Tapiwa Sanzira v The State

### Preamble
1
HCMTJ 37/24
HCMTCR 1323/24
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TAPIWA SANZIRA

versus

THE STATE

HIGH COURT OF ZIMBABWE

MUZENDA J

MUTARE, 20 August 2024

Opposed Application

MUZENDA J: This is a chamber application for condonation for late noting of appeal and leave to prosecute the appeal in person:

Applicant, represented by counsel, Mr Bvuma, was convicted of malicious damage to property, unlawful entry in aggravating circumstances and theft. For first count he was sentenced to 24 months imprisonment, 6 months of which were suspended for 5 years on conditions set. A further 6 months imprisonment were further suspended on condition of restitution. On count 2, applicant was sentenced to 5 years imprisonment of which 2 years imprisonment were suspended for 5 years on condition. Effective was 3 years imprisonment. For count 3, applicant was sentenced to 4 years imprisonment, 12 months imprisonment was suspended for 5 years on conditions set. Effective sentence was 3 years imprisonment. All in all applicant was effectively sentenced to 7 years imprisonment. He wants to appeal against sentence only.

The applicant was sentenced in 2022 and he is approximately 2 years out of time. He was informed of his right to appeal to a superior court, he only acted after becoming aware of an outcome of an appeal by his co-accused. He adds that the reasons for delay were not under his control. He however does not address the court on prospect of success. In his draft grounds of appeal he states that the lower court erred in failing to treat counts as one for sentence. He also stated that there were splitting of charges and that the sentences induce a sense of shock. At least they should have been ordered to run concurrently.

The state impugns the draft grounds of appeal and in respondent’s view faces a difficult task to prosecute his appeal in person moreso given the trajectory he had embarked on and the quality of the grounds of appeal. It also adds that the delay to apply for condonation was inordinate and applicant failed to advance cogent reasons for the delay. He thus failed to meet the standard expected of this type of application. Respondent urged this court not to exercise its discretion to condone and decline the request sought by the applicant.

Indeed the draft grounds of appeal are in a sorry state but presumably these can be amended where necessary at the opportune time. The challenge faced by the applicant is that he was well legally represented at the time of trial, he was also advised of his rights to appeal. The record coincidentally was sent for review and my sister Charewa J confirmed proceedings. Applicant wished to act for self, there was no need for him to take 2 years to launch the application. I will make a finding that the delay is inordinate and the reasons given by applicant are cursory and protective. He is not being candid with this court. The order in the matter of Trymore Mukura v The State was granted on 25 September 2023 and it is not clear from applicant’s papers why he waited until 2024 to bring this application.

I have carefully looked at the reasons for sentence given by the trial court as well as the respondent’s opposing papers and I am persuaded by the respondent that I see no misdirection committed by the trial court. Applicant failed to establish facts and the law that establish an arguable case on appeal or generally prospects of success on appeal. Apparently all the 3 convictions attract fairly long terms of imprisonment and a judicial officer on review has already confirmed the sentences as being in accordance with real and substantive justice.

Application for condonation to appeal out of time is accordingly refused.