Tinashe Blessing Sande v The State

The applicant was convicted on 17 December 2020 of robbery in aggravating circumstances under s 126(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. On 28 July 2020, a gang of five robbers attacked an 85-year-old complainant at Chikwerekwere Village, Chief Mangwende in Murewa. They threatened him with his own Okapi knife (taken from his table), a hammer and a raser gun, bound his hands and legs, and stole property worth RTGS$5,279,580 including a brand new Isuzu KB 300 twin cab (registration AFC 2099). Part of the stolen property (grey trousers, a short, and the complainant's marked Okapi knife kept for 30-50 years) was recovered from the applicant's wardrobe in Marondera and from his Altezza vehicle. A security guard witnessed the applicant's Altezza parked near the complainant's home on the day of the robbery (around 6pm) with number plates removed. About an hour later, he saw the stolen vehicle stop briefly by the Altezza, doors opened and closed, and both vehicles sped towards Marondera. Police traced the Altezza to the applicant's yard using the security guard's detailed description, leading to his arrest. The applicant was sentenced to 12 years imprisonment, with 2 years suspended for 5 years on good behaviour and 1 year suspended on condition of restitution. The application for leave to appeal out of time was filed on 1 July 2022.

• Whether there were reasonable prospects of success on appeal against conviction
• Whether there were reasonable prospects of success on appeal against sentence
• Whether leave to appeal out of time should be granted
• Whether the trial court erred in accepting the credibility of the complainant's evidence
• Whether the trial court erred in accepting the security guard's identification evidence
• Whether the sentence imposed was manifestly harsh and excessive

The application for leave to appeal out of time and for a certificate to prosecute the appeal against both conviction and sentence in person was dismissed.

An application for leave to appeal out of time will be dismissed where the applicant fails to demonstrate reasonable prospects of success on appeal, as this constitutes the first and threshold hurdle that must be surmounted. There is no requirement to consider factors such as the degree of non-compliance with time frames, explanation for delay, importance of the case, or the respondent's interest in finality when the intended appeal is a predictable failure. It is not in the interest of the proper administration of the criminal justice system to grant leave to appeal when there are no prospects of success. In assessing prospects of success, overwhelming evidence against an applicant, including credible eyewitness testimony, identification of recovered stolen property, and detailed circumstantial evidence linking the accused to the crime scene, will preclude any reasonable prospect of success on appeal against conviction.

The court observed that the trial magistrate's characterization of the security guard as 'the star witness' could not be shaken on appeal, given his detailed observation and identification of the Altezza vehicle and his witnessing of the coordination between the stolen vehicle and the getaway vehicle. The court noted approvingly that the security guard's evidence was vindicated by the inspection in loco. Chikowero J made a pointed observation that the applicant, a former member of the police service, 'began a life of crime at the deep end,' suggesting particular concern when those formerly entrusted with law enforcement engage in serious criminal activity. The court commended the trial magistrate for the sentence imposed, indicating judicial approval of the approach taken in balancing competing sentencing considerations in cases of violent robbery against elderly victims.

This Zimbabwean High Court case demonstrates the stringent test applied when considering applications for leave to appeal out of time, particularly emphasizing that reasonable prospects of success constitute the first and threshold requirement. The judgment reinforces the principle that courts will not grant leave to appeal when such appeal is a 'predictable failure,' regardless of other considerations. It illustrates the court's approach to evaluating the sufficiency of identification evidence in robbery cases and the proper balancing of aggravating and mitigating factors in sentencing for violent crimes against elderly victims. The case also reflects the courts' protective stance toward society in cases involving expertly planned violent robberies, even for first offenders.