KATYEBERE v STATE (46 of 2025) [2025] ZWMTHC 46 (13 August 2025)

2 HCMTJ 46-25 HCMTCR 1294/25 TATENDA KATYEBERE versus THE STATE HIGH COURT OF ZIMBABWE SIZIBA J MUTARE, 7 & 13 August 2025 Applicant in person Ms T.L Katsiru, for the State SIZIBA J: This is a composite application for condonation of late noting of appeal and for leave to prosecute the appeal in person. After hearing the parties on the 7th of August 2025, I gave an ex tempore judgment dismissing the application in its entirety for lake of merit. I have decided to write the full reasons of my decision for the benefit of the applicant who is a self - actor. The applicant was convicted of raping his 11-year-old stepdaughter by the Regional Magistrate in Rusape. He was sentenced to 16 years imprisonment of which 4 years was suspended for 5 years on condition of good behaviour. The sentence was pronounced on 9 June 2023. He intends to appeal against both conviction and sentence. The case against the applicant was that on 13 February 2023, he returned from Diza farm where he had gone to work on that day and found the complainant near their place of residence in the company of a 6-year-old girl who was a neighbour. The applicant ordered the complainant to make some fire. He then followed her into the room which also served as their bedroom. He throttled her and pushed her to the bed. She fell on the bed on her back facing upwards. He removed her jean trouser and panty completely. He then lowered his own trousers and pants to knee level. He rubbed his penis on her vagina without inserting it until he released semen. The complainant went to the neighbour’s residence and returned at around 1730 hours, almost same time with the applicant. Her mother who had gone to Rusape town with their landlord from the morning had also arrived. The complainant told her mother that the applicant had abused her. Her mother silenced her as she feared that the applicant could assault both of them over the issue. The complainant’s mother took her to the applicant’s sister called Rebecca. The mother asked her to narrate her ordeal to Rebecca which she did. Rebecca then phoned the members of the neighbourhood watch committee. The applicant was arrested. The medical examination upon the complainant on 14 February 2023 showed that she had redness on both labia minora. Her hymen was intact. Penetration was said to be very likely. The applicant’s defence version was that the case against him was fabricated by the complainant’s mother as they always had marital conflicts. The complainant’s mother had told the complainant to keep away from the accused. The applicant alleged that she had threatened to pock the complainant’s vagina with a stick. She denied this allegation. She conceded that she had indeed told the complainant to keep away from the applicant as he had told her that she was too old for him and that she was also a prostitute whom he married from a bar. She said that the applicant told their landlord that he wanted to win the complainant to himself by giving her some money. She thus told her daughter to keep away from the applicant as she feared that he could abuse her. The trial magistrate was persuaded by the complainant’s mother in her denial that she had threatened to pock the complainant’s vagina with a stick. The learned magistrate also rejected the allegation of fabrication of the offence by the complainant’s mother on the basis that she did not herself report the applicant to the police. It is his own sister, Rebecca, who reported him. The learned magistrate noted that the very act of reporting the issue to the applicant’s sister who is the aunt was out of love as she wanted the matter to be discussed at the family level. It was also found that on previous occasions, the complainant’s mother had withdrawn charges against the applicant after being assaulted as a result of love. She would not have therefore fabricated the offence. The medical report corroborates the complainant’s testimony. This is what the trial court established. This is correct. There was a slight degree of penetration which left the hymen intact. The findings of fact made by the trial court are premised on solid facts. The complainant’s mother was away at the alleged time of the incident. She was not with the complainant. The complainant and her mother had no time at all to fabricate and rehearse the offence to spite the applicant. Given the above observations, there is no prospect of the appellate court interfering with the findings of facts made by the trial court. The applicant’s grounds of appeal dwell on the alleged fabrication by the complainant’s mother, the absence of penetration and admission of accomplice evidence without caution. There is no accomplice evidence to talk about. The finding of the trial court that there was a slight degree of penetration which qualified as legal penetration is unassailable. There are no inconsistences to talk of. All the grounds of appeal have no merit. The application is being brought almost two years after the applicant’s conviction and sentence. The delay is inordinate. The explanation about the non-availability of the record is very weak. If there had been prospects of succeed, the other issues would have been condoned. The applicant’s draft Notice of Appeal has no prayer on sentence. This makes the Notice of Appeal to be fatally defective, but he is a self - actor whose application fails not on that aspect alone but most importantly on the basis of the more clearer and non - technical grounds which I have articulated above. There should be finality in litigation. This principle applies to both civil and criminal litigation. The effective sentence of 12 years imprisonment for a crime of rape cannot be said to be shocking. The lamentation that a sentence ‘is so severe as to induces a sense of shock’ has now been reduced from being one of the most emphatic legal nomenclature to become a common chorus which is now being sung even by self – actors like the applicant such that the court can no longer take it at face value. The sentence was very lenient in this case. The envisaged appeal is doomed to fail. The door to the appellate court must therefore be shut. Leave to prosecute the appeal in person cannot be granted as well since the main application cannot succeed. It is because of these reasons that both applications were dismissed for lack of merit. National Prosecuting Authority, respondent’s