CHADEMANA v STATE (40 of 2025) [2025] ZWMTHC 40 (18 July 2025)

5 HCMTJ 40-25 HCMTCR 1101/25 TINOTENDA CHADEMANA versus THE STATE HIGH COURT OF ZIMBABWE SIZIBA J MUTARE, 14 &18 July 2025 CHAMBER APPLICATION Appellant in person Mr M. Musarurwa, for the respondent SIZIBA J: This is a composite application for extension of time to file condonation for leave to appeal to the Supreme Court, application for condonation for leave to appeal to the Supreme Court and application for leave to appeal to the Supreme Court. It was filed by the applicant on 6 July 2025. The appellant desires to be condoned as articulated above and also to be granted leave to appeal because he is aggrieved by the decision of this court dismissing his appeal against conviction and sentence on a charge of rape in terms of s 65 (1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He was sentenced by the court a quo on 5 August 2022 to 16 years imprisonment of which 2 years were suspended for 5 years on condition of good behavior. This court dismissed his appeal on 21 November 2022. The applications for condonation, extension of time and leave to appeal are all premised upon s 44 (4) of the High Court Act [Chapter 7:06] as read with r 94 of the High Court Rules, 2021. The applicant also seeks to be granted leave to prosecute his appeal before the Supreme Court in person. The grounds upon which the applicant seeks to impugn the judgment of this court in relation to dismissal of his conviction are as follows: “(a) The Supreme Court to determine whether the judge a quo’s findings that there was no errors committed by the trial court in its assessment of evidence on a point of law, is constitutionally fair, as revealed by the trial magistrate that, he does not make his decisions alone but formulated by his partners, a procedure not known in the judicial laws. (b) The High Court appeal bench erred on a point of law and misdirected itself when it concluded that, even on a question of law, it did not see any legal error committed by the trial court, yet the record of proceedings indicates that the trial magistrate descended into the arena, assuming the roll of the prosecutor, vigorously examining the appellant, and examining the complainant before and after cross examination by defense counsel.” The applicant was legally represented both at the trial before the Magistrates Court in Mutare as well as during the appeal hearing before this court. He is currently serving his sentence at Chikurubi Maximum prison. It has taken two years and seven months for him to seek leave to appeal. The length of the delay is worrisome. His explanation is that on the date of the appeal hearing before this court, he was not before the court as he was represented by his lawyer. No explanation has been advanced why he had not been brought to court. This prevented him to apply for leave to appeal to the Supreme Court immediately after the dismissal of his appeal as required by the rules of this court. Thereafter, he says that he was then transferred to Chikurubi Maximum prison away from Mutare where the case had been held. He was only told of the dismissal of his appeal by his mother when she paid him a visit in prison in March 2023. He then asked his parents to raise legal fees and he was told that they had been unsuccessful in February 2025. He requested a copy of the proceedings at this court and he received them on 31 May 2025 and that is when he prepared and filed this application. This explanation is unsatisfactory in many respects. There is no reasonable explanation why the applicant would have then failed to follow up and know the fate of his appeal from November 2022 until March 2023 and also stay almost two years thereafter before taking any reasonable steps about his fate if at all he was keen to appeal. Despite the inordinate delay and the unreasonable explanation as highlighted above, this court would not want to close the gateway to the next appellate court to an unrepresented layman because of technical glitches where there are prospects of success in the envisaged appeal. Counsel for the respondent has lamented the absence of prospects of success in the intended appeal. He has also attacked the argumentative grounds of appeal which are neither clear nor concise. I will approach the inquiry on prospects of success with a measure of tolerance to try and discern his grounds of complaints since the accused is an unrepresented layman. A careful perusal of the record shows that although the applicant is complaining against this court’s finding that there was no error committed by the trial court, none of the errors that he alleges were ever raised before this court by his legal practitioner who argued his appeal. His grounds of appeal to the Supreme Court are based on totally new complaints against the proceedings of the trial court. Perhaps one may still give the latitude to say that the applicant may raise such complaints as points of law at any stage of the proceedings but still there does not seem to be any substance in those contentions. When the applicant’s appeal was to be heard by this court, it was noted that his notice of appeal was fatally defective. They were no clear and concise grounds of appeal. This court condoned him and heard the appeal on the merits. It was