MUKONYORA v THE STATE (3 of 2026) [2026] ZWHHC 3 (2 January 2026)

4 HH 03-25 HCH 4537/25 TERRENCE MUKONYORA versus THE STATE HIGH COURT OF ZIMBABWE WAMAMBO J HARARE; 2 January 2026 Bail pending appeal A. Muziwi for the applicant C. Mchemwa for the respondent WAMAMBO J — This matter concerns an application for bail pending appeal. The applicant was found guilty of rape as defined in section 65(1) of the Criminal Codification and Reform Act Chapter 9:23. He was sentenced to 15 years imprisonment. Dissatisfied with both the conviction and sentence applicant filed a notice and grounds of appeal. The grounds of appeal read as follows: — “AD CONVICTION (1) The Court a quo committed an irregularity and misdirected itself in finding that the appellant raped the complainant contrary to the proved facts of consensual sexual intercourse. (2) The court a quo grossly misdirected itself in finding that the complainant voluntarily made the report when there was evidence that appellant’s intention to terminate their relationship was the cause for the report. (3) The court a quo grossly erred in convicting the accused person of rape when the complaint was not made at the earliest opportunity and to the first person to whom she could reasonably have been expected to make it. AD SENTENCE (1) The court a quo grossly erred and misdirected itself by imposing a sentence of 15 years imprisonment which sentence is so excessive as to induce a sense of shock and in circumstances where there were no aggravating circumstances to support same.” The applicant and the victim were employer and employee. On a date when the applicant’s wife was away the rape was committed according to the complainant. Phone calls were made by the victim to her uncle culminating in a report to the police. Some interventions were made by and/or on behalf of the applicant for charges to be withdrawn to no avail. The Learned Magistrate found the complainant credible and also found unfavourably on the applicant’s version of events. I am alive to the fact that the applicant’s position differs from that of an applicant who faces trial but has not yet been convicted. In this case applicant has already been convicted and sentenced by a competent Court. The reasons and analysis of the evidence forms part of the record of proceedings. The application’s submissions unfolded as follows: The applicant and complainant were in a relationship. The complainant contradicted herself. The medical report is not definite on the commission of rape. Basically, besides adding some flesh to the submissions applicant sought to justify the grounds of appeal as referred earlier to. Ultimately applicant is of the view that he has good prospects of success on appeal. Applicant avers that he is of fixed abode, and owns the property where the offence is alleged to have taken place. He further avers that he is employed at Zimplats, he is married and has dependants. He says that he has no passport or assets and connections outside the Zimbabwean border. He submits that he will not abscond. The applicant argues that his appeal on sentence is not doomed to failure. Among other issues he points out that the Magistrate took what he terms “an emotional and sensational approach to sentencing.” He further argues that the rape was not committed in aggravating circumstances as per the medical report and victim impact statement. It is further averred by applicant that the Trial Court placed a wrong emphasis on the discharge observed on complainant. The State is opposed to the application. The State is supportive of the findings by the Magistrate and submitted that the totality of the evidence proved the guilt of the applicant. On sentence the State avers that the offence was committed against a young person aged sixteen years who was a maid at the applicant’s house and thus should have been protected by the applicant. The State is of the view that ultimately applicant deserves an effective prison term. “ In Tineyi Tavengwa HMA 28/19 I referred to a number of relevant cases at pages 4—5 as follows:— In Tatenda Kamudyariwa v The State HH 97/19, Ndewere J at page 2 summarised the factors to be considered in a bail pending appeal as follows: — “As correctly pointed out by the applicant, the principles governing bail pending appeal were enumerated in State v Musasa SC 45/02 and State v Labuschagne 2003 (1) ZLR 644 (S) as follows:— the likelihood of abscondment (ii) the prospects of success on appeal(iii) the right of an individual to liberty (iv) the potential length of the delay before the appeal is heard. In Tigere Majani and Another v The State HH 642/17, Chitapi J said at page 2:— ‘The convict’s rights to bail after conviction does not arise as a fundamental right as guaranteed in Chapter 4 of the Constitution’’. The power of the Court to admit a convicted person to bail pending appeal as in this case do not derive from the Constitution but from the Criminal Procedure and Evidence Act (Chapter 9:07). Section 123 of the said enactment provides for the limited instances wherein the convicted and sentenced person may be admitted to bail by the magistrate or a judge of this Court or the Supreme Court as provided for therein.” In Dennis Scholz v The State HH 234/17, Tsanga J at page 2 said: When convicted and sentenced the presumption of innocence no longer prevails particularly so in cases of appeal against sentence. Where there are no positive grounds for granting bail, it is generally refused. The onus falls on the accused to show that he should be granted bail. Discharging such onus depends on two main factors:— (a) likelihood of appellant absconding which will depend on length of sentence passed and (b) the prospects of success on appeal see S v Dzawo 1988 (1) ZLR 536 (S). It is also a principle that the greater must be the prospects of success before bail should be granted. Other factors to be considered are the right to individual liberty and the likely delay before an appeal is heard.” I will proceed to consider the application before me with the principles as enunciated above in mind. As held by Chitapi J in Tigere Majani and Another v The State (supra) a convicted person’s rights after conviction do not derive from the Constitution but from Section 123 of the Criminal Procedure and Evidence Act Chapter 9:07. It is now well known by those who deal with appeals that