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HB129-09 - RAPHAEL TSHABANGU and NICHOLAS TSHABANGU and DUMEZWENI TSHABANGU vs THE STATE

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Procedural Law-viz appeal re leave to appeal.
Procedural Law-viz Constitutional right to speedy criminal proceedings.
Procedural Law-viz professional ethics.
Procedural Law-viz appeal re record of proceedings of the lower tribunal.
Procedural Law-viz appeal re findings of fact made by the trial court.

Court Management re: Conduct of Trials, Obligations Toward Unrepresented Accused and the Adherence to Fair Trial Rights

We convicted the three applicants of murder on 12 June 2009. I sentenced the applicants to sixteen (16) years imprisonment. They noted an appeal against both conviction and sentence. They now seek leave to appeal to the Supreme Court.

It took long for the matter to be set down as the Attorney General's office was unable to formulate its position. This was so because the law officers who initially dealt with the matter are not in the service.

Counsel for the State required the record of proceedings to be transcribed in order to read it and thereafter formulate a position. The transcription of criminal records has almost ground to a halt on account of unavailability of human and other resources.

Court Management re: Dominus Litis, Professional Ethics and Right of Audience Before the Court

We convicted the three applicants of murder on 12 June 2009. I sentenced the applicants to sixteen (16) years imprisonment. They noted an appeal against both conviction and sentence. They now seek leave to appeal to the Supreme Court.

It took long for the matter to be set down as the Attorney General's office was unable to formulate its position. This was so because the law officers who initially dealt with the matter are not in the service.

Counsel for the State required the record of proceedings to be transcribed in order to read it and thereafter formulate a position. The transcription of criminal records has almost ground to a halt on account of unavailability of human and other resources.

Appeal and Leave to Appeal re: Approach, Notice, Grounds and Right of Appeal, Concession & Withdrawal of Appeal by State

We convicted the three applicants of murder on 12 June 2009. I sentenced the applicants to sixteen (16) years imprisonment. They noted an appeal against both conviction and sentence. They now seek leave to appeal to the Supreme Court.

It took long for the matter to be set down as the Attorney General's office was unable to formulate its position. This was so because the law officers who initially dealt with the matter are not in the service.

Counsel for the State required the record of proceedings to be transcribed in order to read it and thereafter formulate a position. The transcription of criminal records has almost ground to a halt on account of unavailability of human and other resources. The State did not consent to the application nonetheless.

Counsel for the applicants kept his own notes as he was involved throughout the trial.

The approach in such an application was clearly stated in our case law. It is trite that the decision whether or not to grant leave to appeal against the verdict depends on the prospects of success. The matter should be approached on the basis, not of how good the prospects must be before leave is granted, but of how poor they must be before it is refused. The applicant should, therefore, be required to make out a reasonably arguable case, in the sense of there being substance in the argument - S v Mutasa 1988 (2) ZLR 4 (S); S v Tengende 1981 ZLR 445 (S)…,.; S v Woods and Others SC60-93; and S v McGown 1995 (2) ZLR 81 (S)…,.

As regards the application for leave against sentence, such application should be treated less rigidly than the one for leave to appeal against conviction, because assessment of sentence is one of the more difficult tasks with which a judicial officer is faced – S v Woods and Others SC60-93; R v Rowesayi 1969 (1) RLR 140 (A)…,; and S v McGown 1995 (2) ZLR 81 (S)…,.

Coming back to the facts of this case, the State counsel, like in S v Tengende 1981 ZLR 445 (S), did not have sight of the record of proceedings. I made my hand-written notes available to him but he is unable to read my handwriting. It was difficult for counsel for the State to consider the prospects of success in the absence of the record. Counsel for the Sate, therefore, made no serious effort to oppose the application.

I do not suffer the same disadvantage as I read through my notes.

This has been a lengthy trial which commenced on 25 September 2007 and ended on 12 June 2009. The conviction of the applicants was based mainly on the evidence of quasi-accomplice, Siwusu Wilfred Tshabangu, and another witness, Saul Ngwenya. The court rejected the applicants version. These events involved a number of persons, that is the deceased, Siwusu Wilfred Tshabangu and the original four accomplices. The skirmish was fast and there is room for mistake - even by a credible witness. We addressed the issue in detail in our judgment, but there is a reasonable prospect that the Judges of Appeal may take a different view, both in relation to questions of fact and of law – R v Kuzwayo 1949 (3) SA 761 (A)…,.

In the circumstances, so far as the verdict is concerned leave to appeal has to be granted.

As alluded to above, so far as sentence is concerned, sentence is a matter of discretion and there is always room for difference of opinion. Such applications need not, therefore, be treated as rigidly as applications for leave to appeal against conviction.

