Dereck Chitakatira v The State

### Preamble
1
HMT 76/19
CRB 43/19
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DERECK CHITAKATIRA

versus

THE STATE

HIGH COURT OF ZIMBABWE

MUZENDA J

MUTARE, 31 October 2019

In Chambers

Applicant in person

M Musarurwa, for the state

MUZENDA J: The applicant was convicted of murder as defined in s 47 (1) (a) of (b) of the Criminal Code on 20 September 2019 and sentenced to 18 years imprisonment.

He has now filed an application for leave to appeal in terms of r 262 of the High Court Rules, 1971. In his papers the applicant states that “he has good grounds of appeal which are supported by the record of proceedings” he goes on to mention under “Grounds for leave” that he was sentenced for a crime he did not commit, that he was wrongly convicted, and  also added that no post mortem result was produced by the state.

The application is opposed by the state. Mr Musarurwa, for the state submitted in the state’s response to the chamber application for leave to appeal to the Supreme Court, that the application by applicant falls far short of the requirements set out in rr 262-68 of the High Court Rules. The applicant does not say in his application what his grounds of appeal are. He does not elucidate what “these good grounds are in his papers.” The respondent is placed in a very difficult position to make a decision whether to concede or not given the dearth of particularity in applicant’s papers. In S v Mutasa; it was held:

“… dismissing the application, that before the application could be granted, it was necessary for the applicant to show a reasonable prospect of success on appeal. If he has such a prospect, leave to appeal should be granted, if not, it should be refused. It is not enough merely to make out a reasonably arguable case.”

The learned Chief Justice went on to clarify the requirements

“In my view the correct approach to adopt when considering an application for leave to appeal should not be based on whether an appeal is arguable or not, but on its prospects of success. Support for this approach is based on sound and pursuable authority. In R v Baloi it was stated:

‘In the present case RAMSBOTTOM J granted leave to appeal because

‘Some, at any rate of the grounds which the accused wished to raise, or which it is wished to raise on his behalf, seem to me to be fairly arguable’”

That however, is not the test to be applied. It is true that in Scott v New Minerva Syndicate Ltd, one of the grounds on which an application for leave to appeal was granted was that the case was fairly arguable and that in R v Wessels Stratford ACJ said that:

“If the appeal involves a question of law on which the guilt of the accused depends, leave will be granted if that question is an arguable one”

On p 9 A-B the court concluded:

The same applies to the word “arguable” and the phrase “fairly arguable”. The word ‘arguable’ is misleading unless it is made clear that it is used ‘in the sense that there is substance in the argument advanced on behalf of the applicant’, for there are very few causes which are not arguable in the meaning of the word.”

In casu, the applicant did not even go anywhere near the requirements anticipated and demanded by the rules as spelt out hereinabove, applicant had failed to show that he has reasonable prospects of success on appeal.

Accordingly the application for leave to appeal is refused.

National Prosecuting Authority, respondent’s legal practitioners