Godfrey Toendepi v The State [2025] ZWCHHC 11 (14 March 2025)

4 HCC 16/25 HCCR 1381/24 X REF RCHN 360/22 RCHN 338/22 GODFREY TOENDEPI versus THE STATE HIGH COURT OF ZIMBABWE MUZOFA J CHINHOYI,14 March 2025 Chamber application for condonation of late noting of an appeal against sentence In Chambers MUZOFA J: I dismissed this chamber application sometime back. The applicant’s legal practitioners requested for the written reasons which are provided herein. The decision was made without the benefit of the State which did not file its response despite numerous calls for the State to file responses in such chamber applications. Factual Background The applicant appeared before a regional court sitting in Chinhoyi facing ten (10) counts of robbery under RCHN 360/22. He also appeared before the same court under RCHN 338/22 facing seven (7) counts of robbery. RCHN 360/22 Out of the ten counts preferred against the applicant, he pleaded guilty to three counts, which were counts 3 to 5. He was found not guilty and acquitted in respect of the rest of the counts. The agreed facts were that the applicant in the company of eight accomplices embarked on nefarious criminal adventures and terrorised the Msengezi resettlement community Chegutu with robberies. They were armed with a pellet gun and machetes. In count 3, on the 26th of May 2022 at around 0100 hours they approached the complainant’s shop, forced opened the door and woke her up. They threatened her with a pellet gun, demanded cash and valuables. The complainant surrendered her day’s takings of US$80.00 and various groceries. They packed the loot into a getaway motor vehicle a Nissan Van registration number AFS 4045 and sped off. The total stolen was US$150.00 and nothing was recovered. Using the same modus operandi in the wee hours of the morning, the applicant and his accomplices pounced on Tapiwa Kunzvi’s shop at Village 7 Msengezi Chegutu. They broke the door and gained entry. After threatening the complainant and his friend who were disturbed in their sleep, they stole two cellphones and various groceries valued at US$162.00 and nothing was recovered. From Tapiwa’s shop they proceeded to Bistone Chikomale’s shop at Village 9 Msengezi, Chegutu. They broke the door using an axe and after threatening the complainant and his wife they stole a cellphone and some groceries value US250.00 and nothing was recovered. In all the cases applicants used the Nissan Van to transport the goods. RCHN 338/22 The applicant was jointly charged with 2 (two) accomplices with 7 (seven) counts of robbery. He pleaded guilty to 6 counts. The State withdrew the charges after plea in respect of the offence he denied in count 3. The offences were committed from the 23rd of May 2022 in the night around 1100hours to the early morning hours of the 24th of may 2022. In that night the applicant and two accomplices terrorised shop owners around Chinhoyi. Only one count was committed on the 19th of May the same year. In that one night armed with a pellet gun, axe and an AK47 a flick knife they approached the 4 complainants who were fast asleep inside their shops. They unlawfully gained entry and using the weapons they had threatened the complainants and stole various properties and cash. Nothing was recovered. The applicant was arrested after he was implicated by one of his accomplices. Sentencing Judgment The court a quo sentenced the applicant to 3 years imprisonment on each count in both cases. Under CRB RCHN 360/22 the total sentence was 9 years. The Court ordered the sentence to run concurrently with the sentence under RCHN 338/22. 18 years imprisonment of which 6 years was conditionally suspended. In essence for the ten counts of robbery the effective sentence was 12 years imprisonment. The Law The law on condonation for non-compliance with the rules of the court is well trodden path set out in a plethora of cases. The applicant must satisfy the court on a balance of probabilities that the application is merited by placing before the court facts and the relevant law. The court must exercise its discretion judiciously after considering and weighing the applicable factors. The relevant factors include the degree of non-compliance, the explanation thereof, the prospects of success on appeal, the importance of the case, the respondent’s interest in the finality of the judgment, the convenience to the court and the avoidance of unnecessary delays in the administration of justice see Mahoya v Independent Africa Church SC 58/07. Not one factor is decisive they are considered cumulatively see Carol and Tatenda Mining Syndicate v Mashiri SC 95/24.Where the prospects of success are next to nil the scale tends to tip against granting the application. Despite that, the court is required to consider the other factors and make its decision based on the cumulative effect of the said factors. In Stuttafords Removals (Pvt) Ltd v Godfrey Nyamazunzu SC 40/20 the Supreme Court allowed the appeal on the basis that the court a quo failed to consider all the applicable factors with a view to do justice between the parties. The rationale was clearly stated as follows at page 5 of the cyclostyled judgment; “Those principles ought