Jabulani v State (54 of 2025) [2025] ZWMTHC 54 (25 September 2025)

3 HCMTJ54/25 HCMTCR1516/25 GANNOCK JABULANI versus THE STATE HIGH COURT OF ZIMBABWE SIZIBA J MUTARE, 25 September 2025 CHAMBER APPLICATION FOR CONDONATION AND LEAVE TO APPEAL Applicant in person M. Musarurwa, for the respondent SIZIBA J: INTRODUCTORY BACKGROUND The applicant is a self – actor who is keen to challenge his conviction on six counts of rape and another count of kidnapping as well as an effective sentence of thirty - seven years by the Regional Magistrate in Chipinge to the highest court of appeal in this country. The total sentence for his crimes was forty - five years of imprisonment and the eight years were suspended on usual conditions of good behavior. He appears to have been sentenced on the 26th of February 2019. Magistrates are called upon to indicate clear dates on the face of their judgments and reasons for sentence or sentencing judgments for purposes of clarity as such dates may be decisive in applications of this nature and also on the validity of Notices of Appeals in both civil and criminal matters. The date stamp of the Clerk of Court may not always be accurate in guiding the parties and the court on this aspect. On the 5th of December 2024, this court dismissed the applicant’s application for condonation of late noting of appeal to this court on the basis that there were no prospects of success in the intended appeal. This was under case number HCMTCR1994/24. On the 22nd of January 2025, he requested for reasons for this court’s decision and he was informed by the Registrar that the reasons appear on the face of the very order that dismissed his application. Before filing the present application, the applicant sought leave to appeal to the Supreme Court out of the required twelve - day timeline which application was struck off the roll for not being properly before the court. His present application is headed ‘Criminal Chamber application for condonation of late noting of an appeal and leave to appeal in the Supreme Court in terms of rule 94 (5) of the High Court Rules, 2021’. It was filed on the 15th of September 2025. What comes out very clearly from his papers is that he is seeking to be condoned for the late noting of leave to appeal to the Supreme Court as well as leave to appeal to the Supreme Court. He has again not complied with the rules of this court because such an application cannot be made after the expiry of twenty - four days. He has also failed to attach the application for leave to appeal as well as a draft Notice of Appeal to the Supreme Court. Since he is a self - actor, I shall deal with the substance of the application in the interests of finality in litigation. In an application of this nature, the court must consider the extent of non - compliance with the rules, the explanation for non - compliance with the rules, the balance of convenience and the prospects of success. See Mhora v Mhora ZCC 5/22. THE EXTENT OF NON - COMPLIANCE AND THE EXPLANATION THERETO The applicant’s explanation is that he was waiting to be furnished with the reasons for the dismissal of his application for condonation of late noting of the appeal before this court. He thought that he had to wait for detailed reasons or a full judgment in that aspect before he could seek leave to appeal. His letter to the Registrar proves that he indeed made such efforts to request for the reasons for judgment. The applicant also bemoans the fact that he had limited resources or facilities for the e- filing system in prison. Well, this would be a surprise to this court if it is true because all courts now have e- filing facilities. The prison authorities are expected to assist prisoners to access these facilities. All the same, the applicant’s explanation is reasonable and he cannot be turned back in his eight - month delay in light of this explanation without the court having discredited him on other requirements. APPLICANT’S GROUNDS OF COMPLAINT The applicant’s grounds of appeal against the decision of the court a quo can be gleaned from paras 9.0 to 10.3 of his founding affidavit. These complaints are mixed up as some of them are being made against the trial court while some of them are being made against this court in dismissing applicant’s application. Some of the complaints are not clear and precise. The first complaint in terms of para 9.0 is that he was convicted under circumstances that were not admissible for a court to safely convict. This complaint is vague. The second complaint in terms of para 9.1 is that it was common cause that sexual intercourse took place but the issue was whether it was consensual or not but the court a quo relied on evidence that was not consistent to convict. The third complaint in terms of para 10.0 is that the High Court in its ruling on condonation failed to note that the matter was not timeously reported to the police. The complainant was allegedly kidnapped in front of her sister - in law and the grinding meal operator but no report was made for three days. The fourth complaint in terms of para 10.1 is that it was alleged that on 25 December 2018, the complainant managed to escape but the report to the police was made on the 11th of January 2019 which was over a period of seventeen days. The fifth ground of complaint in terms of para 10.2 is that the report was allegedly made to a corrupt police officer at Mabheka Police