MUPARUTSA v STATE (41 of 2025) [2025] ZWMTHC 41 (27 May 2025)

3 HCMTJ 41-25 HCMTCR 1057/25 MOSES MUPARUTSA versus THE STATE HIGH COURT OF ZIMBABWE MUZENDA J MUTARE, 27 May 2025 CHAMBER APPLICATION MUZENDA J: ON 1 July 2025 applicant filed a composite application for leave to note an appeal out of time and leave to prosecute an appeal in person. He attached a manuscript affidavit explaining reasons that precipitated the delay which basically touch on ignorance of the laws applicable to appeals from a lower court to a superior court. In his affidavit he also explained the challenges he faced securing a transcribed record. The application is opposed by the state. Background On 23 May 2023 applicant was arraigned at Mutare Regional Magistrate for Rape as defined in s 65(1) of the Criminal Law Code [Chapter 9:23]. The allegations by the state were that on an unknown date to the prosecutor but in the month of April 2023 at Tsvingwe Medium Density, Penhalonga, applicant had sexual intercourse with his 4-year-old daughter who at law is incapable of giving consent to sexual intercourse. The state outline sets the facts thus: Applicant is the biological father of the complainant. On 5 April 2023 at around 0830 hours complainant’s step mother was doing her laundry when she came across complainant’s blood-stained dress. She asked complainant about this blood-stained dress and she did not respond. The step mother called two neighbours, showed them the dress and it was at that stage that complainant narrated her ordeal linking the applicant, that applicant laid her on the bed and had sex with her once. She was threatened by applicant against telling anyone about the sexual encounter and if she dare did, applicant was going to beat her. The matter was then reported to the police and applicant was arrested. On the date of trial, applicant pleaded not guilty. In his defence outline applicant totally denied ethe allegations and told the trial court that it was a fabrication by his wife whom he had had a misunderstanding. The state led evidence from the complainant’s stepmother, Getrude Chamboko, a neighbour, Lucia Manyemi and the complainant. The medical affidavit reflected that complainant was medically examined on 5 April 2023 and the medical examiner noted a swollen clitoris and urethra, bruises were also noticed on the walls of complainant’s genitalia. It was further noted by the medical expert that complainant “looked miserable during examination”. During the testimony of the applicant he added that the injuries found on complainant’s private parts were as a result of complainant’s step mother inserting a maize cob into her private parts. In its judgment the learned Regional Magistrate dealt with how a judicial officer assesses evidence of young children particularly in sexual assault cases. The court remarked that a 3 1/2 - 4 year child was found by the trier of facts “to be clear, and precise and the court did not find any doubts in her testimony.” The trial court dismissed applicant’s allegations that the young girl had been coached. The court also explained why it did not place value on changes in the complainant’s evidence under oath and concluded that the young girl cannot concoct such evidence and came to a conclusion that the complainant was a credible witness. The trial court also made a further finding that applicant gave diverse versions as why his wife fabricated the story. These versions stretch from applicant not securing a job, the change of sleeping arrangements at the house and later the issue of the US$20 which was given to applicant’s brother. The trial court dismissed the complainant’s defence of fabrication. About the maize cob, the court made a finding that complainant’s step mother virtually relied on applicant’s brother for survival and the suggestion of the maize cob was thrown in by applicant’s brother as a way of finding an excuse to exculpate the applicant. In other words the trial court accepted the explanation proffered by applicant’s wife and rejected that the injuris found on the complainants’ genitalia were authored by a maize cob. The court then relied on the evidence of the complainant, her step mother and Lucia to convict the applicant. It concluded that the state had managed to prove the essential elements of the preferred charge. Appellant was sentenced to 20 years imprisonment. In its sentencing judgment the learned Regional Magistrate went at length looking at both mitigatory and aggravatory circumstances of the applicant and the circumstances of the case before her. The record of proceedings also shows that the court explained the constitutional rights of an accused in a criminal trial and most importantly a right to be represented by a lawyer of one’s choice, applicant chose to self-act. Sections 188 and 189 of the Code were also explained and understood by the applicant. Applicant gave his defence outline, was given an opportunity to cross-examine himself after he was cross-examined by the prosecution. It is upon this scenario that applicant drafted his grounds of appeal as well as this application before me. Applicant’s proposed grounds of appeal against conviction are crafted as follows: “1. The court a quo erred at procedure by not explaining applicant’s right concerning the issuing period of the medical affidavit before it has been tendered for it to be admissible in terms of s 278(II) of the Criminal Procedure and Evidence Act [Chapter 9:07] to cure the admissibility of the affidavit and as it stands the trial was not procedurally fair. The court erred by discrediting the issue of maize cob used on the complainant in order to convict the applicant yet the complainant confirms that (see p 8) (typed) of the record of proceedings