Simon Takaruza v State [2025] ZWMSVHC 14 (10 February 2025)

2 HCMSCR 169-25 HMA 05-25 SIMON TAKARUZA Versus STATE HIGH COURT OF ZIMBABWE CHAREWA J MASVINGO, 10 February 2025 OPPOSED CHAMBER APPLICATION FOR LEAVE TO APPEAL TO THE SUPREME IN CHAMBERS AND ON THE PAPERS CHAREWA J: On 16 August 2017, applicant was convicted of 49 counts of robbery as defined in s126 (1)(a) of the Criminal Law (Codification and Reform) Act, Chapter 9:23. He was sentence to a cumulative prison term of 36 years. The matter came before me on automatic review in September 2017, wherein I confirmed the proceedings. Subsequently, applicant sought condonation of late noting of appeal and application to prosecute his appeal in person (ref: CON 173/18). I dismissed the application on 8 August 2018 in judgment HH 455/18 for lack of prospects of success, either on conviction or sentence. Applicant has now filed this present application on 31 January 2025 seeking leave to appeal to the Supreme Court, against the judgment I rendered in 2018. It is apparent on the face of the application that applicant is a little muddled as to which judgment he is appealing against. His first grounds of appeal to the Supreme are in fact predicated on the decision of the magistrates court which, firstly, allegedly erred, in plea recording, in its application of “s271 (2) (B) as read with s271 (3) of the Criminal Procedure and Evidence Act Chapter 9:07”. Secondly, on the other ground, appellant seems to suggest that I should not have confirmed the decision of the magistrate’s court or refused condonation because he had a good ground of appeal in that the sentence meted out to him was not the same as that awarded to his co-accused. He misses the point that it is not a requirement that co-accused be given the same sentence unless the circumstances are on all fours. Even more crucially, it is instructive to note that the above two grounds of appeal which he is now raising, are different from, and were not part of the grounds attached to his application for condonation, upon which my judgment of 8 August 2018 (which he seeks to appeal against) was predicated on. As a result, as pointed out by the State, there are still little to no prospects of success. DISPOSITION Accordingly, the application for leave to appeal to the Supreme Court is dismissed. Applicant, self actor National Prosecuting Authority, respondent’s counsel 2 HCMSCR 169-25 HMA 05-25 2 HCMSCR 169-25 HMA 05-25 SIMON TAKARUZA Versus STATE HIGH COURT OF ZIMBABWE CHAREWA J MASVINGO, 10 February 2025 OPPOSED CHAMBER APPLICATION FOR LEAVE TO APPEAL TO THE SUPREME IN CHAMBERS AND ON THE PAPERS CHAREWA J: On 16 August 2017, applicant was convicted of 49 counts of robbery as defined in s126 (1)(a) of the Criminal Law (Codification and Reform) Act, Chapter 9:23. He was sentence to a cumulative prison term of 36 years. The matter came before me on automatic review in September 2017, wherein I confirmed the proceedings. Subsequently, applicant sought condonation of late noting of appeal and application to prosecute his appeal in person (ref: CON 173/18). I dismissed the application on 8 August 2018 in judgment HH 455/18 for lack of prospects of success, either on conviction or sentence. Applicant has now filed this present application on 31 January 2025 seeking leave to appeal to the Supreme Court, against the judgment I rendered in 2018. It is apparent on the face of the application that applicant is a little muddled as to which judgment he is appealing against. His first grounds of appeal to the Supreme are in fact predicated on the decision of the magistrates court which, firstly, allegedly erred, in plea recording, in its application of “s271 (2) (B) as read with s271 (3) of the Criminal Procedure and Evidence Act Chapter 9:07”. Secondly, on the other ground, appellant seems to suggest that I should not have confirmed the decision of the magistrate’s court or refused condonation because he had a good ground of appeal in that the sentence meted out to him was not the same as that awarded to his co-accused. He misses the point that it is not a requirement that co-accused be given the same sentence unless the circumstances are on all fours. Even more crucially, it is instructive to note that the above two grounds of appeal which he is now raising, are different from, and were not part of the grounds attached to his application for condonation, upon which my judgment of 8 August 2018 (which he seeks to appeal against) was predicated on. As a result, as pointed out by the State, there are still little to no prospects of success. DISPOSITION Accordingly, the application for leave to appeal to the Supreme Court is dismissed. Applicant, self actor National Prosecuting Authority, respondent’s counsel