Station but such police officer was not summoned to testify and no charge was laid on the said officer. The sixth ground in terms of para 10.3 is a repetition of the complaint about late reporting of the crime. The complaint against the sentence is that it was so severe as to induce a sense of shock. The trial magistrate is being accused of having failed to consider that the applicant was a first - time offender who should be kept out of prison, that he had a family, that the complainant did not fall pregnant or contract a sexually transmitted disease. THE PROSPECTS OF SUCCESS AND THE BALANCE OF CONVENIENCE The applicant was charged with six counts of rape contrary to section 65 (1) of the Criminal Law (Codification and Reform) Act (Chapter 9:23) and one count of kidnapping contrary to section 93 (1) of the Criminal Law (Codification and Reform) Act (Chapter 9:23). The complainant was the same on all the counts. She was a young woman aged 23 years. The offences occurred at Muturikwa Village under Chief Mutema in Chipinge. It is common cause that the complainant was at the applicant’s homestead from 23 December 2018 to the 25th of December 2018. It is also common cause that the two engaged in sexual intercourse six times. What was contested was whether the complainant consented or not. The applicant’s case was that the complainant was his girlfriend who had come on her own volition at his homestead whereas the State contended that she was kidnapped and raped. The complainant’s evidence which was found to be true by the trial court was that on the 2nd of December 2018, she met the applicant at Rottleshoek Business Centre. The applicant proposed love to her and she declined. The applicant protested and told her that such could not happen to him. On the 23rd of December 2018, the complainant and her sister - in law were sent by her mother to Dzvene grinding meal to buy maize and also to have it ground. The applicant accosted her and said that he had finally caught up with her. He ordered her to sit down and she refused. The applicant grabbed her by her hand and forcibly pulled her out of the grinding meal building. He pulled her away. Her sister - in law pulled the complainant by hand, urging her not to go with the applicant. The applicant took out a machete from his satchel and started hitting the complainant with the flat part of the machete. He cut her three fingers with the machete and she started bleeding profusely. He ordered her to go with him as he was threatening her with the machete and she complied. The applicant threatened everyone who tried to rescue the complainant and everyone at that scene backed off, leaving the complainant to applicant’s shenanigans. The two walked a journey of about two hours on foot through the bush as the applicant avoided passing through people’s homes as it was during the day. When they got to his homestead, he ordered the complainant to get inside his house and to remove her clothes. She refused to comply. He forced her to remove her underwear by threatening to stab her to death with an okapi knife. He removed all her clothes and he had sexual intercourse with her. He then relaxed a bit and raped her again at knife point. He then fell asleep. At around 0100 hours, the complainant escaped and went to the homestead of one Mrs Muturikwa and narrated her ordeal. Early that morning as she was having breakfast there, the applicant arrived and threatened them with a machete. The complainant’s attempt to hide around was unsuccessful. She was again recaptured by the applicant and taken back to his homestead. The applicant was in the company of a young man who had a satchel. It was now the 24th of December 2018. The young man was ordered by the applicant to take photographs of the complainant standing with the applicant holding beer. The applicant inflicted four lashes on complainant’s back with a guava stick. He said that she will spend Christmas crawling at his place of residence. He also said that the photographs that he took and which he sent on Watts up platform would exonerate him at law. He also bragged that he had a son in law at the police station who would warn him of any impending arrest. During the night he had sexual intercourse with the complainant. He also quenched his sexual desires upon the complainant twice in the morning of the 25th of December at 0200 hours and 0400 hours. At around 0700 hours on that day, a certain man came and took the applicant to some Christmas celebrations. She refused to go with him and after they had gone, the complainant took the chance to escape. She travelled the long journey to her place of residence through the bush as she feared that the applicant could pursue her as he had done before. In the meanwhile, the complainant’s mother Charity Makuyana testified as well that on the very day when the complainant was captured, she was called by complainant’s sister -in law and told of her fate. She tried in vain to look for the complainant. She proceeded to lay a report at Mabheka Police Station to a member of the police Special Constabulary who said that he could not arrest the applicant since he was his brother - in law. He chased her away and said that her report was nonsensical. She proceeded to Chipinge Police Station and she was referred back to Mabheka Police Station where she was reprimanded for having first gone to Chipinge Police Station. She went home and