KANGARADE versus MANGOSI N.O and THE PROSECUTOR GENERAL and THE REGISTRAR, HIGH COURT OF ZIMBABWE, HARARE and THE CLERK OF COURT, HARARE PROVINCIAL MAGISTRATES COURT (HCH1810/25) [2026] ZWHHC 29 (26 January 2026)

7 HH 64-26 HCH 1810/25 **Ex Tempore** WASHINGTON KANGARADE versus DENNIS MANGOSI N.O and THE PROSECUTOR GENERAL and THE REGISTRAR, HIGH COURT OF ZIMBABWE, HARARE and THE CLERK OF COURT, HARARE PROVINCIAL MAGISTRATES COURT HIGH COURT OF ZIMBABWE **DEME J** HARARE, 11 and 28 November 2025, 11 December 2025, 22 & 26 January 2026. **Opposed application** _TL Mapuranga_ for the applicant _F Kachidza_ for the 2nd respondent No appearance for the 1st, 3rd and 4th Respondents. **DEME J:** The Applicant approached this court with a composite application for condonation and review. More specifically, the Applicant is seeking the following relief: “1. The application for condonation be and is hereby granted with no order as to costs. 2. The application for review be and is hereby granted with no order as to costs. 3. The decision of the 1st respondent to issue and confirm the warrant of arrest under CRB453/13 be and is hereby set aside. 4. The 1st respondent’s decision dated the 24th May 2024 ordering the applicant to serve a nine-year imprisonment sentence be and is hereby set aside. 5. The applicant be and is hereby released unconditionally from prison forthwith. 6. Each party to bear its own costs.” The Applicant relied upon the following grounds for review: “5. That the ruling made by the 1st Respondent is so outrageous in its defiance of logic that no reasonable court applying its mind to the exception raised would have arrived at such a decision in that: 5.1 The 1st Respondent’s decision to issue and confirm a warrant of arrest against the Applicant was grossly irregular since there was no proof that the appeal was dismissed due to the failure by the Applicant to prosecute his appeal. 5.2 The 1st Respondent acted without jurisdiction in that the warrant of arrest of this nature, was supposed to be issued by the Clerk of Court following correspondence from the Registrar of the High Court after failure by the Applicant to adhere to the directives of the Clerk of Court and/or the Registrar of High Court. 3. The 1st Respondent irregularly issued and confirmed the warrant of arrest in circumstances whereby the 2nd Respondent could not furnish the proof that the Applicant had neglected to prosecute his appeal specifically in that there was no evidence at all showing that the Applicant failed to pay costs for the preparation of the record after being called upon to do so by the Clerk of Court. 4. The 1st Respondent grossly erred in finding that there was no appeal pending at the High Court in circumstances whereby there was no evidence that: 1. The missing record (which is the rationale behind the appeal not being heard) was located. 2. The appeal was dismissed. The Court Order to that effect was not produced by the 2nd Respondent yet the 1st Respondent went further to declare the appeal dismissed. 3. The Applicant was ever (sic) called to inspect as well as costs of the record. The 2nd Respondent if asked, even at the moment, as to the amount which was supposed to be paid by the Applicant, it does not even know.” The Applicant was convicted of contravening the provisions of the Parks and Wildlife Act (_Chapter 20:14_] in 2013. There are no further details of the exact charge of the Applicant from the record as there are no State papers. He was sentenced to nine years. The Applicant lodged an appeal with this court in case number CA364/13. The Applicant, pending appeal, successfully applied for bail. In 2024, the Applicant was rearrested following the issuance of the warrant of arrest by the 1st Respondent. There were allegations that the Applicant failed to pay costs for the preparation of appeal record which saw the appeal being dismissed. The Applicant appeared before the 1st Respondent seeking cancellation of the warrant of arrest. The application was dismissed which saw the Applicant approaching the court with the present application. It is the Applicant’s averment that he failed to file an application for review due to funding challenges. The application was opposed by the 2nd Respondent on various grounds. According to the 2nd Respondent, the Applicant failed to tender evidence that he was prosecuting his matter. The 2nd Respondent also argued that the Applicant ought to have sought reconstruction of the record. The other option available, according to the 2nd Respondent, is that the Applicant could have applied for reinstatement of the appeal. On three occasions, I directed the 3rd and 4th Respondents to produce the record of proceedings for the benefit of the court. The 3rd and 4th Respondents failed to produce the record of proceedings in this matter. The 3rd Respondent’s representatives appeared in my chambers and explained that they are not in possession of the record. They further advised that the 4th