POPI v THE TRIAL MAGISTRATE N. MUPEIWA N.O and ANOTHER (49 of 2025) [2025] ZWMTHC 49 (9 September 2025)

2 HCMTJ49-25 HCMTC 108/25 LEVISON POPI versus THE TRIAL MAGISTRATE N. MUPEIWA N.O and PROSECUTOR GENERAL HIGH COURT OF ZIMBABWE SIZIBA J MUTARE, 16 July & 9 September 2025 CHAMBER APPLICATION E Mavuto, for the applicant T. L Katsiru, for the 2nd respondent SIZIBA J: This is an application for condonation of late filing of a review application. The application was filed on the 30th of May 2025. After hearing arguments from counsel on the 16th of July 2025, I gave an ex tempore judgment dismissing the application for lack of merit. I have been asked to provide reasons for my decision and they are the subject of this judgment. The applicant seeks to review the proceedings of the court a quo wherein he was convicted of the offence of attempted indecent assault in contravention of s 189(1) as read with s 66(1) of the Criminal Law (Codification and Reform) Act (Chapter 9:23). It is common cause that on 26 March 2025, the applicant’s appeal against his conviction was struck off the roll for being fatally defective. The applicant alleges that the first respondent being the Regional Magistrate who presided over the trial did not clearly explain to him his right to call a witness whose evidence was crucial to his case. This witness by the name Alice Nyanjowa is now deceased. That witness had deposed to a statement to the effect that she was also present in the room where the applicant allegedly indecently assaulted the complainant. This witness said that she did not observe anything concerning the allegations. The applicant’s explanation is that after his conviction he did not raise the issue of the failure to call this witness to testify at his trial as he was advised by inmates at prison that an appeal is limited to what is on the record. The issue of the witness in question came up when he showed the statement of the witness in question to his lawyer when he came to prison to appraise him of the outcome of his appeal. The length of delay between his conviction on 16 December 2024 to 30 May 2025 when this application was filed is about 5 months.The delay is not inordinate. The explanation for the delay is unreasonable. It does not make sense why the applicant did not seek advise from his lawyer concerning this witness’ evidence which was left out if indeed it was a pertinent issue to him. It defies logic why he would obtain advise at that early stage from his inmates and neglect to inquire from his lawyer when he was giving him instructions to note an appeal. It appears to me that the issue of this witness who did not testify came as an afterthought after his appeal had been struck off the roll. It then became convenient to pursue this application as another avenue to address his fate. A perusal of the record indicates in no uncertain terms that the applicant was advised by the trial magistrate of his right to adduce evidence on his own and also through his witnesses. He then testified and also called two witnesses. We are told that he had been given the statement of the deceased witness at the commencement of the trial. There is no reason then why he would not have called that witness. The trial magistrate would not have known which witnesses would be called by either party. The prosecutor had no duty or right to choose witnesses for the applicant. He called the other witnesses and left out the very witness that he now complains of having been left out. There is no irregularity in the record of proceedings. The application for review would be doomed to fail for lack of merit. It cannot succeed and equally this application cannot succeed. The applicant’s counsel properly conceded that the points in limine relating to the late filing of second respondent’s opposing papers and the form used in the opposing papers have no merit. There is generally no time limit set in the rules as to when opposing papers should be filed in a chamber application. The application is judge driven. There is also no format or form prescribed for the opposing papers and hence there is no requirement for a respondent to file an opposing affidavit. In the premises, the application was dismissed for lack of merit. Maposa & Ndomene, applicant’s legal practitioners National Prosecuting Authority, 2nd respondents’ legal practitioners 2 HCMTJ49-25 HCMTC 108/25 2 HCMTJ49-25 HCMTC 108/25 LEVISON POPI versus THE TRIAL MAGISTRATE N. MUPEIWA N.O and PROSECUTOR GENERAL HIGH COURT OF ZIMBABWE SIZIBA J MUTARE, 16 July & 9 September 2025 CHAMBER APPLICATION E Mavuto, for the applicant T. L Katsiru, for the 2nd respondent SIZIBA J: This is an application for condonation of late filing of a review application. The application was filed on the 30th of May 2025. After hearing arguments from counsel on the 16th of July 2025, I gave an ex tempore judgment dismissing the application for lack of merit. I have been asked to provide reasons for my decision and they are the subject of this judgment. The applicant seeks to review the proceedings of the court a quo wherein he was convicted of the offence of attempted indecent assault in contravention of s 189(1) as read with s 66(1) of the Criminal Law (Codification and Reform) Act (Chapter 9:23). It is common cause that on 26 March 2025, the applicant’s appeal against his conviction was struck off the roll for being fatally defective. The applicant alleges that the first respondent being the Regional Magistrate who presided over the trial did not clearly explain to him his right to call a witness whose evidence was crucial to his case. This witness by the name Alice Nyanjowa is now deceased. That witness had deposed to a statement to the effect that she was also present in the room where the applicant allegedly indecently assaulted the complainant. This witness said that she did not observe anything concerning the allegations. The applicant’s explanation is that after his conviction he did not raise the issue of the failure to call this witness to testify at his trial as he was advised by inmates at prison that an appeal is limited to what is on the record. The issue of the witness in question came up when he showed the statement of the witness in question to his lawyer when he came to prison to appraise him of the outcome of his appeal. The length of delay between his conviction on 16 December 2024 to 30 May 2025 when this application was filed is about 5 months.The delay is not inordinate. The explanation for the delay is unreasonable. It does not make sense why the applicant did not seek advise from his lawyer concerning this witness’ evidence which was left out if indeed it was a pertinent issue to him. It defies logic why he would obtain advise at that early stage from his inmates and neglect to inquire from his lawyer when he was giving him instructions to note an appeal. It appears to me that the issue of this witness who did not testify came as an afterthought after his appeal had been struck off the roll. It then became convenient to pursue this application as another avenue to address his fate. A perusal of the record indicates in no uncertain terms that the applicant was advised by the trial magistrate of his right to adduce evidence on his own and also through his witnesses. He then testified and also called two witnesses. We are told that he had been given the statement of the deceased witness at the commencement of the trial. There is no reason then why he would not have called that witness. The trial magistrate would not have known which witnesses would be called by either party. The prosecutor had no duty or right to choose witnesses for the applicant. He called the other witnesses and left out the very witness that he now complains of having been left out. There is no irregularity in the record of proceedings. The application for review would be doomed to fail for lack of merit. It cannot succeed and equally this application cannot succeed. The applicant’s counsel properly conceded that the points in limine relating to the late filing of second respondent’s opposing papers and the form used in the opposing papers have no merit. There is generally no time limit set in the rules as to when opposing papers should be filed in a chamber application. The application is judge driven. There is also no format or form prescribed for the opposing papers and hence there is no requirement for a respondent to file an opposing affidavit. In the premises, the application was dismissed for lack of merit. Maposa & Ndomene, applicant’s legal practitioners National Prosecuting Authority, 2nd respondents’ legal practitioners