found the complainant who narrated her ordeal in the hands of the applicant. She kept the complainant locked up at home for fear that the applicant could trek her again. On another day, the applicant came over to their home and the complainant fled and sought refuge between her two parents. He was in possession of his satchel and he threatened to return and kill the whole family. The complainant and her mother walked the 20 kilometers to make a report at Chipinge Police Station. The police failed to locate the applicant. On the day of the applicant’s arrest, he came over again at complainant’s home with the intention of executing his threat of killing the whole family. He was spotted by Kudakwashe Jambaya, the complainant’s brother whilst hiding by the maize field in the early hours of the evening. He attempted to kidnap Kudakwashe. He shouted aloud that he would take the complainant’s mother if the complainant was not there. Kudakwashe and the neighbor Richman Penesera testified in the court a quo the difficulty they encountered in immobilizing the applicant by shooting him with an arrow on his rib which rendered him immobile. It was a team of three brave men who included complainant’s uncle who also got injured in the process as the applicant fought with them using his machete. The complainant’s mother hired a car to ferry the applicant to the hospital via the police station. The applicant’s case was a failure. It was full of contradictions. He contradicted himself in first denying that he was ever at the grinding meal on the 23rd of December 2018 but he failed to challenge the evidence of Ordien Chukwa the grinding meal operator on this fact. Under cross examination by the prosecutor, he conceded that he was at the grinding meal and that he had assaulted the complainant. He said that he was angry. This was all inconsistent with love. He failed to explain why he would have been sending watts up messages to the complainant at the time when he was with her at his homestead. It clearly appeared that he had merely tempered with his phone in taking photographs and sending watts up messages just to create a defense and shield his crime. His own defense witness who was his sister denied having bought clothes for the complainant as alleged by the applicant. The complainant maintained that she had not seen any female figure at the applicant’s homestead. She also denied having accompanied the applicant to any shops. The applicant’s version that he had gone to pay lobola on the day of his arrest and capture at the complainant’s home was an insult to the trial court’s intelligence. The trial court commented that the applicant’s defense was a dog’s breakfast. It was unaccounted how one could come to pay lobola whilst armed with a machete and a sharpened screw driver. He surely possessed weapons of battle rather which are consistent with what he then did there. There is no evidence that he had any money on his person for the purpose of paying lobola upon his arrest and neither was he driving any cattle or goats for such purpose. He was a one - man delegation in the twilight of the night. There was clearly nothing of that sort. The court a quo properly concluded that the police report was made at the earliest possible opportunity by the complainant’s mother to a corrupt police officer at Mabheka Police Station who shielded the applicant from arrest. The complainant herself could not have reported the crimes whilst she was under capture. The allegation that the complainant reported the applicant in order to serve her marriage was proved to be a lie. In sentencing the applicant, the court a quo lumped the six counts of rape into two categories and also sentenced him for the crime of kidnapping. The crimes that the applicant committed were pre - meditated. He acted with impunity. He was bragging to be above the law. He treated the complainant in an inhuman manner. He stripped her of all her dignity as a human being. The irresponsible and violent crimes that are perpetrated by use of machetes in this country are now a major concern to the courts. The applicant captured an innocent and defenseless woman in broad daylight and force – marched for two hours in the bush in order to quench his sexual desires upon her without her consent. When she escaped in the dead of night, she was again recaptured like a domesticated animal. He disrespected the complainant’s parents and brothers as well as her neighbors. He became a terror to that home and no one who was at the grinding meal could restrain him. The law enforcement agents failed this family until the complainant’s brother, her uncle and a neighbor braved the storm and captured the applicant. A non - custodial sentence that he seeks on appeal is not fit for the crimes that he has committed. He was properly removed from the society and he remains a danger if released on appeal before completion of this sentence which fits both the crimes and the offender. CONCLUSION I do not find any error in the proceedings of the court a quo. There are no prospects of success in the appeal against the dismissal of the application for condonation of late noting of an appeal to this court for reasons articulated above. There are no prospects of success in the intended appeal to the Supreme Court. For this reason therefore, this application is hereby dismissed for lack of merit. National Prosecuting Authority, respondents’ legal practitioners 3 HCMTJ54/25 HCMTCR1516/25 3 HCMTJ54/25 HCMTCR1516/25 GANNOCK JABULANI versus THE STATE HIGH COURT OF ZIMBABWE SIZIBA J MUTARE, 25 September 2025 CHAMBER APPLICATION FOR CONDONATION AND LEAVE TO APPEAL Applicant in person M. Musarurwa, for the respondent SIZIBA J: INTRODUCTORY BACKGROUND The applicant is a self – actor who is keen to challenge his conviction on six counts of rape and another count of kidnapping as well as an effective sentence of thirty - seven years by the Regional Magistrate in Chipinge to the highest court of appeal in this country. The total sentence for his crimes was forty - five years of imprisonment and the eight years were suspended on usual conditions of good behavior. He appears to have been sentenced on the 26th of February 2019. Magistrates are called upon to indicate clear dates on the face of their judgments and reasons for sentence or sentencing judgments for purposes of clarity as such dates may be decisive in applications of this nature and also on the validity of Notices of Appeals in both civil and criminal matters. The date stamp of the Clerk of Court may not always be accurate in guiding the parties and the court on this aspect. On the 5th of December 2024, this court dismissed the applicant’s application for condonation of late noting of appeal to this court on the basis that there were no prospects of success in the intended appeal. This was under case number HCMTCR1994/24. On the 22nd of January 2025, he requested for reasons for this court’s decision and he was informed by the Registrar that the reasons appear on the face of the very order that dismissed his application. Before filing the present application, the applicant sought leave to appeal to the Supreme Court out of the required twelve - day timeline which application was struck off the roll for not being properly before the court. His present application is headed ‘Criminal Chamber application for condonation of late noting of an appeal and leave to appeal in the Supreme Court in terms of rule 94 (5) of the High Court Rules, 2021’. It was filed on the 15th of September 2025. What comes out very clearly from his papers is that he is seeking to be condoned for the late noting of leave to appeal to the Supreme Court as well as leave to appeal to the Supreme Court. He has again not complied with the rules of this court because such an application cannot be made after the expiry of twenty - four days. He has also failed to attach the application for leave to appeal as well as a draft Notice of Appeal to the Supreme Court. Since he is a self - actor, I shall deal with the substance of the application in the interests of finality in litigation. In an application of this nature, the court must consider the extent of non - compliance with the rules, the explanation for non - compliance with the rules, the balance of convenience and the prospects of success. See Mhora v Mhora ZCC 5/22. THE EXTENT OF NON - COMPLIANCE AND THE EXPLANATION THERETO The applicant’s explanation is that he was waiting to be furnished with the reasons for the dismissal of his application for condonation of late noting of the appeal before this court. He thought that he had to wait for detailed reasons or a full judgment in that aspect before he could seek leave to appeal. His letter to the Registrar proves that he indeed made such efforts to request for the reasons for judgment. The applicant also bemoans the fact that he had limited resources or facilities for the e- filing system in prison. Well, this would be a surprise to this court if it is true because all courts now have e- filing facilities. The prison authorities are expected to assist prisoners to access these facilities. All the same, the applicant’s explanation is reasonable and he cannot be turned back in his eight - month delay in light of this explanation without the court having discredited him on other requirements. APPLICANT’S GROUNDS OF COMPLAINT The applicant’s grounds of appeal against the decision of the court a quo can be gleaned from paras 9.0 to 10.3 of his founding affidavit. These complaints are mixed up as some of them are being made against the trial court while some of them are being made against this court in dismissing applicant’s application. Some of the complaints are not clear and precise. The first complaint in terms of para 9.0 is that he was convicted under circumstances that were not admissible for a court to safely convict. This complaint is vague. The second complaint in terms of para 9.1 is that it was common cause that sexual intercourse took place but the issue was whether it was consensual or not but the court a quo relied on evidence that was not consistent to convict. The third complaint in terms of para 10.0 is that the High Court in its ruling on condonation failed to note that the matter was not timeously reported to the police. The complainant was allegedly kidnapped in front of her sister - in law and the grinding meal operator but no report was made for three days. The fourth complaint in terms of para 10.1 is that it was alleged that on 25 December 2018, the complainant managed to escape but the report to the police was made on the 11th of January 2019 which was over a period of seventeen days. The fifth ground of complaint in terms of para 10.2 is that the report was allegedly made to a corrupt police officer at Mabheka Police Station but such