on last question, also see p 9 (typed) first two questions answers.) The court a quo erred by not observing that the case in order to convict the applicant, yet complex cases cannot be regarded as fair trial without legal representative, which was violation of the applicant’s custodial right to a fair trial as enshrined in s 69(10 of the Constitution of Zimbabwe, amendment (No. 20) 2013. The court a quo erred by convicting the applicant basing with the conclusion that it was the applicant (who) caused the bruising and swollen clitoris and urethra yet the complainant had actually confirmed that the maize cob had been used on complainant.The court a quo erred by convicting the applicant without explaining the reason s of discrediting the applicant’s defence outline yet applicant’s defence had been proven to be that indeed the applicant and his wife made some misunderstanding the previous night before the false allegations started.The court a quo erred by convicting the applicant and failed to observe that the case which was before it was a fabrication one as evidenced by the inconsistence from the state witness.The court a quo erred at procedure by not being impartial and fair by accepting skirt to be tendered through the second witness in order to convict the applicant, instead of the skirt to be tendered through the complainant. The court a quo erred by convicting the applicant basing with the suggested actions of the applicant’s brothers’ wife without calling her to testify so that evidence can be taken under oath than to speculate which was a misdirection.The court a quo erred at procedure by being partial to the state in order to convict the applicant where the court a quo tried to justify the postponement during trial by indicating that the complainants was tired and wanted to sleep, yet in the record there is no such indication at all.The court a quo’s judgment deserves to be faulted because it is clear that there is nowhere the applicant can be said he is the sole perpetrator of this case upon considering facts established above. The court a quo erred by convicting the applicant basing with the evidence which has been discredited by cross-examination.The court a quo erred by not exercising its powers on s 232 of the Criminal Procedure and Evidence Act, [Chapter 9:07] for the purposes of clearing inconsistencies, grey areas and fully esquire from the applicant’s brother’s wife investigation officer and the nurse who compiled the medical affidavit to clear issues arises.(sic) The court a quo erred by convicting the applicant without applying cautious rules since complainant falls under suspect witnesses where their evidence should be treated with caution. AD SENTENCE The court a quo erred by not giving reasons of not suspending any portion of sentence considering that the applicant had been regarded as a first offender. The court a quo erred and misdirected itself by failing to take into consideration the fact that the sentence was disturbingly inappropriate, especially to a first offender and it induces a sense of shock. The court a quo misdirected itself in over-emphasising the crime and under-estimating the applicant’s character and circumstances of the crime. It is contented that the moral blameworthiness of the applicant was not properly analysed and applied which resulted in the court a quo imposing a sentence without any portion suspended. WHEREFORE the applicant prays that the application succeeds and that this conviction and sentence be set aside and be substituted by the following verdict, that the applicant be acquitted and discharged.” In applicant’s view he perceived that he has prospects of success on the matter. He goes on in his affidavit to highlight areas of shortcomings of the state witnesses and state case. He prays not for granting of the application but the setting aside of his conviction and sentence. The application is opposed by the state. In its opposing papers the respondent contend that applicant was convicted and sentenced on 16 July 2023, and calculating the period of delay, it was almost 2 years up to the time the current application was filed. Respondent submitted further that applicant’s lack of knowledge of the appeal process should be rejected. The excuse by applicant that it took long to secure a transcript of the record is also not convincing for it took almost a full year for the applicant to secure a copy. So to the respondent the application is well inordinately out of time and should be declined. On the prospects of success on appeal the state added that applicant bases his hope on the discrepancies of the witnesses and to the state applicant has not shown that such discrepancies go to the root of the matter and in any case the relearned trial Regional Magistrate believed the young girl (complainant) the medical evidence and applicant’s wife’s evidence before convicting the applicant. To the state the prospects of success on appeal do not exist. Application for leave to prosecute appeal in person Before a judicial officer grants a convict this kind of leave to prosecute an appeal in person a judge in chambers must critically look at the proposed notice and grounds of appeal. The relief sought is an essential aspect to be viewed further because of the well-established principle that if an appeal as well as the relief sought are cumulatively defective there will not be any appeal to talk about in the first place. I have deliberately copied applicant’s notice, grounds of appeal and relief sought so as for all to get a glimpse of the final copy of the structure of the intended notice and grounds of appeal. An examination of the draft shows that they suffer from a defect that is targeted by the rules relating to