Respondent also indicated that there is no record at the court _a quo_. On the final hearing day, Adv Mapuranga submitted that the proposed course of action is to have the warrant of arrest cancelled which will see the Applicant being released. He also motivated the court to amend the relief sought. In terms of the amendments, Adv Mapuranga prayed that the proceedings at the court _a_ quo be quashed since the record of proceedings got lost and can no longer be reconstructed. He also prayed that the 2nd Respondent must be allowed to have a trial _de novo_ if she so wishes. Adv Mapuranga moved for an amendment requiring the trial court to take into account the period the Applicant spent in prison if the Applicant is convicted. More particularly, the Applicant, through amendment, is praying for the following relief: “1. The application for condonation for late filing of a review be and is hereby granted. 2. The application for review be and is hereby granted 3. The decision of the first respondent to issue and confirm the warrant of arrest under CRB1147/13 be and is hereby set aside. 4. The applicant shall be released from prison forthwith. 5. The proceedings against the applicant in the case of _State v Washington Kangarade_ concluded under case No. CRB1147/13. 6. A trial de novo be conducted, the decision to commence a prosecution afresh being left to the discretion of the Prosecutor General. 7. In the event that a trial de novo is instituted by the Prosecutor General, and the applicant is convicted, the trial court shall take into account the period which the applicant has spent in prison as a serving prisoner as part of the sentence already served. 8. There shall be no order as to costs.” Adv _Mapuranga_ referred the court to the case of _Chihera v The State_ 1. The amendment was not opposed by the 2nd Respondent. The issue that arises for determination is whether the application, as amended, is merited. It is clear that there is no hope that the record may be located. From the evidence placed before my attention by the representatives of the 3rd Respondent, it is apparent that there is no hope of reconstructing the record. It is also apparent from the matter before me that the application for cancellation of the warrant of arrest at the court _a quo_ was finalized in the absence of the record of proceedings. The matter at the court _a quo_ was postponed on several occasions on the basis that the record of proceedings may finally be availed before the court _a quo_. Despite numerous postponements, the record of proceedings could not be located. This negatively impacts the Applicant’s right to a fair trial. If the record cannot be produced or reconstructed, it is just as good as if there were no proceedings that happened at the court _a quo_. The Applicant will not be able to prosecute his appeal. The option of application for reinstatement, which had been suggested by the 2nd Respondent in their initial submissions, will be a futile exercise in the absence of the record. In the case of _Chihera_ _supra_ Chitapi J elegantly remarked as follows: “The question which presents itself is: what should the court do in such circumstances where the record is lost in whole and cannot be retrieved or reconstructed. In the Kenyan case of _Benjamin Onganya_ _and Anor_ v _Regina_ [2013] eKLR cited in the _Bonuah_ v _Republic_ case (supra), it is stated: “where the appeal could not be heard because the court records had been officially destroyed; the court once again approved the standard principles governing lost records in these terms: “In such a situation as this, the Court must try to hold the scales of justice and in doing so must consider all the circumstances under which the loss has occurred. Who occasioned the loss of all the files? Is the appellant responsible? Should he benefit from his own mischief and illegality? In the final analysis the paramount consideration must be whether the order proposed to be made is the one which serves the best interest of justice. An acquittal should not follow as a matter of course where a file has disappeared. After all a person, like the appellant, has lost the benefit of the presumption of innocence given to him by s 77 (2) (a) of the Constitution, he having been convicted by a competent court and on appeal the burden is on him to show that the court which convicted him did so in error. Thus, the loss of the files and proceedings may deprive him of ability to discharge that burden, but, it by no means follows that he must of necessity be treated as innocent and automatically acquitted. The interests of justice as a whole must be considered.” The applicant in _casu_ is not before this court on bail but is fighting to obtain the record of proceedings so that he prosecutes his intended appeal. This notwithstanding, the principles enunciated as quoted in the _Benuah_ judgment are relevant. In the final analysis, what really informs the action which the court will take dictated by what the