legal practitioners 2 HCMTJ 46-25 HCMTCR 1294/25 2 HCMTJ 46-25 HCMTCR 1294/25 TATENDA KATYEBERE versus THE STATE HIGH COURT OF ZIMBABWE SIZIBA J MUTARE, 7 & 13 August 2025 Applicant in person Ms T.L Katsiru, for the State SIZIBA J: This is a composite application for condonation of late noting of appeal and for leave to prosecute the appeal in person. After hearing the parties on the 7th of August 2025, I gave an ex tempore judgment dismissing the application in its entirety for lake of merit. I have decided to write the full reasons of my decision for the benefit of the applicant who is a self - actor. The applicant was convicted of raping his 11-year-old stepdaughter by the Regional Magistrate in Rusape. He was sentenced to 16 years imprisonment of which 4 years was suspended for 5 years on condition of good behaviour. The sentence was pronounced on 9 June 2023. He intends to appeal against both conviction and sentence. The case against the applicant was that on 13 February 2023, he returned from Diza farm where he had gone to work on that day and found the complainant near their place of residence in the company of a 6-year-old girl who was a neighbour. The applicant ordered the complainant to make some fire. He then followed her into the room which also served as their bedroom. He throttled her and pushed her to the bed. She fell on the bed on her back facing upwards. He removed her jean trouser and panty completely. He then lowered his own trousers and pants to knee level. He rubbed his penis on her vagina without inserting it until he released semen. The complainant went to the neighbour’s residence and returned at around 1730 hours, almost same time with the applicant. Her mother who had gone to Rusape town with their landlord from the morning had also arrived. The complainant told her mother that the applicant had abused her. Her mother silenced her as she feared that the applicant could assault both of them over the issue. The complainant’s mother took her to the applicant’s sister called Rebecca. The mother asked her to narrate her ordeal to Rebecca which she did. Rebecca then phoned the members of the neighbourhood watch committee. The applicant was arrested. The medical examination upon the complainant on 14 February 2023 showed that she had redness on both labia minora. Her hymen was intact. Penetration was said to be very likely. The applicant’s defence version was that the case against him was fabricated by the complainant’s mother as they always had marital conflicts. The complainant’s mother had told the complainant to keep away from the accused. The applicant alleged that she had threatened to pock the complainant’s vagina with a stick. She denied this allegation. She conceded that she had indeed told the complainant to keep away from the applicant as he had told her that she was too old for him and that she was also a prostitute whom he married from a bar. She said that the applicant told their landlord that he wanted to win the complainant to himself by giving her some money. She thus told her daughter to keep away from the applicant as she feared that he could abuse her. The trial magistrate was persuaded by the complainant’s mother in her denial that she had threatened to pock the complainant’s vagina with a stick. The learned magistrate also rejected the allegation of fabrication of the offence by the complainant’s mother on the basis that she did not herself report the applicant to the police. It is his own sister, Rebecca, who reported him. The learned magistrate noted that the very act of reporting the issue to the applicant’s sister who is the aunt was out of love as she wanted the matter to be discussed at the family level. It was also found that on previous occasions, the complainant’s mother had withdrawn charges against the applicant after being assaulted as a result of love. She would not have therefore fabricated the offence. The medical report corroborates the complainant’s testimony. This is what the trial court established. This is correct. There was a slight degree of penetration which left the hymen intact. The findings of fact made by the trial court are premised on solid facts. The complainant’s mother was away at the alleged time of the incident. She was not with the complainant. The complainant and her mother had no time at all to fabricate and rehearse the offence to spite the applicant. Given the above observations, there is no prospect of the appellate court interfering with the findings of facts made by the trial court. The applicant’s grounds of appeal dwell on the alleged fabrication by the complainant’s mother, the absence of penetration and admission of accomplice evidence without caution. There is no accomplice evidence to talk about. The finding of the trial court that there was a slight degree of penetration which qualified as legal penetration is unassailable. There are no inconsistences to talk of. All the grounds of appeal have no merit. The application is being brought almost two years after the applicant’s conviction and sentence. The delay is inordinate. The explanation about the non-availability of the record is very weak. If there had been prospects of succeed, the other issues would have been condoned. The applicant’s draft Notice of Appeal has no prayer on sentence. This makes the Notice of Appeal to be fatally defective, but he is a self - actor whose application fails not on that aspect alone but most importantly on the basis of the more clearer and non - technical grounds which I have articulated above. There should be finality in litigation. This principle applies to both civil and criminal litigation. The effective sentence of 12 years imprisonment for a crime of rape cannot be said to be shocking. The lamentation that a sentence ‘is so severe as to induces a sense of shock’ has now been reduced from being one of the most emphatic legal nomenclature to become a common chorus which is now being sung even by self – actors like the applicant such that the court can no longer take it at face value. The sentence was very lenient in this case. The envisaged appeal is doomed to fail. The door to the appellate court must therefore be shut. Leave to prosecute the appeal in person cannot be granted as well since the main application cannot succeed. It is because of these reasons that both applications were dismissed for lack of merit. National Prosecuting Authority, respondent’s legal practitioners