police officer was not summoned to testify and no charge was laid on the said officer. The sixth ground in terms of para 10.3 is a repetition of the complaint about late reporting of the crime. The complaint against the sentence is that it was so severe as to induce a sense of shock. The trial magistrate is being accused of having failed to consider that the applicant was a first - time offender who should be kept out of prison, that he had a family, that the complainant did not fall pregnant or contract a sexually transmitted disease. THE PROSPECTS OF SUCCESS AND THE BALANCE OF CONVENIENCE The applicant was charged with six counts of rape contrary to section 65 (1) of the Criminal Law (Codification and Reform) Act (Chapter 9:23) and one count of kidnapping contrary to section 93 (1) of the Criminal Law (Codification and Reform) Act (Chapter 9:23). The complainant was the same on all the counts. She was a young woman aged 23 years. The offences occurred at Muturikwa Village under Chief Mutema in Chipinge. It is common cause that the complainant was at the applicant’s homestead from 23 December 2018 to the 25th of December 2018. It is also common cause that the two engaged in sexual intercourse six times. What was contested was whether the complainant consented or not. The applicant’s case was that the complainant was his girlfriend who had come on her own volition at his homestead whereas the State contended that she was kidnapped and raped. The complainant’s evidence which was found to be true by the trial court was that on the 2nd of December 2018, she met the applicant at Rottleshoek Business Centre. The applicant proposed love to her and she declined. The applicant protested and told her that such could not happen to him. On the 23rd of December 2018, the complainant and her sister - in law were sent by her mother to Dzvene grinding meal to buy maize and also to have it ground. The applicant accosted her and said that he had finally caught up with her. He ordered her to sit down and she refused. The applicant grabbed her by her hand and forcibly pulled her out of the grinding meal building. He pulled her away. Her sister - in law pulled the complainant by hand, urging her not to go with the applicant. The applicant took out a machete from his satchel and started hitting the complainant with the flat part of the machete. He cut her three fingers with the machete and she started bleeding profusely. He ordered her to go with him as he was threatening her with the machete and she complied. The applicant threatened everyone who tried to rescue the complainant and everyone at that scene backed off, leaving the complainant to applicant’s shenanigans. The two walked a journey of about two hours on foot through the bush as the applicant avoided passing through people’s homes as it was during the day. When they got to his homestead, he ordered the complainant to get inside his house and to remove her clothes. She refused to comply. He forced her to remove her underwear by threatening to stab her to death with an okapi knife. He removed all her clothes and he had sexual intercourse with her. He then relaxed a bit and raped her again at knife point. He then fell asleep. At around 0100 hours, the complainant escaped and went to the homestead of one Mrs Muturikwa and narrated her ordeal. Early that morning as she was having breakfast there, the applicant arrived and threatened them with a machete. The complainant’s attempt to hide around was unsuccessful. She was again recaptured by the applicant and taken back to his homestead. The applicant was in the company of a young man who had a satchel. It was now the 24th of December 2018. The young man was ordered by the applicant to take photographs of the complainant standing with the applicant holding beer. The applicant inflicted four lashes on complainant’s back with a guava stick. He said that she will spend Christmas crawling at his place of residence. He also said that the photographs that he took and which he sent on Watts up platform would exonerate him at law. He also bragged that he had a son in law at the police station who would warn him of any impending arrest. During the night he had sexual intercourse with the complainant. He also quenched his sexual desires upon the complainant twice in the morning of the 25th of December at 0200 hours and 0400 hours. At around 0700 hours on that day, a certain man came and took the applicant to some Christmas celebrations. She refused to go with him and after they had gone, the complainant took the chance to escape. She travelled the long journey to her place of residence through the bush as she feared that the applicant could pursue her as he had done before. In the meanwhile, the complainant’s mother Charity Makuyana testified as well that on the very day when the complainant was captured, she was called by complainant’s sister -in law and told of her fate. She tried in vain to look for the complainant. She proceeded to lay a report at Mabheka Police Station to a member of the police Special Constabulary who said that he could not arrest the applicant since he was his brother - in law. He chased her away and said that her report was nonsensical. She proceeded to Chipinge Police Station and she was referred back to Mabheka Police Station where she was reprimanded for having first gone to Chipinge Police Station. She went home and found the complainant