to be weighed one against the other before the application can be determined. This is so because the merit in one of the principles may help in compensating the weakness or lack of merit in the other laid down principles.” In my view, for a court to competently make such an assessment, the applicant must traverse fully the requirements in his or her application. Analysis Extent of delay and the explanation thereof. The applicant was sentenced on the same day the 2nd of March 2023.The application was filed on 13 November 2024 which is a year and 4 months later. An appeal was supposed to be filed within 10 days of the judgment. The delay is long regard been made to the permissible period within which to appeal. However, the period must be considered also in light of the explanation. The applicant’s explanation is that he was in custody for a lengthy period and was unaware of his right to appeal. He was unrepresented during the proceedings. He was advised at prison of his right to appeal. After that he engaged his relatives who took a considerable time to raise money to instruct a legal representative. It also took a considerable time to obtain the transcribed record. A careful reading of the two records shows that indeed the applicant was unrepresented although it appears Mr Muchini was in and out of the proceedings. The explanation cannot be said to be unreasonable. Generally the administrative process to secure record of proceedings is daunting to say the least. This issue has been raised by many litigants times without number but it seems there is no ready solution. There was nothing to refute the applicant’s explanation on the delay to access the record of proceedings. The other explanation is that some additional time was due to lack of resources to instruct a lawyer cannot be said to be unreasonable. Every person has a right to be legally represented by a lawyer of his or her choice. However in the exercise of such a right a person must not needlessly compromise judicial process to his prejudice. There is provision for a person to note an appeal in person. I find the explanation for the delay reasonable although the period of delay is long. The importance of the case and finality to litigation It is trite that this is an important case to the applicant who wishes that another court considers the sentence. The factor on finality to litigation also includes the convenience of the court. On the other side the interest of the public must be considered. Prospects of Success The applicant attached the intended grounds of appeal and elucidated them in his founding affidavit. He explained that there are good prospects of success on appeal. The grounds of appeal are that the court a quo imposed a sentence that induces shock, it failed to consider that the applicant was a youthful first offender who pleaded guilty to the charges. Also that he was prevailed upon by the older accomplices to commit the offence, that the amounts involved were on the lower side and none of the complainants sustained injuries. In assessing sentence, the court, a quo took into account the said factors. It considered the accused’s plea of guilty, age and family responsibilities as mitigatory. In aggravation it considered that the applicant committed serious offences. There was pre-meditation, they were masked, and they instilled fear on the complainants with their weapons. The starting point is the penalty provisions 126 (2) of the Criminal Law Code. Where there are aggravating circumstances the sentencing court may impose a maximum sentence of life imprisonment or any definite period. In any other circumstances, any definite period of imprisonment or a fine not exceeding level fourteen or not exceeding twice the value of the property stolen whichever is greater. The court was required to make a finding whether the offences were committed in aggravating circumstances. Subsection (3) thereof lists some of the aggravating circumstances as follows; Possession of a firearm or a dangerous weapon.Infliction or threats to inflict injury.Death of a person. It does not matter that the weapon was not used, the presence of a dangerous weapon or a firearm is aggravated since it has the potential to cause death. Even if it is not used, a complainant faced with an armed intruder is highly traumatised. In this case there was a pellet gun, and a knife, in other counts they had machetes. The very presence of such weapons is a threat of injury. The offences were committed in aggravating circumstances although regard is made that none of the complainants were injured. The sheer number of counts of robberies shows some careful planning to pounce on certain communities. Under RCHN 360/22 three shops were robbed. By targeting the shops, the offenders intended to reap the proceeds of sale and the wares. A shop is an investment, a source of income for other victims. Besides the physical trauma on the complainants, the offences disabled the complainant’s sources of livelihood. There was clear pre-meditation. They used a motor vehicle which was used to carry their loot. I did not see a specific order to forfeit the motor vehicle which was recovered. In my view the aggravating