MUSARURWA v THE STATE (27 of 2026) [2026] ZWHHC 17 (9 January 2026)

3 HH 27-26 HCHCR 4082/24 LEEROY TENDAI MUSARURWA versus THE STATE HIGH COURT OF ZIMBABWE WAMAMBO J HARARE, 9 January 2026 Application for condonation of late noting of appeal K I Munyoro, for the applicant R Chikosha, for the respondent WAMAMBO J: The applicant seeks to be condoned for noting an appeal later than the Rules permit. I dismissed the application. Applicant now seeks full reasons hereof. The reasons follow hereunder. Applicant appeared before a Magistrate sitting at Chitungwiza Magistrate Court. A trial ensued and applicant was found guilty of contravening s 65 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He was thereafter sentenced to 15 years imprisonment. In motivation of his application applicant avers as follows: He was not represented during the trial proceedings up to sentence. His erstwhile legal practitioners were engaged through his relatives. They inspected the record and were not satisfied with its state. The record was then transcribed leading to the drafting of grounds of appeal and the filing of this application. the reasons for conviction and sentence were not available upon perusal of the record. The record was not legible. Applicant enjoys good prospects of success on appeal as his defence contains what is referred to as “a reachable explanation.” The State evidence contained loopholes. In the record is a document titled “Notice of incorporating grounds of appeal” which contains ten grounds of appeal against conviction and another three grounds of appeal against sentence. The applicant avers in the alternative that a sentence of 5 years imprisonment fits the circumstance of this case. In oral submissions before me the applicant averred as follows: The second state witness was not the first person to be informed of the rape by the complainant. The disclosure was not voluntary. The Trial Court relied on the medical report produced yet the background is that the complainant was sexually abused before. The dolls employed during the trial and the young complainant’s evidence were not reliable. The respondent supported the conviction and sentence. In summary the submissions made were as follows: The Trial Court did not rely solely on the medical report. Had it not been for the applicant’s wife the offence would not have been discovered. The wife observed applicant and complainant emerging from the bathroom one after the other and suspected that something was amiss. The State did not call her because of the fact that she stands to protect her husband. The assault in the complainant occurred after the rape was discovered. The complainant’s age was a factor to be considered. In an application for condonation the requirements were spelt out in a number of cases. I refer here to the case of Remigio Siyakurima and Another v Majory Kunaka & Others HH 464/24 wherein Takuva J enumerated the requirements as follows: “The requirements for an application of this nature are pedestrian in our law. In Mohdd & Ors v Lunga (NO) & Ors HC 348/2013 it was held that ‘The broad principles that guide the court in an application for condonation were set out in the case of United Plant Hire (Pvt) Ltd v Hills and Ors 1976(1) SA 717(A) in the following words:- ‘It is well settled that in considering applications for condonation, the court has discretion to be exercised judicially upon consideration of all the facts and in the essence it is a question of fairness to both sides. In enquiry relevant consideration may include the degree of non compliance with the Rule, the explanation therefore, the prospects of success on the merits, the importance of the case, the respondent’s interest in finality of his judgment, the convenience of the Court and avoidance of unnecessary delay in the administration of justice see also Kodzera v Secretary of Health & Ors 1999(1) ZLR 313(S).”’ This application was filed on 3 September 2024 while the application was convicted on 24 May 2024. The delay in noting an appeal is attributed to the reasons as referred to earlier. I consider the delay rather long. The reasons given of the legibility or otherwise of the record is not readily demonstrated by the applicant. The issue of the relatives engaging a legal practitioner in the light of applicant having been a self actor does not seem to me to distract from the fact that the appeal was noted late. I say so because a self acting applicant could equally have noted an appeal on time. The judgment and sentence would be read before the applicant in open court. Applicant could have drafted grounds of appeal therefrom. If the grounds were later found by his legal practitioners to be clumsy or not in tandem with the Rules the legal practitioners could easily amend the raised grounds. That there was no attempt at least demonstrated on record that there was such an attempt inclines me to find that the reasons given are not reasonable. The period of delay is also long. That the period of noting the appeal was lengthy and the reasons proferred not reasonable is not the end of the matter. I also have to consider the prospects of success on appeal. To consider the prospects of success on appeal. I have to closely consider the evidence given in the Trial Court. The applicant’s defence outline was basically that the charge of rape against him is a fabrication. His view was that there is bad blood. He gave a defence outline to the effect that complainant was raped by her uncle who later committed suicide. According, to the applicant he was accused at as the one who caused the uncle to commit suicide by continuously telling the uncle that he had raped the complainant. The dispute culminated in peace orders being granted says the applicant. The complainant an eleven year old testified as follows: The applicant, her uncle’s son came out of his room after she was sent by his wife to collect some fruit. She met him at the toilet door and he held her hand and