appeals. The proposed grounds are imprecise, inconcise, repetitive and argumentative. Applicant’s proposed appeal may suffer a still birth before being heard on the merits. The rules relating to appeals do not provide for rules for self-actors. The rules are uniformly applied and demand strict compliance with the rules without exception. The rules relating to appeals do not provide for people or appellants who approach the court with their knees on the ground for an appeal court to sift the record on possible grounds of appeal. The onus lies on the appellant to present before the court notice and grounds of appeal that comply with the rules of this court. Applicant has shown that he will not be able to prosecute his appeal in person. He needs assistance. The leave to prosecute the appeal in person is therefore declined. Application for Condonation Three cardinal issues to consider before granting this relief are now well established. The length of delay, the cause of the delay and the prospects of success. The delay in casu is close to 2 years and applicant attributes the delay partly to ignorance of rules pertaining to appeals and the delayed availability of a transcribed record of proceedings. Applicant attended the proceedings and had a deep appreciation of what he perceived the trial court allegedly misdirected itself. There was nothing wrong in applicant filing notice and grounds of appeal and when the transcribed record of proceedings is availed, applicant would be at large to amend his notice of appeal as well as the grounds based on the fact that at the time the notice and grounds of appeal were lodged, he had no transcribed record. A delay of close to 2 years is in my view is inordinate and the explanation proffered by the applicant for the delay is cursory and inadequate. I will make a finding that applicant failed to give a plausible reason for the delay and it is inordinate. Applicant allegedly sexually assaulted his biological daughter. He pleaded not guilty and the matter proceeded to a full trial. The trial court made a finding that the complainant was credible and it also accepted the step mother’s evidence as well as that of Lucia. Issues of credibility lie in the domain of the trial court and a superior court rarely interferes with such a finding. All issues complained about by applicant are well covered by the trial magistrate in her judgment and the record amply shows that. I have already pointed out the challenges in applicant’s draft appeal and also the manner the trial court reasoned why it convicted the applicant, my honest view is that the prospects of success on appeal are but a dream. There are no realistic, tangible and arguable prospects of success. It will be a futile pursuit doomed to collapse. The application for condonation of late noting of appeal, the application for leave to present the appeal in person are declined. 3 HCMTJ 41-25 HCMTCR 1057/25 3 HCMTJ 41-25 HCMTCR 1057/25 MOSES MUPARUTSA versus THE STATE HIGH COURT OF ZIMBABWE MUZENDA J MUTARE, 27 May 2025 CHAMBER APPLICATION MUZENDA J: ON 1 July 2025 applicant filed a composite application for leave to note an appeal out of time and leave to prosecute an appeal in person. He attached a manuscript affidavit explaining reasons that precipitated the delay which basically touch on ignorance of the laws applicable to appeals from a lower court to a superior court. In his affidavit he also explained the challenges he faced securing a transcribed record. The application is opposed by the state. Background On 23 May 2023 applicant was arraigned at Mutare Regional Magistrate for Rape as defined in s 65(1) of the Criminal Law Code [Chapter 9:23]. The allegations by the state were that on an unknown date to the prosecutor but in the month of April 2023 at Tsvingwe Medium Density, Penhalonga, applicant had sexual intercourse with his 4-year-old daughter who at law is incapable of giving consent to sexual intercourse. The state outline sets the facts thus: Applicant is the biological father of the complainant. On 5 April 2023 at around 0830 hours complainant’s step mother was doing her laundry when she came across complainant’s blood-stained dress. She asked complainant about this blood-stained dress and she did not respond. The step mother called two neighbours, showed them the dress and it was at that stage that complainant narrated her ordeal linking the applicant, that applicant laid her on the bed and had sex with her once. She was threatened by applicant against telling anyone about the sexual encounter and if she dare did, applicant was going to beat her. The matter was then reported to the police and applicant was arrested. On the date of trial, applicant pleaded not guilty. In his defence outline applicant totally denied ethe allegations and told the trial court that it was a fabrication by his wife whom he had had a misunderstanding. The state led evidence from the complainant’s stepmother, Getrude Chamboko, a neighbour, Lucia Manyemi and the complainant. The medical affidavit reflected that complainant was medically examined on 5 April 2023 and the medical examiner noted a swollen clitoris and urethra, bruises were also noticed on the walls of complainant’s genitalia. It was further noted by the medical expert that complainant “looked miserable during examination”. During the testimony of the applicant he added that the injuries found on complainant’s private parts were as a result of complainant’s step mother inserting a maize cob into her private parts. In its judgment the learned Regional Magistrate dealt with how a judicial officer assesses evidence of young children particularly in sexual assault cases. The court remarked that a 3 1/2 - 4 year child was found by the trier of