factors far outweigh the mitigatory factors. The applicant indeed is a youthful offender who pleaded guilty. However, youthfulness pales in the shadow when the accused commits a serious offence. Unfortunately the applicant started at the deep end so to speak. The applicant was already married and had a pregnant wife. His circumstances would and certainly are different from a youthful person still under parental and guardian care. The court a quo was correct, members of the public must feel safe when they retire to bed. They must rest and not sleep with one eye open. One of the objectives of criminal law is to express the collective revulsion towards such offences of violence. It seeks to protect members of the public from acts of intentional violence. A custodial sentence is usually called for, in S v Mvute, S v Baby 1985 (2) SA 61 (CK) at 62 the court observed; “The offence consists of the two elements of violence and dishonesty. Normally an individual can avoid situations which lead to violence and the danger of his being assaulted by taking the necessary precautionary measures. Similarly, he can take steps to guard against his property being stolen. It is, however a different matter when it comes to robbery. The victim cannot take precautions against robbery……..It must also be remembered that robbery is always a deliberately planned crime” See also South African Law and Procedure Vol 11- Common Law Crimes’ PMA Hunt and 3rd Ed by JRL Milton at page 660. I also add that the fact that robbers pounce on their victims, disables any form of defence. In these cases, the complainants were fast asleep, defenceless and vulnerable. Such robberies are different from street or pathway robberies committed during the day. The complainants may try to escape. Indeed, taken individually, the amounts involved were on the lower side. The values must not be overemphasized at the expense of the other factors particularly aggravating factors. The applicants were a gang of men attacking complainants individually. A custodial sentence unfortunately is inescapable in this case. The sentence of 3 years in each count maybe on the excessive side. However, to its credit the court ordered that the sentences run concurrently in the two records of proceedings. In essence for the ten counts of robbery committed in aggravating circumstances, an effective 11 years 6 months imprisonment which technically boils down to almost 1 year per count cannot be said to induce a sense of shock. It is for the said reasons that the application was dismissed. Muchini Attorneys, the applicant’s legal practitioners. 4 HCC 16/25 HCCR 1381/24 X REF RCHN 360/22 RCHN 338/22 4 HCC 16/25 HCCR 1381/24 X REF RCHN 360/22 RCHN 338/22 GODFREY TOENDEPI versus THE STATE HIGH COURT OF ZIMBABWE MUZOFA J CHINHOYI,14 March 2025 Chamber application for condonation of late noting of an appeal against sentence In Chambers MUZOFA J: I dismissed this chamber application sometime back. The applicant’s legal practitioners requested for the written reasons which are provided herein. The decision was made without the benefit of the State which did not file its response despite numerous calls for the State to file responses in such chamber applications. Factual Background The applicant appeared before a regional court sitting in Chinhoyi facing ten (10) counts of robbery under RCHN 360/22. He also appeared before the same court under RCHN 338/22 facing seven (7) counts of robbery. RCHN 360/22 Out of the ten counts preferred against the applicant, he pleaded guilty to three counts, which were counts 3 to 5. He was found not guilty and acquitted in respect of the rest of the counts. The agreed facts were that the applicant in the company of eight accomplices embarked on nefarious criminal adventures and terrorised the Msengezi resettlement community Chegutu with robberies. They were armed with a pellet gun and machetes. In count 3, on the 26th of May 2022 at around 0100 hours they approached the complainant’s shop, forced opened the door and woke her up. They threatened her with a pellet gun, demanded cash and valuables. The complainant surrendered her day’s takings of US$80.00 and various groceries. They packed the loot into a getaway motor vehicle a Nissan Van registration number AFS 4045 and sped off. The total stolen was US$150.00 and nothing was recovered. Using the same modus operandi in the wee hours of the morning, the applicant and his accomplices pounced on Tapiwa Kunzvi’s shop at Village 7 Msengezi Chegutu. They broke the door and gained entry. After threatening the complainant and his friend who were disturbed in their sleep, they stole two cellphones and various groceries valued at US$162.00 and nothing was recovered. From Tapiwa’s shop they proceeded to Bistone Chikomale’s shop at Village 9 Msengezi, Chegutu. They broke the door using an axe and after threatening the complainant and his wife they stole a cellphone and some groceries value US250.00 and nothing was recovered. In all the cases applicants used the Nissan Van to transport the goods. RCHN 338/22 The applicant was jointly charged with 2 (two) accomplices with 7 (seven) counts of robbery. He pleaded guilty to 6 counts. The State