Cause of death is brain damage and skull fracture. The doctor who carried out the post mortem observed;

(i) Bruised skull and multiple sutured long incision sites on both sides of the head externally.

Internally, he observed;

(i) 4x3cm hole on the left parietal area;

(ii) 2x3cm hole on the right parietal area;

(iii) 8cm right patrie-temporal linear fracture and huge left parietal brain haematoma; and

(iv (Extensive parenchymal damage (pulped brain).

The doctor opined that severe force was used. This is a brutal assault with a lethal object, by three young brothers on their elderly brother. This is a bad murder where life was unnecessarily lost.

A sentence of 16 years cannot be said to be severe; compare S v Sherman SC117-84 and S v Chiringa 2002 (2) ZLR 537 (S).

The application for leave, so far as sentence, is devoid of merit and must therefore be refused.

As accordingly, I order as follows:-

“ALL THREE APPLICANTS:

(1) Leave to appeal against conviction be and is hereby granted.

(2) Leave to appeal against sentence be and is hereby refused.”

Appeal re: Findings of Fact or Exercise of Discretion Made by Trial Court iro Terminated or Complete Proceedings

We convicted the three applicants of murder on 12 June 2009. I sentenced the applicants to sixteen (16) years imprisonment. They noted an appeal against both conviction and sentence. They now seek leave to appeal to the Supreme Court.

It took long for the matter to be set down as the Attorney General's office was unable to formulate its position. This was so because the law officers who initially dealt with the matter are not in the service.

Counsel for the State required the record of proceedings to be transcribed in order to read it and thereafter formulate a position. The transcription of criminal records has almost ground to a halt on account of unavailability of human and other resources. The State did not consent to the application nonetheless.

Counsel for the applicants kept his own notes as he was involved throughout the trial.

The approach in such an application was clearly stated in our case law. It is trite that the decision whether or not to grant leave to appeal against the verdict depends on the prospects of success. The matter should be approached on the basis, not of how good the prospects must be before leave is granted, but of how poor they must be before it is refused. The applicant should, therefore, be required to make out a reasonably arguable case, in the sense of there being substance in the argument - S v Mutasa 1988 (2) ZLR 4 (S); S v Tengende 1981 ZLR 445 (S)…,.; S v Woods and Others SC60-93; and S v McGown 1995 (2) ZLR 81 (S)…,.

As regards the application for leave against sentence, such application should be treated less rigidly than the one for leave to appeal against conviction, because assessment of sentence is one of the more difficult tasks with which a judicial officer is faced – S v Woods and Others SC60-93; R v Rowesayi 1969 (1) RLR 140 (A)…,; and S v McGown 1995 (2) ZLR 81 (S)…,.

Coming back to the facts of this case, the State counsel, like in S v Tengende 1981 ZLR 445 (S), did not have sight of the record of proceedings. I made my hand-written notes available to him but he is unable to read my handwriting. It was difficult for counsel for the State to consider the prospects of success in the absence of the record. Counsel for the Sate, therefore, made no serious effort to oppose the application.

I do not suffer the same disadvantage as I read through my notes.

This has been a lengthy trial which commenced on 25 September 2007 and ended on 12 June 2009. The conviction of the applicants was based mainly on the evidence of quasi-accomplice, Siwusu Wilfred Tshabangu, and another witness, Saul Ngwenya. The court rejected the applicants version. These events involved a number of persons, that is the deceased, Siwusu Wilfred Tshabangu and the original four accomplices. The skirmish was fast and there is room for mistake - even by a credible witness. We addressed the issue in detail in our judgment, but there is a reasonable prospect that the Judges of Appeal may take a different view, both in relation to questions of fact and of law – R v Kuzwayo 1949 (3) SA 761 (A)…,.

In the circumstances, so far as the verdict is concerned leave to appeal has to be granted.

As alluded to above, so far as sentence is concerned, sentence is a matter of discretion and there is always room for difference of opinion. Such applications need not, therefore, be treated as rigidly as applications for leave to appeal against conviction.

Cause of death is brain damage and skull fracture. The doctor who carried out the post mortem observed;

(i) Bruised skull and multiple sutured long incision sites on both sides of the head externally.

Internally, he observed;

(i) 4x3cm hole on the left parietal area;

(ii) 2x3cm hole on the right parietal area;

(iii) 8cm right patrie-temporal linear fracture and huge left parietal brain haematoma; and

(iv (Extensive parenchymal damage (pulped brain).

The doctor opined that severe force was used. This is a brutal assault with a lethal object, by three young brothers on their elderly brother. This is a bad murder where life was unnecessarily lost.

A sentence of 16 years cannot be said to be severe; compare S v Sherman SC117-84 and S v Chiringa 2002 (2) ZLR 537 (S).

The application for leave, so far as sentence, is devoid of merit and must therefore be refused.

