Mashiri v State (36 of 2025) [2025] ZWMTHC 36 (8 July 2025)

1 HCMTJ36/25 HCMTCR 935/25 ADMIRE MASHIRI versus THE STATE HIGH COURT OF ZIMBABWE MUZENDA J MUTARE, 8 July 2025 Application for Leave to Appeal to the Supreme Court MUZENDA J: This is an application for leave to appeal to the Supreme Court which was filed by the applicant on 13 June 2025. The applicant was convicted by Rusape Regional Court on 20 April 2023 for Rape and sentenced to 14 years imprisonment, 2 years imprisonment of which was suspended on conditions of future good behaviour. Having realized that he had not timeously filed a notice of appeal to this court, applicant under case No. HC Con 13/23 applied for condonation for late noting of appeal. Having gone through the record of proceedings I was of the view that the prospects of success on appeal were non-existent. The reasons were given to the applicant. The applicant made more applications for leave to appeal and could not attach a copy of the record of proceedings leading to this court having to strike off the matter from the roll of chamber applications. As the record clearly shows applicant proceeded to file the papers in the Supreme Court and the Supreme Court’s record extract shows that the matter was struck off. Then applicant comes back to this court with another application for leave to appeal. As the record indicates, applicant intends this court either to repeat its reasons already given or to revist the application because to the applicant he was told “by the Supreme Court that there were bright prospects of success on appeal” all that the Supreme Court desired was leave granted by this court. Background The allegations by the state against the applicant were that on 29 October 2022 at Stand 5 Ruponeso Village, Headlands, applicant had unconsensual sexual intercourse with the complainant or realising that she was not consenting. Applicant was a close friend of the complainant’s brother and hence well known to the complainant. Applicant’s defence was that the sexual encounter was consensual. Most facts before the Regional Court were to a large extent common cause. Sexual intercourse was found to have taken place and complainant’s hymen was torn and fresh tears were observed by the medical expert at 1, 3, 6 and 10 o’clock, a small bruise was noted on the perineum of the survivor. The critical question faced by the trier of facts was whether sexual intercourse was consensual. Complainant testified that she went for a haircut at applicant’s barbour where applicant proposed love to her and she spurned the proposal. Applicant carried the complainant to the tobacco barn and complainant was taken by surprise and shock by applicant’s behaviour. A struggle ensued in the barn when complainant attempted to push applicant away. Applicant forced the complainant to the ground and ravished her without protection. Complainant told applicant that she did not like what applicant had done to her and she was gong to inform her brother. The trial court found complainant and other state witnesses credible and dismissed applicant’s defence of consent. It correctly in my view convicted the applicant and gave detailed reasons why it believed the state witnesses. In my evaluation of the Learned Regional Court’s judgment, all the allegations being made by the applicant herein are baseless. Where there are no prospects of success on appeal or even an arguable case, yes a court could condone the delayed notice, but if there are none, such an indulgence by the court is misplaced. There is currently no application for condonation before me and in principle, applicant cannot apply for leave without being condoned first. It is my considered view that this application is not properly before me once again. It is again struck off the roll. 1 HCMTJ36/25 HCMTCR 935/25 1 HCMTJ36/25 HCMTCR 935/25 ADMIRE MASHIRI versus THE STATE HIGH COURT OF ZIMBABWE MUZENDA J MUTARE, 8 July 2025 Application for Leave to Appeal to the Supreme Court MUZENDA J: This is an application for leave to appeal to the Supreme Court which was filed by the applicant on 13 June 2025. The applicant was convicted by Rusape Regional Court on 20 April 2023 for Rape and sentenced to 14 years imprisonment, 2 years imprisonment of which was suspended on conditions of future good behaviour. Having realized that he had not timeously filed a notice of appeal to this court, applicant under case No. HC Con 13/23 applied for condonation for late noting of appeal. Having gone through the record of proceedings I was of the view that the prospects of success on appeal were non-existent. The reasons were given to the applicant. The applicant made more applications for leave to appeal and could not attach a copy of the record of proceedings leading to this court having to strike off the matter from the roll of chamber applications. As the record clearly shows applicant proceeded to file the papers in the Supreme Court and the Supreme Court’s record extract shows that the matter was struck off. Then applicant comes back to this court with another application for leave to appeal. As the record indicates, applicant intends this court either to repeat its reasons already given or to revist the application because to the applicant he was told “by the Supreme Court that there were bright prospects of success on appeal” all that the Supreme Court desired was leave granted by this court. Background The allegations by the state against the applicant were that on 29 October 2022 at Stand 5 Ruponeso Village, Headlands, applicant had unconsensual sexual intercourse with the complainant or realising that she was not consenting. Applicant was a close friend of the complainant’s brother and hence well known to the complainant. Applicant’s defence was that the sexual encounter was consensual. Most facts before the Regional Court were to a large extent common cause. Sexual intercourse was found to have taken place and complainant’s hymen was torn and fresh tears were observed by the medical expert at 1, 3, 6 and 10 o’clock, a small bruise was noted on the perineum of the survivor. The critical question faced by the trier of facts was whether sexual intercourse was consensual. Complainant testified that she went for a haircut at applicant’s barbour where applicant proposed love to her and she spurned the proposal. Applicant carried the complainant to the tobacco barn and complainant was taken by surprise and shock by applicant’s behaviour. A struggle ensued in the barn when complainant attempted to push applicant away. Applicant forced the complainant to the ground and ravished her without protection. Complainant told applicant that she did not like what applicant had done to her and she was gong to inform her brother. The trial court found complainant and other state witnesses credible and dismissed applicant’s defence of consent. It correctly in my view convicted the applicant and gave detailed reasons why it believed the state witnesses. In my evaluation of the Learned Regional Court’s judgment, all the allegations being made by the applicant herein are baseless. Where there are no prospects of success on appeal or even an arguable case, yes a court could condone the delayed notice, but if there are none, such an indulgence by the court is misplaced. There is currently no application for condonation before me and in principle, applicant cannot apply for leave without being condoned first. It is my considered view that this application is not properly before me once again. It is again struck off the roll.