S v NYAMUKAPA 2011 (2) ZLR 417 (H)

Flynote

Appeal — criminal matter — notice of appeal — appeal against conviction — need to state grounds of appeal clearly and specifically — reason for such requirement — notice consisting of vague averments invalid — not saved by providing details in heads of argument

Headnote

? After the appellant's conviction and sentence on a charge of theft of "trust property", a notice of appeal was filed on his behalf, which stated as follows. With regard to conviction, the appellant argued that the court a quo erred or misdirected itself in one or more of the following ways: firstly, whether or not it relied heavily on unsafe evidence which did not e point to the guilt of the appellant; secondly, whether or not it relied on flouting of workplace procedures by the appellant as evidence of theft, the charge alleged by the State. With regard to sentence, the appellant queried whether it imposed a disproportionate and stiffer penalty without regard to the accused's personal circumstances, mitigation and contrition.

The respondent argued that the notice and grounds of appeal raised in respect e of conviction fell short of the requirements of r 22(1) of the Supreme Court (Magistrates Courts) (Criminal Appeals) Rules 1979 ("the Rules"), being vague and too generalised. The rules require a notice of appeal to be clear and specific and to indicate whether the misdirection alleged is one of fact or law. The appeal, it was argued, was not properly before the court. The appellant's counsel submitted that there was no need to ? give further details because the notice of appeal stated clearly what the grounds of appeal were. He contended that the State had not suffered any prejudice as the grounds were amplified by appellant's heads of argument.

Held, that r 22(1) of the Rules provides that a notice of appeal should set out "clearly and specifically the grounds of the appeal". Failure to comply ? renders the notice a nullity. In terms of r 47 of the Rules, if the notice is a nullity and the time for noting an appeal has lapsed, the right to appeal must be deemed to have lapsed. Our criminal courts in practice do not strictly scrutinise grounds of appeal for compliance with the requirements of the Rules, and the Attorney-General's Office has, in the past, not paid particular attention to the format of grounds of appeal. Most grounds of appeal, though not complying with the Rules, have gone unchallenged ?, resulting in litigants not adhering strictly to them.

Held, further, that the if the first ground, which averred that the magistrate relied on unsafe evidence to convict, was meant to challenge the magistrate's findings of fact, it did not specifically say so. A ground that the court a quo misdirected itself in that it heavily relied on unsafe evidence which did not point to the guilt of the appellant is too general. It lacks precise detail of the points the appellant seeks to rely on. It is vague as it does not state whether the magistrate erred in law or fact. The second ground was also vague, and did not state whether the challenge was of law or fact.

Held, further, that the procedure governing the filing of notices of appeal is separate from that for heads of arguments. The two processes serve two ? different purposes and the processes are filed at different stages. Grounds of appeal are required at the initial stages of the appeal to inform all concerned of the appeal. Their purpose is to advise the trial magistrate of the points challenged on appeal. The magistrate's views and comments in turn are meant to assist the appeal court on the points challenged. It is difficult for a magistrate to make a meaningful response to an imprecise e ground of appeal. The respondent, similarly, needs to be sufficiently informed of the points the appellant wishes to take on appeal so that the respondent is capable of making a meaningful response. The appeal court should also be adequately advised of points on which its decision is required. Heads of argument, on the other hand, serve a completely different purpose, that of identifying arguments in opposition to, or in e support of, the appeal. It is inappropriate to file grounds of appeal that are vague on the premise that these will be bolstered up by the appellant's heads of argument.

The grounds of appeal were accordingly a nullity.