As accordingly, I order as follows:-

“ALL THREE APPLICANTS:

(1) Leave to appeal against conviction be and is hereby granted.

(2) Leave to appeal against sentence be and is hereby refused.”

Expert Evidence, Opinion Evidence and Toolmark Evidence re: Approach and the Limited Expert Knowledge of the Court

Cause of death is brain damage and skull fracture. The doctor who carried out the postmortem observed;

(i) Bruised skull and multiple sutured long incision sites on both sides of the head externally.

Internally, he observed;

(i) 4x3cm hole on the left parietal area;

(ii) 2x3cm hole on the right parietal area;

(iii) 8cm right patrie-temporal linear fracture and huge left parietal brain haematoma; and

(iv (Extensive parenchymal damage (pulped brain).

The doctor opined that severe force was used.


Application for Leave to Appeal

NDOU J: We convicted the three applicants of murder on 12 June 2009. I sentenced the applicants to sixteen (16) years imprisonment. They noted an appeal against both conviction and sentence. They now seek leave to appeal to the Supreme Court.

It took long for the matter to be set down as the Attorney General's office was unable to formulate its position. This was so because the law officers who initially dealt with the matter are not in the service.

Mr. Hove, required the record of proceedings to be transcribed in order to read it and thereafter formulate a position. The transcription of criminal records has almost ground to a halt on account of unavailability of human and other resources. The State did not consent to the application nonetheless.

Mr. Nyoni, for the applicants kept his own notes as he was involved throughout the trial.

The approach in such an application was clearly stated in our case law. It is trite that the decision whether or not to grant leave to appeal against the verdict depends on the prospects of success. The matter should be approached on the basis, not of how good the prospects must be before leave is granted, but of how poor they must be before it is refused. The applicant should, therefore, be required to make out a reasonably arguable case, in the sense of there being substance in the argument - S v Mutasa 1988 (2) ZLR 4 (S); S v Tengende 1981 ZLR 445 (S) of 447; S v Woods and Others SC60-93; and S v McGown 1995 (2) ZLR 81 (S) at 83-84.

As regards the application for leave against sentence, such application should be treated less rigidly than the one for leave to appeal against conviction, because assessment of sentence is one of the more difficult tasks with which a judicial officer is faced –S v Woods and Others, supra; R v Rowesayi 1969 (1) RLR 140 (A) at 141 D and S v McGown, supra, at 85C-E.

Coming back to the facts of this case, the State counsel, like in the Tengende case, supra, did not have sight of the record of proceedings. I made my hand written notes available to him but he is unable to read my hand writing. It was difficult for Mr. Hove to consider the prospects of success in the absence of the record. Mr. Hove, therefore made no serious effort to oppose the application.

I do not suffer the same disadvantage as I read through my notes.

This has been a lengthy trial which commenced on 25 September 2007 and ended on 12 June 2009. The conviction of the applicants was based mainly on the evidence of quasi-accomplice, Siwusu Wilfred Tshabangu, and another witness Saul Ngwenya. The court rejected the applicants; version. These events involved a number of persons, that is the deceased, Siwusu and the original four accomplices. The skirmish was fast and there is room for mistake even by a credible witness. We addressed the issue detail in our judgment, but there is a reasonable prospect that the Judges of Appeal may take a different view, both in relation to questions of fact and of law – R v Kuzwayo 1949(3) SA 761(A) at 765.

In the circumstances, so far as the verdict is concerned leave to appeal has to be granted.

As alluded to above, so far as sentence is concerned, sentence is a matter of discretion and there is always room for difference of opinion. Such applications, need not therefore, be treated as rigidly as applications for leave to appeal against conviction.

Cause of death is brain damage and skull fracture. The doctor who carried out the post mortem observed bruised skull and multiple sutured long incision sites on both sides of the head externally. Internally, he observed 4x3cm hole on the left parietal area, 2x3cm hole on the right parietal area, 8cm right patrie-temporal linear fracture and huge left parietal brain haematoma and extensive parenchymal damage (pulped brain). The doctor opined that severe force was used. This is a brutal assault with lethal object by three young brothers on their elderly brother. This is a bad murder where life was unnecessarily lost.

A sentence of 16 years cannot be said to be severe compare - S v Sherman SC117-84 and S v Chiringa 2002 (2) ZLR 537 (S).

The application for leave so far as sentence is devoid of merit and must therefore be refused.

As accordingly, I order as follows:-

“ALL THREE APPLICANTS:

(1) Leave to appeal against conviction be and is hereby granted.

(2) Leave to appeal against sentence be and is hereby refused.”







Messrs Moyo and Nyoni, applicants' legal practitioners

Criminal Division, Attorney General's Office, respondent's legal practitioners

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