MUTIRWARA v STATE (44 of 2025) [2025] ZWMTHC 44 (29 July 2025)

2 HCMTJ 44-25 HCMTCR 1053/25 STEWART MUTIRWARA versus THE STATE HIGH COURT OF ZIMBABWE SIZIBA J MUTARE, 25 & 29 July 2025 OPPOSED CHAMBER APPLICATION Applicant in person T. L Katsiru, for the respondent SIZIBA J: The applicant filed a composite chamber application being for condonation of late noting of appeal and leave to prosecute the envisaged appeal in person. After hearing the parties on 25 July 2025, I dismissed both applications for lack of merit and gave reasons in an ex tempore judgment. He immediately requested for written reasons for my decision and they are the subject of this judgment. As a point of departure, it is an exercise in futility for a court of law to grant a condonation for late noting of appeal to a party when such a party’s prospects of success on appeal before it are non-existent. The only convenient, time and cost serving exercise under such circumstances is to refuse the condonation sought so as to close the door against such a litigant whose intended appeal can be predicted to fail with precision by any single judge in chambers. Having said that, it must be appreciated that the threshold for assessing prospects of success for those litigants who wish to have their day in court in the next higher court will not be placed too high especially when such prospects are being assessed by a single judge who does not constitute a quorum for an appellate court. Even then, no matter how low the bar is lowered, some litigants will simply not pass this easy test and such should be turned back and not be allowed to stand before the appellate court just for the sake of it. The sad reality is that some litigants are so litigious to the extent that no matter how bad the odds are against them, they will not be persuaded to give up the fight or accept any court’s decision which stands in their way. They will appeal until there is no more court to appeal to in the hierarchy of this jurisdiction. The inquiry on prospects of success is generally meant to cater for such eventualities. The applicant in the matter in casu does not deserve to stand before this court on appeal. On 4 June 2025, he was sentenced by the Magistrates Court in Rusape to 24 months imprisonment after being convicted of unlawful entry in aggravating circumstances in contravention of s 131(1) as read with s 131(2)(e) of the Criminal Law (Codification and Reform) Act (Chapter 9:23). On 15 March 2023, he allegedly went into the complainant’s dwelling house without permission and stole items worth US$379. Items worth US$230 were recovered. He was jointly charged with another person. Upon sentence, it was common cause that he had been convicted of a similar offence prior to such and sentenced to 24 months imprisonment. He pleaded guilty. His intended appeal to this court is only against sentence. The grounds of appeal are not clear and concise but as a self-actor, the court will look at the application on its merits and avoid technical issues that will confuse him and send him back to prison without comprehending what has transpired. The explanation for delay is not in issue. The State has conceded that as a layman, the applicant may not have appreciated the time lines for filing his appeal before this court. I agree that the application should not fail merely on the basis of such considerations if prospects of success could be found to exist. The State has submitted that there are no prospects of success. Since the applicant is not appealing against conviction, his complaint that he pleaded guilty due to duress has no effect. The trial court concluded that the applicant was a repeat offender who had pleaded guilty. The statutory penalty of a fine not exceeding level 13 or imprisonment not exceeding 15 years or both such fine and such imprisonment was considered. It was considered that he was a family man with one child aged one year and five months. The trial court settled for a custodial sentence of 24 months being the presumptive sentence for the offence. As a repeat offender, he cannot be heard grumbling about such a sentence that was fit for both the offender and the offence. He cannot complain that he ought to have been given a non -custodial sentence just because he pleaded guilty when he has failed to be reformed by his previous sentence. The trial court did not error at all. It properly exercised its sentencing discretion and gave a moderate punishment to this repeating offender. There is nothing at all from his grounds of appeal that is worth this court’s time in sitting to adjudicate his hopeless appeal on another day. All the grounds of appeal have no merit and hence the application must fail in as much as his intended appeal is doomed to fail. It is for these reasons therefore that I was constrained to dismiss both the application for condonation and the application for leave to prosecute the appeal in person. National Prosecution Authority, respondent’s