Albert Nherera v The State

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1
HH 56-18
CRB 60/15
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ALBERT NHERERA

versus

THE STATE

HIGH COURT OF ZIMBABWE

TAGU J

HARARE, 30 January 2018 & 07 February 2018

Chamber Application for leave to appeal

T Chigududugudze, for applicant

S Fero, for respondent

TAGU J: This chamber application was filed on the 12th day after the conviction and sentence of the applicant on a charge of murder in terms of Order 34 r 263 of the High Court Rules 1971. Ordinarily such an application should have been made orally immediately after sentence has been passed on the 13th September 2017 in terms of r 262. The reasons advanced for not making the oral application being that the pro deo counsel had not taken instructions from applicant on the intention to appeal to the Supreme Court. Further, the applicant needed time to digest whatever advise given him being unsophisticated with Grade 7 as his highest educational level attained. The applicant intent to appeal against both conviction and sentence.

The counsel who appeared on behalf of the respondent during the whole trial was one Mrs F Zachariah. One Mrs S Fero was tasked to handle this chamber application. Upon being served with the copy of the chamber application Mrs S Fero indicated that she was unable to informatively respond to the present application because it is incomplete in that the proposed notice of appeal and the record of proceedings did not form part of the application that was furnished to the respondent. She requested the applicant to avail the said documents to enable the respondent to respond to the application.

The Registrar of the High court through a letter dated 5th January 2018 requested the applicant’s legal practitioner to attend to the query raised by the respondent to enable them to place the application before the Judge for consideration. By letter dated the 16th January 2018 the counsel for the applicant refused to comply with the directive of the Registrar and insisted that the application was complete in terms of the Rules and requested that it should be placed before the Judge in that format.

As a result this application is being considered without the input of the respondent.

The facts and evidence are that on the 5th day of October 2012 in the evening the applicant arrived at Chipo Vhinyu’s hut and found the now deceased seated in the hut and the applicant suspected the now deceased to have been in love with Chipo Vhinyu. Apparently Chipo Vhinyu was someone’s wife but was also in love with the applicant. The deceased who was not known to Chipo Vhinyu had been brought by his relative Diana Gwera who shared this hut with Chipo Vhinyu to this homestead to collect some dried vegetables to be taken to her relatives. The applicant then took a knife and stabbed the now deceased on the neck without enquiring as to who the deceased was and his reasons for being there. The now deceased bolted out of the hut but died instantly a few metres away from the hut.

The applicant’s defense was that it was the now deceased who drew out the knife with intent to stab him. He disarmed the now deceased and stabbed him once on the shoulder. For that reason he raised the defense of self- defense which this court dismissed after assessing all the evidence and convicted him of murder with constructive intent. The court sentenced the applicant to sixteen years imprisonment.

In his notice of appeal the applicant said among other things that he should have been found not guilty and acquitted or that he should have been sentenced to a lesser sentence because the one imposed induced a sense of shock.

In my view and considering decided cases on crimes of passion such as S v Witness SC 146/04 and S v Smart Shonhiwa HH368/14 the appeal court would not interfere with the conviction and sentence hence the application is dismissed.

IT IS ORDERED THAT

The application for leave to appeal be and is hereby dismissed.

Chihambakwe, Mutizwa & Partners, applicant’s legal practitioners

National prosecuting Authority, respondent’s legal practitioners