Masimba Musoni V THE State

### Preamble
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HH 301-13
Case No Con 146/12
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MASIMBA MUSONI

versus

THE STATE

HIGH COURT OF ZIMBABWE

HUNGWE & MAVANGIRA JJ

HARARE, 25 September 2013

Application for Leave to Appeal

HUNGWE J:	The applicant seeks leave of this court to appeal against the judgment of this court dismissing his appeal against both his conviction and sentence by way of a chamber application. That application does not include the proposed grounds of appeal as required by r 263 of the High Court Rules, 1971. Further, the application does not state the grounds upon which it is contended that leave to appeal should be granted as is required by the same rule.

Applicant makes a general statement that he is not happy with the decision of this court and that he “strongly believe that they misdirected themselves both at law and in fact and am quite positive that a different court will reach a different conclusion from that arrived at by the High Court judges sitting as a Court of Appeal”. He goes on to state in his supporting affidavit in para 6 that:

“6.	I maintain this view in light of the fact that:

Notwithstanding a letter mentioned in the record and the ambiguous altercation between my lawyer and the learned magistrate, which letter alleges bias on the part of the learned magistrate, the two judges sitting as an Appeal Court proceeded to uphold the magistrate’s decision on a clear matter where the magistrate ought to have recused himself and allowed the matter to proceed before a different magistrate. Bias need not be proved but is simply alleged.

Further, the Learned judges sitting as an Appellate court erred in proceeding to hear an appeal and making a determination on the basis of an incomplete record of proceedings with no comments made by the magistrate. On the notice and grounds of appeal, and certified by the parties as a true and correct record of what transpired in court etc.

I will by and large abide with the notice and grounds of appeal attached hereto as they are good prospects of success on appeal.”(sic)

The only notice and grounds of appeal attached to the present application before me are the self-same notice and grounds of appeal filed against applicant’s conviction and sentence in the Magistrates Court dated 21 October 2011. These were carefully considered after exhaustive argument by able counsel resulting in their dismissal. There is no indication as to the cause of the unhappiness which has again afflicted the applicant. It will be noted that in those grounds no reference was made to any prejudicial bias on the part of the presiding magistrate. As such no such ground was raised on appeal or argued before us. It is not supported by the evidence on the record.

Further, there was no allegation that the record of appeal was incomplete as a result of which incompleteness an appeal court could not properly determine the appeal. It is significant that the applicant does not point to any misdirection either on a point of law or a finding of fact in this court’s determination of the appeal upon which it could be argued that he enjoys good or bright prospects of success on appeal. An application for leave to appeal must not only have an arguable case, which, on the present papers is not made out, but also one of substance. See S v McGown 1995 (2) 81 (S).

In light of the above, the application for leave to appeal cannot succeed. It is therefore dismissed.

MAVANGIRA J agrees.

Chinyama & Partners,	applicant’s legal practitioners