MASHIRI v STATE (47 of 2025) [2025] ZWMTHC 47 (19 August 2025)

2 HCMTJ 47/25 HCMTCR 1253/25 ADMIRE MASHIRI versus THE STATE HIGH COURT OF ZIMBABWE SIZIBA J MUTARE, 19 August 2025 CHAMBER APPLICATION Applicant in person J. Matsikidze, for the respondent SIZIBA J: On the 30th of July 2025, the applicant filed this application seeking to reinstate case number HCMTCR 935/25 which case was an application for leave to appeal to the Supreme Court against this court’s dismissal of his application for condonation of late noting of appeal to this court under HC-Con 13/23. Case number HCMTCR 935/25 was struck off the roll on 4 July 2025. The applicant’s other application for leave to appeal to the Supreme Court was struck off the roll on 12 February 2025 under HCMTCR 64/25. The applicant is a self actor who is currently serving a prison term at Rusape Remand Prison. It appears that the applicant’s applications for leave to appeal to the Supreme Court have been turned down for reasons of failing to attach or provide reasons for dismissal of his application for condonation and also for being out of time. The record shows that he did request for the reasons from the Registrar of this court and he was supplied with an order of this court which showed that he had no arguable case on appeal. The history of the case shows that the applicant has been failing to comply with the rules of this court in one way or the other in his applications. The applicant was convicted of rape by the Regional Magistrate in Rusape on the 20th of April 2023. He was sentenced to 14 years imprisonment of which 2 years were suspended for 5 years on usual conditions of good behavior. When he applied for condonation of late noting of appeal, the State did not oppose his application. The submission by the State in that application was that the applicant had prospects of success on appeal although this court found that the applicant had no such prospects of success on appeal and dismissed the application on 21 June 2023. A perusal of the record shows that the applicant was said to have raped an 18 year old girl who was doing form four. The girl had come for a hair cut and after the hair cut the two then had sexual intercourse at the tobacco barn which was ten meters from the applicant’s residence. The applicant was said to have carried or lifted the complainant to the barn against her will and forced himself upon her. The applicant maintained that the sexual act was consensual as the complainant was his girlfriend. The applicant’s relatives who were inside the house did not notice anything until the complainant left and she reported the case the following day to her brother. There is also another development to the case whereby on the 1st of August 2024, the complainant swore to an affidavit explaining that she had consented to the sexual act. She said that she made the false allegation of rape because after confiding the sexual act to his brother out of fear of falling pregnant, her brother had divulged the information to her uncle and hence she had to fabricate the rape so as to present an innocent explanation of the sexual intercourse to the uncle. After the striking off of the earlier application for leave to appeal to the Supreme Court, the applicant filed an application for condonation of late noting of the appeal to the Supreme Court under case number SC 330/25 which was struck off the roll for not being properly before that court. On 21 June 2025, the Supreme Court gave reasons for striking off the application under SC 45/25. State counsel Muchemwa who appeared at the Supreme Court indicated that the conviction of the applicant is problematic. The Supreme Court’s hands were tied because it could not grant leave to appeal to the applicant before he had been denied leave to appeal by this court. It said that it had no jurisdiction to do so. When the applicant came back from the Supreme Court, that is when his last application for leave to appeal was struck off the roll on 4 July 2025. He is now seeking to reinstate the very application that this court rejected for not being properly before it. The State’s position is that the applicant should have done a fresh application for leave to appeal to the Supreme Court. That submission is correct. That is what the applicant ought to have done. The applicant clearly craves to be granted leave to appeal to the Supreme Court against this court’s dismissal of his application for condonation of late noting of his appeal. He has said it before me. His papers show that that is what he intends to do even though he is going in circles and failing to articulate his case and comply with the rules of this court as a self - actor. There is need for finality is his case. At the end of the day, this court must either deny him leave to appeal to the Supreme Court or grant it. The State has expressed itself that the conviction of the applicant was not safe and yet the State seems to be content in having the applicant going from pillar to post rather than this court dealing with the substance of the matter. In this particular case, the interests of justice now demand a relaxation of the strict rules of this court so that the substance of the case is considered at once in this application rather than sending the applicant back into prison to have him come up with another fresh application which is more or less likely to be defective when those who accused him of having committed a crime are now saying that the conviction is unsafe. Even the complainant who engineered the whole case is now backtracking. I see no reason why I should not grant the applicant leave to appeal to the Supreme Court as per his desire as that is what the interests of justice now demand. I will therefore order as follows: The applicant be and is hereby granted leave to appeal to the Supreme Court against this court’s dismissal of his application for condonation of late noting of appeal under HC – Con 13/23.The applicant shall file his Notice of Appeal to the Supreme Court in terms of the Supreme Court Rules. National Prosecuting Authority, respondents’ legal practitioners 2 HCMTJ 47/25 HCMTCR 1253/25 2 HCMTJ 47/25 HCMTCR 1253/25 ADMIRE MASHIRI versus THE STATE HIGH COURT OF ZIMBABWE SIZIBA J MUTARE, 19 August 2025 CHAMBER APPLICATION Applicant in person J. Matsikidze, for the respondent SIZIBA J: On the 30th of July 2025, the applicant filed this application seeking to reinstate case number HCMTCR 935/25 which case was an application for leave to appeal to the Supreme Court against this court’s dismissal of his application for condonation of late noting of appeal to this court under HC-Con 13/23. Case number HCMTCR 935/25 was struck off the roll on 4 July 2025. The applicant’s other application for leave to appeal to the Supreme Court was struck off the roll on 12 February 2025 under HCMTCR 64/25. The applicant is a self actor who is currently serving a prison term at Rusape Remand Prison. It appears that the applicant’s applications for leave to appeal to the Supreme Court have been turned down for reasons of failing to attach or provide reasons for dismissal of his application for condonation and also for being out of time. The record shows that he did request for the reasons from the Registrar of this court and he was supplied with an order of this court which showed that he had no arguable case on appeal. The history of the case shows that the applicant has been failing to comply with the rules of this court in one way or the other in his applications. The applicant was convicted of rape by the Regional Magistrate in Rusape on the 20th of April 2023. He was sentenced to 14 years imprisonment of which 2 years were suspended for 5 years on usual conditions of good behavior. When he applied for condonation of late noting of appeal, the State did not oppose his application. The submission by the State in that application was that the applicant had prospects of success on appeal although this court found that the applicant had no such prospects of success on appeal and dismissed the application on 21 June 2023. A perusal of the record shows that the applicant was said to have raped an 18 year old girl who was doing form four. The girl had come for a hair cut and after the hair cut the two then had sexual intercourse at the tobacco barn which was ten meters from the applicant’s residence. The applicant was said to have carried or lifted the complainant to the barn against her will and forced himself upon her. The applicant maintained that the sexual act was consensual as the complainant was his girlfriend. The applicant’s relatives who were inside the house did not notice anything until the complainant left and she reported the case the following day to her brother. There is also another development to the case whereby on the 1st of August 2024, the complainant swore to an affidavit explaining that she had consented to the sexual act. She said that she made the false allegation of rape because after confiding the sexual act to his brother out of fear of falling pregnant, her brother had divulged the information to her uncle and hence she had to fabricate the rape so as to present an innocent explanation of the sexual intercourse to the uncle. After the striking off of the earlier application for leave to appeal to the Supreme Court, the applicant filed an application for condonation of late noting of the appeal to the Supreme Court under case number SC 330/25 which was struck off the roll for not being properly before that court. On 21 June 2025, the Supreme Court gave reasons for striking off the application under SC 45/25. State counsel Muchemwa who appeared at the Supreme Court indicated that the conviction of the applicant is problematic. The Supreme Court’s hands were tied because it could not grant leave to appeal to the applicant before he had been denied leave to appeal by this court. It said that it had no jurisdiction to do so. When the applicant came back from the Supreme Court, that is when his last application for leave to appeal was struck off the roll on 4 July 2025. He is now seeking to reinstate the very application that this court rejected for not being properly before it. The State’s position is that the applicant should have done a fresh application for leave to appeal to the Supreme Court. That submission is correct. That is what the applicant ought to have done. The applicant clearly craves to be granted leave to appeal to the Supreme Court against this court’s dismissal of his application for condonation of late noting of his appeal. He has said it before me. His papers show that that is what he intends to do even though he is going in circles and failing to articulate his case and comply with the rules of this court as a self - actor. There is need for finality is his case. At the end of the day, this court must either deny him leave to appeal to the Supreme Court or grant it. The State has expressed itself that the conviction of the applicant was not safe and yet the State seems to be content in having the applicant going from pillar to post rather than this court dealing with the substance of the matter. In this particular case, the interests of justice now demand a relaxation of the strict rules of this court so that the substance of the case is considered at once in this application rather than sending the applicant back into prison to have him come up with another fresh application which is more or less likely to be defective when those who accused him of having committed a crime are now saying that the conviction is unsafe. Even the complainant who engineered the whole case is now backtracking. I see no reason why I should not grant the applicant leave to appeal to the Supreme Court as per his desire as that is what the interests of justice now demand. I will therefore order as follows: The applicant be and is hereby granted leave to appeal to the Supreme Court against this court’s dismissal of his application for condonation of late noting of appeal under HC – Con 13/23. The applicant shall file his Notice of Appeal to the Supreme Court in terms of the Supreme Court Rules. National Prosecuting Authority, respondents’ legal practitioners