noted during the appeal and conceded by his legal practitioner that sexual intercourse between the applicant and the complainant had taken place. The complainant was applicant’s niece and they stayed together at that time. What was in issue was whether the complainant had consented to the sexual intercourse or not. This court on appeal took the view that the appellant failed to challenge the complainant in her evidence that she did not consent to the sexual intercourse. The events connected with the offence of rape occurred on 11 December 2021 at house number 6104 ZIMTA Park, Mutare. The complainant testified that during the evening on that day, she was slumbering and about to fall asleep in her bedroom when the applicant was being restless, coming into her bedroom and going out into the siting room and entering other rooms as well and he finally came into her bedroom, pulled up her dress, covered her mouth and nose with his hand, pulled aside her pant and had sexual intercourse with her once without her consent. The complainant texted her sister an emoji of a crying person. In the meanwhile, the applicant also sent a text message to the complainant’s sister saying that he had committed a big one and did not think that he would be forgiven. This prompted the sister of the complainant to ask the complainant if all was well and that is when she was told of the rape incident. The applicant’s mother was told of the incident by the complainant immediately as well and she did not take action against the applicant although she comforted the complainant and told her that she feared telling her mother since it could worsen her health condition. The complainant’s sister arrived the following day and confronted the applicant who she claims to have confessed to her that he had raped her young sister. She also confronted the accused’s mother about why she had not reported the matter to the police. She advised her mother and also reported the incident to the police. The trial court was satisfied that the complainant had reported the rape allegation at the earliest possible time and without undue pressure from anyone. During cross examination of both the complainant and her sister, the applicant’s legal practitioner did not put a single question to challenge them that the sexual intercourse occurred with the consent of the complainant. More time was spent challenging the admissibility of text messages and other assertions by the complainant which were not the core of the issue. It was only during the applicant’s evidence in chief that he started to give a fanciful oratory that the complainant is the one who had started to make unsolicited sexual advances to him from the time that they were having super during that evening. She allegedly tapped his feet and caressed him and they kissed each other until they engaged in sexual intercourse. During his cross examination, he even went on to allege that he had had sexual intercourse with the complainant’s sister and he was fearing how she would react if the complainant could tell her that she had had sexual intercourse with him. It was not accounted for why the applicant would have gotten into the panic mood to the extent of texting the complainant’s sister if indeed they had had consensual sexual intercourse with the complainant who was a 19 year old adult. A perusal of the record shows that the Acting Regional magistrate would ask questions to the complainant before cross examination by the applicant’s counsel and also in the middle of cross examination. He also chipped in and asked questions before state counsel had finished cross examining the applicant. This was improper. However, this was not such a gross irregularity which can vitiate the trial proceedings as contemplated in s 29(3) of the High Court Act [Chapter 7:06]. There was no substantial miscarriage of justice as the applicant was legally represented and despite such pre mature interventions by the trial magistrate, the applicant was still afforded a chance to challenge the witnesses by cross examination and his legal practitioner did so extensively. Although the issue of the trial court’s descending into the arena was not raised before this court, I do not find it to be so material as to warrant a trial de novo as prayed by the applicant in his Notice of Appeal to the Supreme Court. The allegation that the learned trial magistrate was assisted by some associates to decide the case is without substance and there is nothing indicating such from the judgment of the court a quo. Moreover, the applicant’s argument that an effective 14 - year sentence in an offence of rape is unduly excessive under the circumstances of this case is seriously misplaced. There is no prospect of the Supreme Court disturbing such a sentence in my view and hence the appeal along those lines is also doomed to fail. It is on the basis of the above observations that I do not find any prospects of success in the intended appeal to the Supreme Court by the appellant. If there were such prospects of success, I would have been persuaded to grant the applicant’s applications despite the lengthy delay and the unsatisfactory explanation for such delay. In the result, the applications have no merit and they are all dismissed. National Prosecuting Authority, respondent’s