interests of justice in any given case. There is therefore no one size fits all approach. Put differently, there simply is no template Further decisions of the South African Courts are also cited with approval in the _Bonuah_ judgment notably, _S_ v _van Standen_ 2008 (2) SACR 62, where it is stated: “When an accused has the right to appeal and a missing or incomplete record makes it impossible to consider and adjudicate such appeal, the conviction or sentence will often be set aside……. The mere fact that the record of proceedings might be lost or incomplete would not, however, automatically entitle an accused to the setting aside of a conviction or sentence. Such relief will only be granted where a valid and enforceable right of appeal is frustrated by the fact that the record is lost or destroyed and cannot be reconstructed (See _SVK: supra_ , at 1921 – 1946, _S_ v _Ntantiso and Ors 1997_ (2) SACR 302 (W) and _S_ v _Leslie 2000_ (1) SACR 347 (W) at 353 D – E) The court explained the philosophy underlying the grant of relief thus: “…. The state is burdened with the responsibility of keeping proper records of trial proceedings and that an accused’s right to a fair trial (and therefore also to the right of appeal) should not be frustrated by the State’s failure to do so (see _Zandi, supra_ at 243 (1) – 244 (b) and _S_ v _S_ 1995 (2) SACR 420 T at 42 b” The challenge which also confronts the court in regard to an appropriate order to make is that, in the absence of the record, there are no proceedings to review or to be appealed against. The affidavit by the Clerk of Court shows that the record was sent to this court on appeal in 2004 and duly received. The Registrar acknowledged that indeed there existed appeal number CA 42/04 in relation to the applicant. There is now no trace of the records. The applicant states that he has made several applications to this court to intercede so that he is furnished with the record to no avail. This was not denied. The inevitable conclusion is that the system has been unfair to the applicant. However, I question the reasonableness of the failure by the applicant to have applied for quashing of his conviction and sentence for non- availability of the record earlier. Be that as it may, the system too should have managed the record and appeal in a manner which guarded against loss of records. In my determination, I must make it clear that the circumstances of each individual case where a record of proceedings has been lost or destroyed will determine how the court or judge will dispose of the matter. There cannot be a set precedent on the order which the court should give where a record is either lost or cannot be reconstructed. Circumstances may well be different. The record of the accused’s conviction was for armed robbery for which he was sentenced to 30 years imprisonment leaving an effective sentence of 20 years. The 16 years he has served, as correctly pointed out by the State counsel, equates to about three quarters of the sentence in respect of which he seeks to appeal. There is no immediate indication that the record of appeal can be reconstructed. That option is therefore an impossibility or impracticability. At the same time, much as it is unfortunate to order an acquittal would not serve the ends of justice. The appropriate order will be to leave it to the Prosecutor in his discretion to institute a fresh trial if so minded.” I do subscribe to the views of the court in Chihera _supra._ After being ordered to produce the record, the 3rd and 4th Respondents failed to produce the record. In light of this, it is apparent that the reconstruction of the record is impossible. This is an area where the relevant authorities must consider being governed by the Rules in order to have a uniform way of dealing with the present situation. Thus, I recommend that there be an appropriate amendment of the rules in this connection. In the premises, it is ordered as follows: 1. The application for condonation for late filing of a review be and is hereby granted. 2. The application for review be and is hereby granted. 3. The decision of the first respondent to issue and confirm the warrant of arrest under CRB1147/13 be and is hereby set aside. 4. The applicant shall be released from prison forthwith. 5. The proceedings against the applicant in the case of _State v Washington Kangarade_ concluded under case No. CRB1147/13 be and are hereby quashed. 6. A trial de novo be conducted, the decision to commence a prosecution afresh being left to the discretion of the Prosecutor General. 7. In the event that a trial de novo is instituted by the Prosecutor General, and the applicant is convicted, the trial court shall take into account the period which the applicant has spent in prison as a serving prisoner as part of the sentence already served. DEME J………………………………… _Rubaya Chatambudza, Applicant’s Legal Practitioners_ _National Prosecuting Authority_ , respondent’s legal practitioners 1 HH118/20. 7