The proposed grounds of appeal in relation to the conviction are based on three
factors namely the warned and cautioned statements admissibility; circumstantial evidence
and intention to kill.
On the warned and cautioned statements, it is pertinent to note that the Magistrate to
whom the appellant and his co-accused were brought for confirmation of the warned and
cautioned statement refused to confirm the statements of both after they indicated that they
were severely assaulted by the police and this in the court’s view was a layer of protection
afforded to the accused persons. The Magistrate then directed that fresh statements be
recorded and this was done. The fresh statements were produced by consent after withdrawal
of the objection. More poignantly, the court took into account other evidence in relation to
the statements more specifically that, “The impression given by the statement is that the
deceased went down on his own volition. Whilst that may vary with the accused’s version in
court that he walked back to the boom gate, but the most important aspect of the statements is
that he was alive. It is therefore inconceivable that the accused would have been threated to
admit denying the charge and admit having left the deceased alive and kicking.”4
The court also dealt extensively with the issue of circumstantial evidence. It
concluded that the deceased was left by the appellant and his co-accused in Marongoro game-
park which they knew was infested with wild animals. Clothes belonging to the deceased
were found and the only conclusion that could be drawn from the facts is that he had died.
The court admitted that it relied on circumstantial evidence. The court placed reliance on the
reported decision in S v Shoniwa5 in which the late DUMBUTSHENA CJ (as he then was)
stated as follows at page 218 E-G:
4
At page 15 of the cyclostyled judgement ( page 42 of the record)
5
1987(1)ZLR 215 (S)
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“The law is that on a criminal charge the fact that a person was murdered can, like any other
fact, be provided by actual evidence or circumstantial evidence if that evidence leads to that
conclusion of fact, although no body or corpse was found. The court must, as in any other
criminal case, be satisfied beyond reasonable doubt of the guilt of the accused person. In
order to convict a person where nobody has been found, there need be no confession
establishing the guilt of the accused. There must be however, sufficient evidence to establish
the corpus delicti. That evidence can be wholly circumstantial provided it is sufficient to
preclude every reasonable inference of the accused.”
The totality of the evidence led could only lead to the reasonable inference that the
appellant and his co-accused left the deceased to die. The essential elements of murder are
set out in section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] as
follows:-
“(1) Any person who causes the death of another person
(a) intending to kill the other person; or
(b) realising that there is a real risk or possibility that his or her conduct may cause death, and
continues to engage in that conduct despite the risk or possibility; shall be guilty of murder.”
Section 47(1) (a) relates to murder with actual intent and 47(1) (b) murder with
constructive intent. The view by the respondent at the trial was that the evidence did not
prove murder with actual intent but with constructive intent. Nonetheless, the applicant and
his co-accused were found guilty of murder with actual intent. The court considered that they
abandoned the deceased in a place where he had no chances of survival in a place where there
were wild animals and they did so in order to conceal their identify as the persons who had
robbed the deceased.
In S v Gumbi 1994 (2) ZLR 323 & 327 EBRAHIM JA (as he then was) stated as
follows in relation to murder with constructive intention:-
“The point in essence is that there must be more negligence and more than gross negligence
to constitute that form of recklessness which amounts to constructive intent or dolus
eventualis. There must be in the mind of the accused person what has been called “a volitional
component”. In other words he must, in effect, say to himself, “I know I may kill this person
if I shoot but I am going to shot anyway”.
Section 11 of the act deals with causation as follows:-
“(1) A person shall not be held criminally liable for a consequence unless the person’s
conduct caused or substantially contributed to its occurrence.
(2) A person’s conduct shall be deemed to have caused or substantially contributed to a
consequence for the purposes of subsection (1) if the conduct
(a) is the factual cause of the consequence, that is, but for the conduct the consequence would
not have occurred; and:-
(b) is the legal cause of the consequence, that is, the consequence
(i) was a reasonably foreseeable consequence of his or her conduct; or
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(ii) was brought about by a new cause supervening after his or her conduct, which cause was
itself a reasonably foreseeable consequence of his or her conduct.
The totality of the evidence was such that the death was a direct result of the actions
of the appellant and his co-accused. They admitted robbing him of his vehicle and driving
him to an area infested with wild animals. However, it may be that a higher court may find
that the applicant and his co-accused ought to have been found guilty of murder with
constructive intent. This is more so given the fact that their actions may be those of persons
who knew that the deceased may meet death in the park but they still went ahead and left him
there. In the closing submissions by the respondent at the trial (page 56) it made the
following submission, “ Although proof of murder with actual intent is not clearly proved by
the evidence, by leaving the person at night in the dark in a game park with wild animals that
can easily roam about during night time, the accused realised the real risk or possibility of
death resulting from their conduct and may therefore convicted (sic) of murder with
constructive intent under the circumstances as their actions can easily be said to have caused
or substantially contributed to the death of the now deceased as contemplated by S11 of the
Criminal Law Code”. In other words, the respondent supported a verdict of murder with
constructive intent.
As for sentence, the major contention by the appellant is that the court paid lip service
to the fact that the appellant is a youthful first offender and as a result, the sentence is so
severe that it induces a sense of shock.
In S v Anderson 1964 (3) SA 494 (AD); and S v De Jager & Anor 1965 (2) SA 616
(AD) at 628 and 629 where HOLMES JA said:-
“It would not appear to be sufficiently realized that a court of appeal does not have a general
discretion to ameliorate the sentences of trial courts. The matter is governed by principle. It
is the trial court which has the discretion, and a court of appeal cannot interfere unless the
discretion was not judicially exercised, that is to say unless the sentence is vitiated by
irregularity or misdirection or is so severe that no reasonable court could have imposed it. In
this latter regard an accepted test is whether the sentence induces a sense of shock that is to
say if there is a striking disparity between the sentence passed and that which the court of
appeal would have imposed. It should therefore be recognized that appellate jurisdiction to
interfere with punishment is not discretionary but, on the contrary, is very limited.”
The accused was convicted of murder with actual intent but if a higher court finds that
he ought to have been found guilty of murder with constructive intent, this may affect the
sentence. In any event, applications for leave to appeal against sentence should be treated less
rigidly than those against conviction due to the fact that sentence is always discretionary.
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Accordingly, it is ordered as follows:-
1. The application for condonation for late noting of an application for leave to appeal to
the Supreme Court against sentence and conviction be and is hereby granted.
2. The applicant shall file his application for leave to appeal to the Supreme Court within
ten days from the date of service of this order on him.
3. The Registrar of the High Court Harare is directed to ensure that the applicant is
served with this order and confirms receipt and such proof shall be filed and become
part of the record.
National Prosecuting Authority- Respondent’s Legal Practitioners