legal practitioners 5 HCMTJ 40-25 HCMTCR 1101/25 5 HCMTJ 40-25 HCMTCR 1101/25 TINOTENDA CHADEMANA versus THE STATE HIGH COURT OF ZIMBABWE SIZIBA J MUTARE, 14 &18 July 2025 CHAMBER APPLICATION Appellant in person Mr M. Musarurwa, for the respondent SIZIBA J: This is a composite application for extension of time to file condonation for leave to appeal to the Supreme Court, application for condonation for leave to appeal to the Supreme Court and application for leave to appeal to the Supreme Court. It was filed by the applicant on 6 July 2025. The appellant desires to be condoned as articulated above and also to be granted leave to appeal because he is aggrieved by the decision of this court dismissing his appeal against conviction and sentence on a charge of rape in terms of s 65 (1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He was sentenced by the court a quo on 5 August 2022 to 16 years imprisonment of which 2 years were suspended for 5 years on condition of good behavior. This court dismissed his appeal on 21 November 2022. The applications for condonation, extension of time and leave to appeal are all premised upon s 44 (4) of the High Court Act [Chapter 7:06] as read with r 94 of the High Court Rules, 2021. The applicant also seeks to be granted leave to prosecute his appeal before the Supreme Court in person. The grounds upon which the applicant seeks to impugn the judgment of this court in relation to dismissal of his conviction are as follows: “(a) The Supreme Court to determine whether the judge a quo’s findings that there was no errors committed by the trial court in its assessment of evidence on a point of law, is constitutionally fair, as revealed by the trial magistrate that, he does not make his decisions alone but formulated by his partners, a procedure not known in the judicial laws. (b) The High Court appeal bench erred on a point of law and misdirected itself when it concluded that, even on a question of law, it did not see any legal error committed by the trial court, yet the record of proceedings indicates that the trial magistrate descended into the arena, assuming the roll of the prosecutor, vigorously examining the appellant, and examining the complainant before and after cross examination by defense counsel.” The applicant was legally represented both at the trial before the Magistrates Court in Mutare as well as during the appeal hearing before this court. He is currently serving his sentence at Chikurubi Maximum prison. It has taken two years and seven months for him to seek leave to appeal. The length of the delay is worrisome. His explanation is that on the date of the appeal hearing before this court, he was not before the court as he was represented by his lawyer. No explanation has been advanced why he had not been brought to court. This prevented him to apply for leave to appeal to the Supreme Court immediately after the dismissal of his appeal as required by the rules of this court. Thereafter, he says that he was then transferred to Chikurubi Maximum prison away from Mutare where the case had been held. He was only told of the dismissal of his appeal by his mother when she paid him a visit in prison in March 2023. He then asked his parents to raise legal fees and he was told that they had been unsuccessful in February 2025. He requested a copy of the proceedings at this court and he received them on 31 May 2025 and that is when he prepared and filed this application. This explanation is unsatisfactory in many respects. There is no reasonable explanation why the applicant would have then failed to follow up and know the fate of his appeal from November 2022 until March 2023 and also stay almost two years thereafter before taking any reasonable steps about his fate if at all he was keen to appeal. Despite the inordinate delay and the unreasonable explanation as highlighted above, this court would not want to close the gateway to the next appellate court to an unrepresented layman because of technical glitches where there are prospects of success in the envisaged appeal. Counsel for the respondent has lamented the absence of prospects of success in the intended appeal. He has also attacked the argumentative grounds of appeal which are neither clear nor concise. I will approach the inquiry on prospects of success with a measure of tolerance to try and discern his grounds of complaints since the accused is an unrepresented layman. A careful perusal of the record shows that although the applicant is complaining against this court’s finding that there was no error committed by the trial court, none of the errors that he alleges were ever raised before this court by his legal practitioner who argued his appeal. His grounds of appeal to the Supreme Court are based on totally new complaints against the proceedings of the trial court. Perhaps one may still give the latitude to say that the applicant may raise such complaints as points of law at any stage of the proceedings but still there does not seem to be any substance in those contentions. When the applicant’s appeal was to be heard by this court, it was noted that his notice of appeal was fatally defective. They were no clear and concise grounds of appeal. This court condoned him and heard the appeal on the merits. It was noted during the