SANYATWE and ANOTHER v STATE (35 of 2025) [2025] ZWMTHC 35 (4 July 2025)

2 HCMTJ 35-25 HCMTCR 1921/24 CRISPEN SANYATWE and TAURAI SANYATWE versus THE STATE HIGH COURT OF ZIMBABWE MUZENDA J MUTARE, 4 July 2025 Reasons for Order MUZENDA J: on 15 November 2024 I gave the following order in chambers.: “The application for leave is apparently inordinate; the assessment of the record of proceedings points to the fact that there were no prospects of success on appeal; therefore the application is declined.” This order came as a result of an application made by the two applicants for leave to appeal to the Supreme Court made in terms of s 44(2) of the High Court Act [Chapter 7:06]. On 30 June 2025 I received a letter from the Registrar of the Supreme Court asking for my reasons for the above order. These are they. Background Facts The first applicant was a police constable stationed at Rusape Rural Police Station and second applicant is his younger brother. The state alleged that both applicants stole two bovine beasts from the grazing pastures. On 15 November 2020 applicants stated that they bought two ill beasts, one from one Mariah Kadengu and the other from a “Mupostori”. On 20 November 2020 the applicants sold the two oxen to Surrey Abattoir using a stock clearance papers written by first applicant in second applicant’s names, the name of the seller was captured as Ms. Magaret Chitiyo both applicants’ aunt. First applicant acquired a warrant of animal permit in his name for the same 2 oxen. Complainant recovered a rope she used to secure a bell on one of her oxen which had been stolen from one of applicant’s car. Both applicants were tried and convicted and were sentenced to 10 years imprisonment, of which a year imprisonment was suspended on condition applicants restitute the complainant. Applicants appealed to this court and on 23 February 2022 we dismissed the appeal and I gave a long judgment under HCMT 27/22 dated 5 July 2022 with the concurrence of Charewa J. On 7 November 2024 applicants filed a notice of application for leave to appeal to the Supreme Court against the dismissal of the appeal against both conviction and sentence. The applications for leave to appeal to the Supreme Court was premised on “the discovery of new evidence” by the applicants. The alleged discovery of new evidence was done post the dismissal of the appeal by this court. According to the applicants, there was at Rusape Central Police Station, complainant’s affidavit confirming recovery of the beasts and the affidavit by complainant alluded to the Criminal Record Book Numbers relating to applicants’ case. To the applicants this new evidence was not available during the initial trial and subsequent appeal and it was the anticipation of the appellants to have a Supreme Court revisit the whole matter. It was added by both applicants that complainant’s failure to identify (and produce) cattle hides to prove ownership placed doubt on her evidence. To the applicants the recovery of the bovine beasts lay a strong basis of strong prospects of success on appeal. The application for leave to appeal to the Supreme Court was opposed by the National Prosecuting Authority. To the state, applicants were to file their application for leave to appeal within a period of 10 days calculated from the date of the dismissal of the appeal. Applicants did not apply for condonation and it was the contention of the state that applicants could not make an application for leave out of time without being condoned first. As regards the introduction of the new evidence the state contended that the beasts collected by the complainant are totally distinct from the description of cattle which led to applicants’ conviction and subsequent appeal. What complainant recovered later were one black and brown cow and one heifer with black and white patches as compared to her one brown ox with white patches and one grey ox linking both applicants to the offence of stock theft which led to their conviction. Based on this distinction alone to the state the prospects of success on appeal was but non-existent nor arguable. Disposition The most crucial evidence in this application relates to what applicants perceive as new evidence as per documents attached to their application. The cattle that led to applicants’ conviction relates to two oxen and that constitute new evidence are a cow and a heifer. As a result, there is no evidence attached by both applicants that can be adjudged by this court to qualify as new evidence capable for reconstruction by a trial court. There is no probative value on the alleged affidavit which would place doubt on the conviction of both applicants. In any case it is apparent that from the record of proceedings that both applicants did not apply for condonation before filing for leave to appeal. As self-actors they may be condoned but a court has a duty to look at the explanation for delay which applicants did not even try to explain in their affidavits. The appeal was dismissed on 23 February 2022 and this application for leave was issued by the Registrar on 7 November 2024 2 years 9 months down the line. There is no doubt that the application is obviously inordinate. No plausible or acceptable explanation has been advanced by both applicants. On the aspects of prospects of success on appeal, the identity of beasts allegedly recovered by the complainant after the dismissal of their appeal by the High Court in February 2022 is totally distinct from the two bovine oxen which led to the conviction of the applicants. After dismissing the applicants’ appeal against conviction this court became functus officio and could only be seized with the matter if a proper application for condonation and leave to appeal is properly placed before it. Applicants failed to establish that and the application is declined. 