withdrew the charges after plea in respect of the offence he denied in count 3. The offences were committed from the 23rd of May 2022 in the night around 1100hours to the early morning hours of the 24th of may 2022. In that night the applicant and two accomplices terrorised shop owners around Chinhoyi. Only one count was committed on the 19th of May the same year. In that one night armed with a pellet gun, axe and an AK47 a flick knife they approached the 4 complainants who were fast asleep inside their shops. They unlawfully gained entry and using the weapons they had threatened the complainants and stole various properties and cash. Nothing was recovered. The applicant was arrested after he was implicated by one of his accomplices. Sentencing Judgment The court a quo sentenced the applicant to 3 years imprisonment on each count in both cases. Under CRB RCHN 360/22 the total sentence was 9 years. The Court ordered the sentence to run concurrently with the sentence under RCHN 338/22. 18 years imprisonment of which 6 years was conditionally suspended. In essence for the ten counts of robbery the effective sentence was 12 years imprisonment. The Law The law on condonation for non-compliance with the rules of the court is well trodden path set out in a plethora of cases. The applicant must satisfy the court on a balance of probabilities that the application is merited by placing before the court facts and the relevant law. The court must exercise its discretion judiciously after considering and weighing the applicable factors. The relevant factors include the degree of non-compliance, the explanation thereof, the prospects of success on appeal, the importance of the case, the respondent’s interest in the finality of the judgment, the convenience to the court and the avoidance of unnecessary delays in the administration of justice see Mahoya v Independent Africa Church SC 58/07. Not one factor is decisive they are considered cumulatively see Carol and Tatenda Mining Syndicate v Mashiri SC 95/24.Where the prospects of success are next to nil the scale tends to tip against granting the application. Despite that, the court is required to consider the other factors and make its decision based on the cumulative effect of the said factors. In Stuttafords Removals (Pvt) Ltd v Godfrey Nyamazunzu SC 40/20 the Supreme Court allowed the appeal on the basis that the court a quo failed to consider all the applicable factors with a view to do justice between the parties. The rationale was clearly stated as follows at page 5 of the cyclostyled judgment; “Those principles ought to be weighed one against the other before the application can be determined. This is so because the merit in one of the principles may help in compensating the weakness or lack of merit in the other laid down principles.” In my view, for a court to competently make such an assessment, the applicant must traverse fully the requirements in his or her application. Analysis Extent of delay and the explanation thereof. The applicant was sentenced on the same day the 2nd of March 2023.The application was filed on 13 November 2024 which is a year and 4 months later. An appeal was supposed to be filed within 10 days of the judgment. The delay is long regard been made to the permissible period within which to appeal. However, the period must be considered also in light of the explanation. The applicant’s explanation is that he was in custody for a lengthy period and was unaware of his right to appeal. He was unrepresented during the proceedings. He was advised at prison of his right to appeal. After that he engaged his relatives who took a considerable time to raise money to instruct a legal representative. It also took a considerable time to obtain the transcribed record. A careful reading of the two records shows that indeed the applicant was unrepresented although it appears Mr Muchini was in and out of the proceedings. The explanation cannot be said to be unreasonable. Generally the administrative process to secure record of proceedings is daunting to say the least. This issue has been raised by many litigants times without number but it seems there is no ready solution. There was nothing to refute the applicant’s explanation on the delay to access the record of proceedings. The other explanation is that some additional time was due to lack of resources to instruct a lawyer cannot be said to be unreasonable. Every person has a right to be legally represented by a lawyer of his or her choice. However in the exercise of such a right a person must not needlessly compromise judicial process to his prejudice. There is provision for a person to note an appeal in person. I find the explanation for the delay reasonable although the period of delay is long. The importance of the case and finality to litigation It is trite that this is an important case to the applicant who wishes that another court considers the sentence. The factor on finality to litigation also includes the convenience of the court. On the other side the interest of the public must be considered. Prospects of Success The applicant attached the intended grounds of appeal and elucidated them in his founding