Trust Mutuzu v The State

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CON29/22
KBA401/22
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TRUST MUTUZU

V

THE STATE

HIGH COURT OF ZIMBABWE

MUZOFA J

CHINHOYI, 13th of January 2023

Chamber Application

MUZOFA J

The applicant seeks condonation for late noting of an appeal and extension of time within which to note an appeal. The State did not file a response. Despite the non-filing, l am required to consider the application on the merits.

The applicant appeared before a Magistrate sitting at Kariba Magistrates Court facing a charge of fraud in contravention of s136 (a) (b) of the Criminal Law (Codification and Reform) Act (Chapter 9:23).

The State alleged that the applicant sold a BMW X4 chassis number WBAXX120500X22929 with an engine number 59835070 to one Bonisani Sithole. The complainant paid US$9600. Unbeknown to the complainant the motor vehicle was under a Zimbabwe Revenue Authority temporary import licence which had expired on the 1st of March 2018.

In terms of the permit the applicant was not allowed to sell the motor vehicle. The fraudulent conduct was the misrepresentation that the motor vehicle was capable of being sold yet it was not.

When the applicant appeared before the court a quo, he was unrepresented and he pleaded not guilty to the charge. He set out a very elaborate defence outline wherein he narrated how he interacted with the complainant until he gave the complainant the motor vehicle and he received the US$9600.

When the first witness was called, the complainant in an about turn before the witness took the oath, the applicant raised his hand and indicated to the Court his intention to plead guilty to the charge and not waste the Court’s time.

The Court immediately asked the applicant if anyone had influenced him to alter his plea. He said no one influenced him. The court asked for the second time ‘are you sure’ the applicant answered ‘Yes your worship’.

Thereafter the facts were read out to the applicant and the essential elements put to him. He was then convicted.

He was sentenced to 24 months imprisonment of which 6 months imprisonment were suspended for 5 years on condition of good behavior. A further 8 months imprisonment was suspended on condition of restitution. The remaining 10 months imprisonment was suspended on condition of performance of community service.

Whether on hind sight or on legal advice the applicant decided to appeal against both conviction and sentence. Although it sounds illogical for one who has pleaded guilty to a charge to appeal against conviction, it seems there is no law that prohibits such an appeal.

Since he was out of time, he filed this application to pave way for the appeal.

In such an application the main considerations are the extent of the delay, reasonableness of the explanation for the delay, prospects of success, and importance of the case, respondent’s interest in the finality of his judgment, convenience of the court and avoidance of unnecessary delay in the administration of justice. See Ester Mzite v Damafalls Investments (Private) Limited SC 21/18;  Vundla and Another v Innscor Africa Bread Company Zimbabwe (Private) Limited and Another SC 14/22.

I have no issues with the extent of the delay and the reasons for the delay. A reasonable explanation has been given. The prospects of success are non-existent. It would be an exercise in futility to condone the applicant’s failure to comply with the court’s rules yet the appeal is doomed. What exercised my mind in this case is under what circumstances can an accused person who pleaded guilty to the charge successfully appeal against the conviction by the trial court.

The applicant pleaded guilty to the charge. An appeal against such a conviction is technically an application to change the plea of guilty to that of not guilty. Such an appeal can only he granted in exceptional cases. Korsah JA in S v Kwainona 1993 (2) ZLR 354 (S) had this to say about such appeals,

"But such an appeal will only be entertained if it is demonstrated that, from the words accompanying the plea tendered, the accused was raising some defence which could legitimately be proffered in defence to the charge. In making such a determination recourse must be had to the facts as alleged and to which the accused made his responses”.

See also S v Mudzingwa 1999 (2) ZLR (HC) and the cases cited therein.

In this case the applicant impugns the trial court for not giving him an opportunity to explain why he pleaded guilty. The two grounds of appeal really speak to the same issue. The grounds of appeal challenge the procedure adopted by the trial court which is a preserve of a review. An appeal impugns the court’s factual findings or findings of law.

Cognizant of the fact that the applicant is not privy to the technicalities of such proceedings l shall consider the grounds of appeal.

So, I must consider if there is a valid defence that the accused raised in his responses to the court.

In this case no defence was raised at all. It is also factually incorrect that the trial court did not seek to establish if the change of plea was genuine. As already indicated, the trial court asked the applicant twice if he was sure about his change of mind. Its mind boggling why at that stage he did not state whatever he wanted to say to the court. He was even asked if anyone influenced him to alter his plea, his response was ‘no’. Its high time litigants must take court business seriously. A court is not a playground that one shifts from one point to another. Courts exist for serious business and serious litigants who intend to defend and protect their rights. It is not expected that, as in this case a trial is about to commence the applicant sees witnesses he pleads guilty. Well after sentence he decides to change his plea. His prayer is for a trial de novo for the trial to start afresh. He wants a second bite of the cherry that he snubbed. Surely this would not be in the interest of justice. Courts have a lot of cases that need to be heard and to continue to give the likes of the applicant a second audience is defeating the proper administration of justice.

When the trial court canvassed the essential elements the applicant’s responses did not raise any valid defence by any imagination. He confirmed what the State alleged in the charge sheet and the State outline.

It is my considered view that there are no prospects of success on appeal and it is not in the interest of justice to grant this application.

Accordingly the application is dismissed with no order as to costs.