facts “to be clear, and precise and the court did not find any doubts in her testimony.” The trial court dismissed applicant’s allegations that the young girl had been coached. The court also explained why it did not place value on changes in the complainant’s evidence under oath and concluded that the young girl cannot concoct such evidence and came to a conclusion that the complainant was a credible witness. The trial court also made a further finding that applicant gave diverse versions as why his wife fabricated the story. These versions stretch from applicant not securing a job, the change of sleeping arrangements at the house and later the issue of the US$20 which was given to applicant’s brother. The trial court dismissed the complainant’s defence of fabrication. About the maize cob, the court made a finding that complainant’s step mother virtually relied on applicant’s brother for survival and the suggestion of the maize cob was thrown in by applicant’s brother as a way of finding an excuse to exculpate the applicant. In other words the trial court accepted the explanation proffered by applicant’s wife and rejected that the injuris found on the complainants’ genitalia were authored by a maize cob. The court then relied on the evidence of the complainant, her step mother and Lucia to convict the applicant. It concluded that the state had managed to prove the essential elements of the preferred charge. Appellant was sentenced to 20 years imprisonment. In its sentencing judgment the learned Regional Magistrate went at length looking at both mitigatory and aggravatory circumstances of the applicant and the circumstances of the case before her. The record of proceedings also shows that the court explained the constitutional rights of an accused in a criminal trial and most importantly a right to be represented by a lawyer of one’s choice, applicant chose to self-act. Sections 188 and 189 of the Code were also explained and understood by the applicant. Applicant gave his defence outline, was given an opportunity to cross-examine himself after he was cross-examined by the prosecution. It is upon this scenario that applicant drafted his grounds of appeal as well as this application before me. Applicant’s proposed grounds of appeal against conviction are crafted as follows: “1. The court a quo erred at procedure by not explaining applicant’s right concerning the issuing period of the medical affidavit before it has been tendered for it to be admissible in terms of s 278(II) of the Criminal Procedure and Evidence Act [Chapter 9:07] to cure the admissibility of the affidavit and as it stands the trial was not procedurally fair. The court erred by discrediting the issue of maize cob used on the complainant in order to convict the applicant yet the complainant confirms that (see p 8) (typed) of the record of proceedings on last question, also see p 9 (typed) first two questions answers.) The court a quo erred by not observing that the case in order to convict the applicant, yet complex cases cannot be regarded as fair trial without legal representative, which was violation of the applicant’s custodial right to a fair trial as enshrined in s 69(10 of the Constitution of Zimbabwe, amendment (No. 20) 2013. The court a quo erred by convicting the applicant basing with the conclusion that it was the applicant (who) caused the bruising and swollen clitoris and urethra yet the complainant had actually confirmed that the maize cob had been used on complainant. The court a quo erred by convicting the applicant without explaining the reason s of discrediting the applicant’s defence outline yet applicant’s defence had been proven to be that indeed the applicant and his wife made some misunderstanding the previous night before the false allegations started. The court a quo erred by convicting the applicant and failed to observe that the case which was before it was a fabrication one as evidenced by the inconsistence from the state witness. The court a quo erred at procedure by not being impartial and fair by accepting skirt to be tendered through the second witness in order to convict the applicant, instead of the skirt to be tendered through the complainant. The court a quo erred by convicting the applicant basing with the suggested actions of the applicant’s brothers’ wife without calling her to testify so that evidence can be taken under oath than to speculate which was a misdirection. The court a quo erred at procedure by being partial to the state in order to convict the applicant where the court a quo tried to justify the postponement during trial by indicating that the complainants was tired and wanted to sleep, yet in the record there is no such indication at all. The court a quo’s judgment deserves to be faulted because it is clear that there is nowhere the applicant can be said he is the sole perpetrator of this case upon considering facts established above. The court a quo erred by convicting the applicant basing with the evidence which has been discredited by cross-examination. The court a quo erred by not exercising its powers on s 232 of the Criminal Procedure and Evidence Act, [Chapter 9:07] for the purposes of clearing inconsistencies, grey areas and fully esquire from the applicant’s brother’s wife investigation officer and the nurse who compiled the medical affidavit to clear issues arises.