Witness Gweshe v The State

The applicant had been convicted of a sexual offence involving a complainant. The applicant appealed against his conviction to the High Court, which dismissed the appeal on 10 July 2014. Following the dismissal, the applicant immediately applied for leave to appeal to the Supreme Court against the High Court's decision dismissing his appeal. The main basis for seeking leave was alleged contradictions in the complainant's evidence regarding the dates on which she alleged she was sexually abused. The applicant also relied on the fact that in another case involving the same complainant, a different High Court Appeal Court had arrived at a different conclusion.

• Whether there were reasonable prospects of success in an intended appeal to the Supreme Court against the High Court's dismissal of the appeal against conviction
• Whether contradictions in the complainant's evidence regarding dates of alleged sexual abuse warranted granting leave to appeal
• Whether the fact that another High Court Appeal Court reached a different conclusion in a different matter involving the same complainant constituted grounds for granting leave to appeal
• Whether an appellate court should go outside the parameters of the appeal record to upset the trial court's decision

Leave to appeal to the Supreme Court denied.

The binding principle is that leave to appeal will only be granted where there are reasonable prospects of success in the intended appeal. Issues that have been exhaustively dealt with by lower courts and are unlikely to persuade a higher court to reach a different conclusion do not provide grounds for leave to appeal. Each case must be considered on its own circumstances, and courts are not bound to follow reasoning or assessments of evidence in other cases even involving the same complainant. Finality in litigation must be achieved by denying leave to appeal where prospects of success are absent.

The court observed that while in a proper case an aggrieved appellant must be allowed to explore every reasonable possibility in his effort to regain his lost liberty through conviction, there comes a point where the door must be shut against hopeless cases to achieve finality. The court characterized the application as a "fishing expedition" with no merit, indicating judicial disapproval of meritless applications designed merely to delay the finality of proceedings.

This case is significant in Zimbabwean (not South African) criminal procedure for clarifying the test for granting leave to appeal and emphasizing that finality in litigation is important where there are no reasonable prospects of success. It reinforces that each case must be assessed on its own merits and that courts are not bound by decisions in other cases involving the same complainant but different circumstances. The judgment also clarifies the limits of appellate review and that appellate courts should not go outside the parameters of the appeal record.