appeal and conceded by his legal practitioner that sexual intercourse between the applicant and the complainant had taken place. The complainant was applicant’s niece and they stayed together at that time. What was in issue was whether the complainant had consented to the sexual intercourse or not. This court on appeal took the view that the appellant failed to challenge the complainant in her evidence that she did not consent to the sexual intercourse. The events connected with the offence of rape occurred on 11 December 2021 at house number 6104 ZIMTA Park, Mutare. The complainant testified that during the evening on that day, she was slumbering and about to fall asleep in her bedroom when the applicant was being restless, coming into her bedroom and going out into the siting room and entering other rooms as well and he finally came into her bedroom, pulled up her dress, covered her mouth and nose with his hand, pulled aside her pant and had sexual intercourse with her once without her consent. The complainant texted her sister an emoji of a crying person. In the meanwhile, the applicant also sent a text message to the complainant’s sister saying that he had committed a big one and did not think that he would be forgiven. This prompted the sister of the complainant to ask the complainant if all was well and that is when she was told of the rape incident. The applicant’s mother was told of the incident by the complainant immediately as well and she did not take action against the applicant although she comforted the complainant and told her that she feared telling her mother since it could worsen her health condition. The complainant’s sister arrived the following day and confronted the applicant who she claims to have confessed to her that he had raped her young sister. She also confronted the accused’s mother about why she had not reported the matter to the police. She advised her mother and also reported the incident to the police. The trial court was satisfied that the complainant had reported the rape allegation at the earliest possible time and without undue pressure from anyone. During cross examination of both the complainant and her sister, the applicant’s legal practitioner did not put a single question to challenge them that the sexual intercourse occurred with the consent of the complainant. More time was spent challenging the admissibility of text messages and other assertions by the complainant which were not the core of the issue. It was only during the applicant’s evidence in chief that he started to give a fanciful oratory that the complainant is the one who had started to make unsolicited sexual advances to him from the time that they were having super during that evening. She allegedly tapped his feet and caressed him and they kissed each other until they engaged in sexual intercourse. During his cross examination, he even went on to allege that he had had sexual intercourse with the complainant’s sister and he was fearing how she would react if the complainant could tell her that she had had sexual intercourse with him. It was not accounted for why the applicant would have gotten into the panic mood to the extent of texting the complainant’s sister if indeed they had had consensual sexual intercourse with the complainant who was a 19 year old adult. A perusal of the record shows that the Acting Regional magistrate would ask questions to the complainant before cross examination by the applicant’s counsel and also in the middle of cross examination. He also chipped in and asked questions before state counsel had finished cross examining the applicant. This was improper. However, this was not such a gross irregularity which can vitiate the trial proceedings as contemplated in s 29(3) of the High Court Act [Chapter 7:06]. There was no substantial miscarriage of justice as the applicant was legally represented and despite such pre mature interventions by the trial magistrate, the applicant was still afforded a chance to challenge the witnesses by cross examination and his legal practitioner did so extensively. Although the issue of the trial court’s descending into the arena was not raised before this court, I do not find it to be so material as to warrant a trial de novo as prayed by the applicant in his Notice of Appeal to the Supreme Court. The allegation that the learned trial magistrate was assisted by some associates to decide the case is without substance and there is nothing indicating such from the judgment of the court a quo. Moreover, the applicant’s argument that an effective 14 - year sentence in an offence of rape is unduly excessive under the circumstances of this case is seriously misplaced. There is no prospect of the Supreme Court disturbing such a sentence in my view and hence the appeal along those lines is also doomed to fail. It is on the basis of the above observations that I do not find any prospects of success in the intended appeal to the Supreme Court by the appellant. If there were such prospects of success, I would have been persuaded to grant the applicant’s applications despite the lengthy delay and the unsatisfactory explanation for such delay. In the result, the applications have no merit and they are all dismissed. National Prosecuting Authority, respondent’s legal practitioners