affidavit. He explained that there are good prospects of success on appeal. The grounds of appeal are that the court a quo imposed a sentence that induces shock, it failed to consider that the applicant was a youthful first offender who pleaded guilty to the charges. Also that he was prevailed upon by the older accomplices to commit the offence, that the amounts involved were on the lower side and none of the complainants sustained injuries. In assessing sentence, the court, a quo took into account the said factors. It considered the accused’s plea of guilty, age and family responsibilities as mitigatory. In aggravation it considered that the applicant committed serious offences. There was pre-meditation, they were masked, and they instilled fear on the complainants with their weapons. The starting point is the penalty provisions 126 (2) of the Criminal Law Code. Where there are aggravating circumstances the sentencing court may impose a maximum sentence of life imprisonment or any definite period. In any other circumstances, any definite period of imprisonment or a fine not exceeding level fourteen or not exceeding twice the value of the property stolen whichever is greater. The court was required to make a finding whether the offences were committed in aggravating circumstances. Subsection (3) thereof lists some of the aggravating circumstances as follows; Possession of a firearm or a dangerous weapon. Infliction or threats to inflict injury. Death of a person. It does not matter that the weapon was not used, the presence of a dangerous weapon or a firearm is aggravated since it has the potential to cause death. Even if it is not used, a complainant faced with an armed intruder is highly traumatised. In this case there was a pellet gun, and a knife, in other counts they had machetes. The very presence of such weapons is a threat of injury. The offences were committed in aggravating circumstances although regard is made that none of the complainants were injured. The sheer number of counts of robberies shows some careful planning to pounce on certain communities. Under RCHN 360/22 three shops were robbed. By targeting the shops, the offenders intended to reap the proceeds of sale and the wares. A shop is an investment, a source of income for other victims. Besides the physical trauma on the complainants, the offences disabled the complainant’s sources of livelihood. There was clear pre-meditation. They used a motor vehicle which was used to carry their loot. I did not see a specific order to forfeit the motor vehicle which was recovered. In my view the aggravating factors far outweigh the mitigatory factors. The applicant indeed is a youthful offender who pleaded guilty. However, youthfulness pales in the shadow when the accused commits a serious offence. Unfortunately the applicant started at the deep end so to speak. The applicant was already married and had a pregnant wife. His circumstances would and certainly are different from a youthful person still under parental and guardian care. The court a quo was correct, members of the public must feel safe when they retire to bed. They must rest and not sleep with one eye open. One of the objectives of criminal law is to express the collective revulsion towards such offences of violence. It seeks to protect members of the public from acts of intentional violence. A custodial sentence is usually called for, in S v Mvute, S v Baby 1985 (2) SA 61 (CK) at 62 the court observed; “The offence consists of the two elements of violence and dishonesty. Normally an individual can avoid situations which lead to violence and the danger of his being assaulted by taking the necessary precautionary measures. Similarly, he can take steps to guard against his property being stolen. It is, however a different matter when it comes to robbery. The victim cannot take precautions against robbery……..It must also be remembered that robbery is always a deliberately planned crime” See also South African Law and Procedure Vol 11- Common Law Crimes’ PMA Hunt and 3rd Ed by JRL Milton at page 660. I also add that the fact that robbers pounce on their victims, disables any form of defence. In these cases, the complainants were fast asleep, defenceless and vulnerable. Such robberies are different from street or pathway robberies committed during the day. The complainants may try to escape. Indeed, taken individually, the amounts involved were on the lower side. The values must not be overemphasized at the expense of the other factors particularly aggravating factors. The applicants were a gang of men attacking complainants individually. A custodial sentence unfortunately is inescapable in this case. The sentence of 3 years in each count maybe on the excessive side. However, to its credit the court ordered that the sentences run concurrently in the two records of proceedings. In essence for the ten counts of robbery committed in aggravating circumstances, an effective 11 years 6 months imprisonment which technically boils down to almost 1 year per count cannot be said to induce a sense of shock. It is for the said reasons that the application was dismissed. Muchini Attorneys, the applicant’s legal practitioners.