dragged her to the bathroom. All this while she was protesting against his actions. Soon thereafter the rape occurred. Her uncle’s wife followed her and asked why she had emerged from the bathroom at the same time with applicant. She made a report of rape to the uncle’s wife who then informed her mother, who assaulted her for not telling her earlier. The applicant assaulted his wife in connection with the matter. In cross examination, applicant failed to dislodge the evidence tendered by complainant. In fact, to his detriment applicant disclosed an earlier attempt by him to rape her. I am of the considered view that the complainant’s evidence was credible. The narration of evidence was consistent and could hardly have been untruthful. The applicant never asked of her that she was lying because it was a fabrication because of the bad blood in the family. That assertion is the bedrock of his defence. The complainants mother corroborated her daughter’s testimony in material respects. Among other pieces of evidence she described how she knew of the rape through applicant wife. She also testified as to how the rape was perpetrated as informed of her by the complainant. Again, nothing of significance came out of the cross examination of the mother of complainant. I am alive to the fact that the applicant’s wife having been suspicious of the movement of the complainant and applicant and after the assault and her relationship as a wife to applicant would not cooperate with the authorities to implicate applicant. Again, the bedrock of applicant’s defence of bad blood was not asked of the complainant’s mother. Indeed, in his evidence in chief applicant did not advert to the bad blood he had outlined in his defence outline. The applicant’s wife the only other witness in the defence case, apart from the applicant himself clearly gave terse evidence in chief. Her version was clearly in favour of the applicant, her husband. The totality of the evidence is that the complainant gave credible evidence of rape. On his part applicant’s allegation in the defence outline were not persisted by him in his oral evidence, nor demonstrated by his wife. I am of the considered view in the circumstances of this case that applicant enjoys dim prospects of success on appeal. The sentences issue was not pursued before me in oral submissions. In any case the rape of an eleven year old relative is a grave offence. The sentence appears to be consistent with the circumstances, precedent and the law. The prior rape of complainant was not asked of her in evidence. Use of dolls is a sanctioned procedure particularly when dealing with a child witness I observed nothing untoward in such use in the trial. For the above reasons I ordered as follows: Application for condonation for late noting of an appeal against both conviction and sentence be and is hereby dismissed. Wamambo J:……………………………. Macharaga Law Chambers, applicants legal practitioners National Prosecuting Authority, respondents legal practitioners 3 HH 27-26 HCHCR 4082/24 3 HH 27-26 HCHCR 4082/24 LEEROY TENDAI MUSARURWA versus THE STATE HIGH COURT OF ZIMBABWE WAMAMBO J HARARE, 9 January 2026 Application for condonation of late noting of appeal K I Munyoro, for the applicant R Chikosha, for the respondent WAMAMBO J: The applicant seeks to be condoned for noting an appeal later than the Rules permit. I dismissed the application. Applicant now seeks full reasons hereof. The reasons follow hereunder. Applicant appeared before a Magistrate sitting at Chitungwiza Magistrate Court. A trial ensued and applicant was found guilty of contravening s 65 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He was thereafter sentenced to 15 years imprisonment. In motivation of his application applicant avers as follows: He was not represented during the trial proceedings up to sentence. His erstwhile legal practitioners were engaged through his relatives. They inspected the record and were not satisfied with its state. The record was then transcribed leading to the drafting of grounds of appeal and the filing of this application. the reasons for conviction and sentence were not available upon perusal of the record. The record was not legible. Applicant enjoys good prospects of success on appeal as his defence contains what is referred to as “a reachable explanation.” The State evidence contained loopholes. In the record is a document titled “Notice of incorporating grounds of appeal” which contains ten grounds of appeal against conviction and another three grounds of appeal against sentence. The applicant avers in the alternative that a sentence of 5 years imprisonment fits the circumstance of this case. In oral submissions before me the applicant averred as follows: The second state witness was not the first person to be informed of the rape by the complainant. The disclosure was not voluntary. The Trial Court relied on the medical report produced yet the background is that the complainant was sexually abused before. The dolls employed during the trial and the young complainant’s evidence were not reliable. The respondent supported the conviction and sentence. In summary the submissions made were as follows: The Trial Court did not rely solely on the medical report. Had it not been for the applicant’s wife the offence would not have been discovered. The wife observed applicant and complainant emerging from the bathroom one after the other and suspected that something was amiss. The State did not call her because of the fact that she stands to protect her husband. The assault in the complainant occurred after the rape was discovered. The complainant’s age was a factor to be considered. In an application for condonation the requirements were spelt out in a number of cases. I refer here to the case of Remigio Siyakurima and Another v Majory Kunaka & Others HH 464/24 wherein Takuva J enumerated the requirements as follows: “The requirements for an application of this nature are pedestrian in our law. In Mohdd & Ors v Lunga (NO) & Ors HC 348/2013 it was held that ‘The broad principles that guide the court in an application for condonation were set out in the case of United Plant Hire (Pvt) Ltd v Hills and Ors 1976(1) SA 717(A) in the following words:- ‘It is well settled that in considering applications for condonation, the court has discretion to be exercised judicially upon consideration of all the facts and in the essence it is a question of fairness to both sides. In enquiry relevant consideration may include the degree of non compliance with the Rule, the explanation therefore, the prospects of success on the merits, the importance of the case, the respondent’s interest in finality of his judgment, the convenience of the Court and avoidance of unnecessary delay in the administration of justice see also Kodzera v Secretary of Health & Ors 1999(1) ZLR 313(S).”’ This application was filed on 3 September 2024 while the application was convicted on 24 May 2024. The delay in noting an appeal is attributed to the reasons as referred to earlier. I consider the delay rather long. The reasons given of the legibility or otherwise of the record is not readily demonstrated by the applicant. The issue of the relatives engaging a legal practitioner in the light of applicant having been a self actor does not seem to me to distract from the fact that the appeal was noted late. I say so because a self acting applicant could equally have noted an appeal on time. The judgment and sentence would be read before the applicant in open court. Applicant could have drafted grounds of appeal therefrom. If the grounds were later found by his legal practitioners to be clumsy or not in tandem with the Rules the legal practitioners could easily amend the raised grounds. That there was no attempt at least demonstrated on record that there was such an attempt inclines me to find that the reasons given are not reasonable. The period of delay is also long. That the period of noting the appeal was lengthy and the reasons proferred not reasonable is not the end of the matter. I also have to consider the prospects of success on appeal. To consider the prospects of success on appeal. I have to closely consider the evidence given in the Trial Court. The applicant’s defence outline was basically that the charge of rape against him is a fabrication. His view was that there is bad blood. He gave a defence outline to the effect that complainant was raped by her uncle who later committed suicide. According, to the applicant he was accused at as the one who caused the uncle to commit suicide by continuously telling the uncle that he had raped the complainant. The dispute culminated in peace orders being granted says the applicant. The complainant an eleven year old testified as follows: The applicant, her uncle’s son came out of his room after she was sent by his wife to collect some fruit. She met him at the toilet door and he held her hand and dragged her to the bathroom. All this while she was protesting against his actions. Soon thereafter the rape occurred. Her uncle’s wife followed her and asked why she had emerged from the bathroom at the same time with applicant. She made a report of rape to the uncle’s wife who then informed her mother, who assaulted her for not telling her earlier. The applicant assaulted his wife in connection with the matter. In cross examination, applicant failed to dislodge the evidence tendered by complainant. In fact, to his detriment applicant disclosed an earlier attempt by him to rape her. I am of the considered view that the complainant’s evidence was credible. The narration of evidence was consistent and could hardly have been untruthful. The applicant never asked of her that she was lying because it was a fabrication because of the bad blood in the family. That assertion is the bedrock of his defence. The complainants mother corroborated her daughter’s testimony in material respects. Among other pieces of evidence she described how she knew of the rape through applicant wife. She also testified as to how the rape was perpetrated as informed of her by the complainant. Again, nothing of significance came out of the cross examination of the mother of complainant. I am alive to the fact that the applicant’s wife having been suspicious of the movement of the complainant and applicant and after the assault and her relationship as a wife to applicant would not cooperate with the authorities to implicate applicant. Again, the bedrock of applicant’s defence of bad blood was not asked of the complainant’s mother. Indeed, in his evidence in chief applicant did not advert to the bad blood he had outlined in his defence outline. The applicant’s wife the only other witness in the defence case, apart from the applicant himself clearly gave terse evidence in chief. Her version was clearly in favour of the applicant, her husband. The totality of the evidence is that the complainant gave credible evidence of rape. On his part applicant’s allegation in the defence outline were not persisted by him in his oral evidence, nor demonstrated by his wife. I am of the considered view in the circumstances of this case that applicant enjoys dim prospects of success on appeal. The sentences issue was not pursued before me in oral submissions. In any case the rape of an eleven year old relative is a grave offence. The sentence appears to be consistent with the circumstances, precedent and the law. The prior rape of complainant was not asked of her in evidence. Use of dolls is a sanctioned procedure particularly when dealing with a child witness I observed nothing untoward in such use in the trial. For the above reasons I ordered as follows: Application for condonation for late noting of an appeal against both conviction and sentence be and is hereby dismissed. Wamambo J:……………………………. Macharaga Law Chambers, applicants legal practitioners National Prosecuting Authority, respondents legal practitioners