who narrated her ordeal in the hands of the applicant. She kept the complainant locked up at home for fear that the applicant could trek her again. On another day, the applicant came over to their home and the complainant fled and sought refuge between her two parents. He was in possession of his satchel and he threatened to return and kill the whole family. The complainant and her mother walked the 20 kilometers to make a report at Chipinge Police Station. The police failed to locate the applicant. On the day of the applicant’s arrest, he came over again at complainant’s home with the intention of executing his threat of killing the whole family. He was spotted by Kudakwashe Jambaya, the complainant’s brother whilst hiding by the maize field in the early hours of the evening. He attempted to kidnap Kudakwashe. He shouted aloud that he would take the complainant’s mother if the complainant was not there. Kudakwashe and the neighbor Richman Penesera testified in the court a quo the difficulty they encountered in immobilizing the applicant by shooting him with an arrow on his rib which rendered him immobile. It was a team of three brave men who included complainant’s uncle who also got injured in the process as the applicant fought with them using his machete. The complainant’s mother hired a car to ferry the applicant to the hospital via the police station. The applicant’s case was a failure. It was full of contradictions. He contradicted himself in first denying that he was ever at the grinding meal on the 23rd of December 2018 but he failed to challenge the evidence of Ordien Chukwa the grinding meal operator on this fact. Under cross examination by the prosecutor, he conceded that he was at the grinding meal and that he had assaulted the complainant. He said that he was angry. This was all inconsistent with love. He failed to explain why he would have been sending watts up messages to the complainant at the time when he was with her at his homestead. It clearly appeared that he had merely tempered with his phone in taking photographs and sending watts up messages just to create a defense and shield his crime. His own defense witness who was his sister denied having bought clothes for the complainant as alleged by the applicant. The complainant maintained that she had not seen any female figure at the applicant’s homestead. She also denied having accompanied the applicant to any shops. The applicant’s version that he had gone to pay lobola on the day of his arrest and capture at the complainant’s home was an insult to the trial court’s intelligence. The trial court commented that the applicant’s defense was a dog’s breakfast. It was unaccounted how one could come to pay lobola whilst armed with a machete and a sharpened screw driver. He surely possessed weapons of battle rather which are consistent with what he then did there. There is no evidence that he had any money on his person for the purpose of paying lobola upon his arrest and neither was he driving any cattle or goats for such purpose. He was a one - man delegation in the twilight of the night. There was clearly nothing of that sort. The court a quo properly concluded that the police report was made at the earliest possible opportunity by the complainant’s mother to a corrupt police officer at Mabheka Police Station who shielded the applicant from arrest. The complainant herself could not have reported the crimes whilst she was under capture. The allegation that the complainant reported the applicant in order to serve her marriage was proved to be a lie. In sentencing the applicant, the court a quo lumped the six counts of rape into two categories and also sentenced him for the crime of kidnapping. The crimes that the applicant committed were pre - meditated. He acted with impunity. He was bragging to be above the law. He treated the complainant in an inhuman manner. He stripped her of all her dignity as a human being. The irresponsible and violent crimes that are perpetrated by use of machetes in this country are now a major concern to the courts. The applicant captured an innocent and defenseless woman in broad daylight and force – marched for two hours in the bush in order to quench his sexual desires upon her without her consent. When she escaped in the dead of night, she was again recaptured like a domesticated animal. He disrespected the complainant’s parents and brothers as well as her neighbors. He became a terror to that home and no one who was at the grinding meal could restrain him. The law enforcement agents failed this family until the complainant’s brother, her uncle and a neighbor braved the storm and captured the applicant. A non - custodial sentence that he seeks on appeal is not fit for the crimes that he has committed. He was properly removed from the society and he remains a danger if released on appeal before completion of this sentence which fits both the crimes and the offender. CONCLUSION I do not find any error in the proceedings of the court a quo. There are no prospects of success in the appeal against the dismissal of the application for condonation of late noting of an appeal to this court for reasons articulated above. There are no prospects of success in the intended appeal to the Supreme Court. For this reason therefore, this application is hereby dismissed for lack of merit. National Prosecuting Authority, respondents’ legal practitioners