2 HCMTJ 35-25 HCMTCR 1921/24 2 HCMTJ 35-25 HCMTCR 1921/24 CRISPEN SANYATWE and TAURAI SANYATWE versus THE STATE HIGH COURT OF ZIMBABWE MUZENDA J MUTARE, 4 July 2025 Reasons for Order MUZENDA J: on 15 November 2024 I gave the following order in chambers.: “The application for leave is apparently inordinate; the assessment of the record of proceedings points to the fact that there were no prospects of success on appeal; therefore the application is declined.” This order came as a result of an application made by the two applicants for leave to appeal to the Supreme Court made in terms of s 44(2) of the High Court Act [Chapter 7:06]. On 30 June 2025 I received a letter from the Registrar of the Supreme Court asking for my reasons for the above order. These are they. Background Facts The first applicant was a police constable stationed at Rusape Rural Police Station and second applicant is his younger brother. The state alleged that both applicants stole two bovine beasts from the grazing pastures. On 15 November 2020 applicants stated that they bought two ill beasts, one from one Mariah Kadengu and the other from a “Mupostori”. On 20 November 2020 the applicants sold the two oxen to Surrey Abattoir using a stock clearance papers written by first applicant in second applicant’s names, the name of the seller was captured as Ms. Magaret Chitiyo both applicants’ aunt. First applicant acquired a warrant of animal permit in his name for the same 2 oxen. Complainant recovered a rope she used to secure a bell on one of her oxen which had been stolen from one of applicant’s car. Both applicants were tried and convicted and were sentenced to 10 years imprisonment, of which a year imprisonment was suspended on condition applicants restitute the complainant. Applicants appealed to this court and on 23 February 2022 we dismissed the appeal and I gave a long judgment under HCMT 27/22 dated 5 July 2022 with the concurrence of Charewa J. On 7 November 2024 applicants filed a notice of application for leave to appeal to the Supreme Court against the dismissal of the appeal against both conviction and sentence. The applications for leave to appeal to the Supreme Court was premised on “the discovery of new evidence” by the applicants. The alleged discovery of new evidence was done post the dismissal of the appeal by this court. According to the applicants, there was at Rusape Central Police Station, complainant’s affidavit confirming recovery of the beasts and the affidavit by complainant alluded to the Criminal Record Book Numbers relating to applicants’ case. To the applicants this new evidence was not available during the initial trial and subsequent appeal and it was the anticipation of the appellants to have a Supreme Court revisit the whole matter. It was added by both applicants that complainant’s failure to identify (and produce) cattle hides to prove ownership placed doubt on her evidence. To the applicants the recovery of the bovine beasts lay a strong basis of strong prospects of success on appeal. The application for leave to appeal to the Supreme Court was opposed by the National Prosecuting Authority. To the state, applicants were to file their application for leave to appeal within a period of 10 days calculated from the date of the dismissal of the appeal. Applicants did not apply for condonation and it was the contention of the state that applicants could not make an application for leave out of time without being condoned first. As regards the introduction of the new evidence the state contended that the beasts collected by the complainant are totally distinct from the description of cattle which led to applicants’ conviction and subsequent appeal. What complainant recovered later were one black and brown cow and one heifer with black and white patches as compared to her one brown ox with white patches and one grey ox linking both applicants to the offence of stock theft which led to their conviction. Based on this distinction alone to the state the prospects of success on appeal was but non-existent nor arguable. Disposition The most crucial evidence in this application relates to what applicants perceive as new evidence as per documents attached to their application. The cattle that led to applicants’ conviction relates to two oxen and that constitute new evidence are a cow and a heifer. As a result, there is no evidence attached by both applicants that can be adjudged by this court to qualify as new evidence capable for reconstruction by a trial court. There is no probative value on the alleged affidavit which would place doubt on the conviction of both applicants. In any case it is apparent that from the record of proceedings that both applicants did not apply for condonation before filing for leave to appeal. As self-actors they may be condoned but a court has a duty to look at the explanation for delay which applicants did not even try to explain in their affidavits. The appeal was dismissed on 23 February 2022 and this application for leave was issued by the Registrar on 7 November 2024 2 years 9 months down the line. There is no doubt that the application is obviously inordinate. No plausible or acceptable explanation has been advanced by both applicants. On the aspects of prospects of success on appeal, the identity of beasts allegedly recovered by the complainant after the dismissal of their appeal by the High Court in February 2022 is totally distinct from the two bovine oxen which led to the conviction of the applicants. After dismissing the applicants’ appeal against conviction this court became functus officio and could only be seized with the matter if a proper application for condonation and leave to appeal is properly placed before it. Applicants failed to establish that and the application is declined.