legal practitioners 2 HCMTJ 44-25 HCMTCR 1053/25 2 HCMTJ 44-25 HCMTCR 1053/25 STEWART MUTIRWARA versus THE STATE HIGH COURT OF ZIMBABWE SIZIBA J MUTARE, 25 & 29 July 2025 OPPOSED CHAMBER APPLICATION Applicant in person T. L Katsiru, for the respondent SIZIBA J: The applicant filed a composite chamber application being for condonation of late noting of appeal and leave to prosecute the envisaged appeal in person. After hearing the parties on 25 July 2025, I dismissed both applications for lack of merit and gave reasons in an ex tempore judgment. He immediately requested for written reasons for my decision and they are the subject of this judgment. As a point of departure, it is an exercise in futility for a court of law to grant a condonation for late noting of appeal to a party when such a party’s prospects of success on appeal before it are non-existent. The only convenient, time and cost serving exercise under such circumstances is to refuse the condonation sought so as to close the door against such a litigant whose intended appeal can be predicted to fail with precision by any single judge in chambers. Having said that, it must be appreciated that the threshold for assessing prospects of success for those litigants who wish to have their day in court in the next higher court will not be placed too high especially when such prospects are being assessed by a single judge who does not constitute a quorum for an appellate court. Even then, no matter how low the bar is lowered, some litigants will simply not pass this easy test and such should be turned back and not be allowed to stand before the appellate court just for the sake of it. The sad reality is that some litigants are so litigious to the extent that no matter how bad the odds are against them, they will not be persuaded to give up the fight or accept any court’s decision which stands in their way. They will appeal until there is no more court to appeal to in the hierarchy of this jurisdiction. The inquiry on prospects of success is generally meant to cater for such eventualities. The applicant in the matter in casu does not deserve to stand before this court on appeal. On 4 June 2025, he was sentenced by the Magistrates Court in Rusape to 24 months imprisonment after being convicted of unlawful entry in aggravating circumstances in contravention of s 131(1) as read with s 131(2)(e) of the Criminal Law (Codification and Reform) Act (Chapter 9:23). On 15 March 2023, he allegedly went into the complainant’s dwelling house without permission and stole items worth US$379. Items worth US$230 were recovered. He was jointly charged with another person. Upon sentence, it was common cause that he had been convicted of a similar offence prior to such and sentenced to 24 months imprisonment. He pleaded guilty. His intended appeal to this court is only against sentence. The grounds of appeal are not clear and concise but as a self-actor, the court will look at the application on its merits and avoid technical issues that will confuse him and send him back to prison without comprehending what has transpired. The explanation for delay is not in issue. The State has conceded that as a layman, the applicant may not have appreciated the time lines for filing his appeal before this court. I agree that the application should not fail merely on the basis of such considerations if prospects of success could be found to exist. The State has submitted that there are no prospects of success. Since the applicant is not appealing against conviction, his complaint that he pleaded guilty due to duress has no effect. The trial court concluded that the applicant was a repeat offender who had pleaded guilty. The statutory penalty of a fine not exceeding level 13 or imprisonment not exceeding 15 years or both such fine and such imprisonment was considered. It was considered that he was a family man with one child aged one year and five months. The trial court settled for a custodial sentence of 24 months being the presumptive sentence for the offence. As a repeat offender, he cannot be heard grumbling about such a sentence that was fit for both the offender and the offence. He cannot complain that he ought to have been given a non -custodial sentence just because he pleaded guilty when he has failed to be reformed by his previous sentence. The trial court did not error at all. It properly exercised its sentencing discretion and gave a moderate punishment to this repeating offender. There is nothing at all from his grounds of appeal that is worth this court’s time in sitting to adjudicate his hopeless appeal on another day. All the grounds of appeal have no merit and hence the application must fail in as much as his intended appeal is doomed to fail. It is for these reasons therefore that I was constrained to dismiss both the application for condonation and the application for leave to prosecute the appeal in person. National Prosecution Authority, respondent’s legal practitioners