(sic) The court a quo erred by convicting the applicant without applying cautious rules since complainant falls under suspect witnesses where their evidence should be treated with caution. AD SENTENCE The court a quo erred by not giving reasons of not suspending any portion of sentence considering that the applicant had been regarded as a first offender. The court a quo erred and misdirected itself by failing to take into consideration the fact that the sentence was disturbingly inappropriate, especially to a first offender and it induces a sense of shock. The court a quo misdirected itself in over-emphasising the crime and under-estimating the applicant’s character and circumstances of the crime. It is contented that the moral blameworthiness of the applicant was not properly analysed and applied which resulted in the court a quo imposing a sentence without any portion suspended. WHEREFORE the applicant prays that the application succeeds and that this conviction and sentence be set aside and be substituted by the following verdict, that the applicant be acquitted and discharged.” In applicant’s view he perceived that he has prospects of success on the matter. He goes on in his affidavit to highlight areas of shortcomings of the state witnesses and state case. He prays not for granting of the application but the setting aside of his conviction and sentence. The application is opposed by the state. In its opposing papers the respondent contend that applicant was convicted and sentenced on 16 July 2023, and calculating the period of delay, it was almost 2 years up to the time the current application was filed. Respondent submitted further that applicant’s lack of knowledge of the appeal process should be rejected. The excuse by applicant that it took long to secure a transcript of the record is also not convincing for it took almost a full year for the applicant to secure a copy. So to the respondent the application is well inordinately out of time and should be declined. On the prospects of success on appeal the state added that applicant bases his hope on the discrepancies of the witnesses and to the state applicant has not shown that such discrepancies go to the root of the matter and in any case the relearned trial Regional Magistrate believed the young girl (complainant) the medical evidence and applicant’s wife’s evidence before convicting the applicant. To the state the prospects of success on appeal do not exist. Application for leave to prosecute appeal in person Before a judicial officer grants a convict this kind of leave to prosecute an appeal in person a judge in chambers must critically look at the proposed notice and grounds of appeal. The relief sought is an essential aspect to be viewed further because of the well-established principle that if an appeal as well as the relief sought are cumulatively defective there will not be any appeal to talk about in the first place. I have deliberately copied applicant’s notice, grounds of appeal and relief sought so as for all to get a glimpse of the final copy of the structure of the intended notice and grounds of appeal. An examination of the draft shows that they suffer from a defect that is targeted by the rules relating to appeals. The proposed grounds are imprecise, inconcise, repetitive and argumentative. Applicant’s proposed appeal may suffer a still birth before being heard on the merits. The rules relating to appeals do not provide for rules for self-actors. The rules are uniformly applied and demand strict compliance with the rules without exception. The rules relating to appeals do not provide for people or appellants who approach the court with their knees on the ground for an appeal court to sift the record on possible grounds of appeal. The onus lies on the appellant to present before the court notice and grounds of appeal that comply with the rules of this court. Applicant has shown that he will not be able to prosecute his appeal in person. He needs assistance. The leave to prosecute the appeal in person is therefore declined. Application for Condonation Three cardinal issues to consider before granting this relief are now well established. The length of delay, the cause of the delay and the prospects of success. The delay in casu is close to 2 years and applicant attributes the delay partly to ignorance of rules pertaining to appeals and the delayed availability of a transcribed record of proceedings. Applicant attended the proceedings and had a deep appreciation of what he perceived the trial court allegedly misdirected itself. There was nothing wrong in applicant filing notice and grounds of appeal and when the transcribed record of proceedings is availed, applicant would be at large to amend his notice of appeal as well as the grounds based on the fact that at the time the notice and grounds of appeal were lodged, he had no transcribed record. A delay of close to 2 years is in my view is inordinate and the explanation proffered by the applicant for the delay is cursory and inadequate. I will make a finding that applicant failed to give a plausible reason for the delay and it is inordinate. Applicant allegedly sexually assaulted his biological daughter. He pleaded not guilty and the matter proceeded to a full trial. The trial court made a finding that the complainant was credible and it also accepted the step mother’s evidence as well as that of Lucia. Issues of credibility lie in the domain of the trial court and a superior court rarely interferes with such a finding. All issues complained about by applicant are well covered by the trial magistrate in her judgment and the record amply shows that. I have already pointed out the challenges in applicant’s draft appeal and also the manner the trial court reasoned why it convicted the applicant, my honest view is that the prospects of success on appeal are but a dream. There are no realistic, tangible and arguable prospects of success. It will be a futile pursuit doomed to collapse. The application for condonation of late noting of appeal, the application for leave to present the appeal in person are declined.