they are now expeditiously disposed of. A very short time elapses between the noting and hearing of an appeal, everything else being equal. I thus take judicial notice of the fact that the length of delay in hearing an appeal is minimal, to say the least. I move to consider the issue of prospects of success. In most cases the prospects of success are interlinked with the risk of abscondment and the right to liberty. Invariably where the prospects of success are dim that generally will affect the chances of abscondment. Having little or no prospects of success may indeed in some cases motivate a convicted person to decide to abscond to avoid incarceration. Each case of course, depends on its own full circumstances. In considering the prospects of success, I will consider the grounds of appeal as raised. On the grounds of appeal as raised does the applicant have prospects of success on appeal is the question I will closely consider. The first ground of appeal speaks to consensual sexual intercourse. The ground is either couched in terms too broad or is unsure of the actual stance of the applicant — Is the ground generally motivating that the two had consensual sexual intercourse as a matter of course? Or is it saying on the date as alleged by the State there was consensual sexual intercourse? The latter would be the more relevant option, considering that the applicant is effectively complaining about being found guilty of rape on a particular day. If so, then the ground has no merit. I say so because applicant in his defense outline or evidence never alleged that on the date as averred by the State as the date of rape, there was consensual sexual intercourse. The applicant in his evidence feebly referred to a single occasion prior to the charge when he had consensual sexual intercourse with complainant. The Learned Magistrate considered the full circumstances and found that rape was committed. In the circumstances I am of the considered view that this ground is without merit for the purposes of the instant matter. I find dim prospects of success on the first ground. On the second ground of appeal, it is averred that the rape report was not only voluntarily made but it was made in circumstances where complainant was unhappy about the applicant's intention to terminate their relationship. A consideration of the cross examination of the complainant reflects only one question in relation to the allegation of complainant making a report of rape because of applicant's intention to end their affair. Surely if that was the basis for impugning applicant's testimony, more flesh would have been added to the single question. Issues of when the affair started, what was the occasion when applicant wanted to end the affair, how many times before the offence had the two been intimate are but some of the questions I would have expected to be asked of the complainant. Instead of asking some or more of the above questions defence counsel was satisfied with the answer given. There was no further querying or prompting on the answer, which indeed appears to have been a fair and consistent answer. I find in the circumstances that the allegation is not supported by the evidence or the probabilities in the circumstances of this case. I find that on ground two there are dim prospects of success on appeal. I move to ground three. I noted here that the report of rape was made on the same day. An initial attempt to report to an uncle was unsuccessful as he didn't respond to his phone as he was asleep. The uncle and complainant gave consistent testimony on this, and they did not materially differ on any other issue. Indeed according to both complainant and her uncle, when the uncle received the audio message he advised complainant to make a report to the police, which she did. A report to the applicant's wife could only prejudice complainant due to the fact that the wife is reasonably expected to support her husband. Such was to happen if one considers the latter overtures made to complainant to withdraw charges against applicant. I find that the 3rd ground of appeal does not reflect prospects of success on appeal. On sentence the ground is couched in broad terms however it speaks to an excessive sentence and that no aggravating circumstances exist in this case. I do not agree. This is a case of the rape of a sixteen-year-old employee by her employer, a man old enough to be her father. By virtue of her employment he was indeed the de facto father expected to defend and protect the young employee. There was trust involved. The young complainant left her door open, whilst she rested only to be rudely awakened by applicant intent on raping her whilst she was held by the throat. Planning could have been involved, complainant's evidence which evidence in totality reads well is that she was used to resting with her door open. No evidence was given of prior attempts to rape her by applicant. On the fateful day however applicant's wife was not present. Despite this complainant trusted that no unwelcome moves would be made by applicant. The complainant was a tender sixteen years old while applicant was at forty years old at the time of the commission of the offence. The age gap is quite substantial. Section 65 of the Criminal Law (Codification and Reform Act) Chapter 9:23 provides for a sentence of life imprisonment or a definite period of imprisonment of not less than fifteen years where there are aggravating factors. In this case a number of aggravating circumstances are present. A sixteen-year-old employee taken advantage of by an employer. The rape was perpetrated by a forty-year-old man. The circumstances as reflected above reflect that the applicant was in a position of authority over the complainant as his employee. The issue of the discharge was a neutral issue. It does not seem to have had any impact on the sentence. In the circumstances I find no prospects of success on the conviction and sentence passed, which sentence is consistent with statute and case law. See S v Nhumwa SC 40-88 Dhuwane Bhebhe v The State HB 251/18 Oncemore Mutyoramwendo v The State HH 715/21 In the circumstances I find the application without merit and order as follows: The application for bail pending appeal be and is hereby dismissed. WAMAMBO J:,………………………………………… G. Sithole Law Chambers — applicant's legal practitioners National Prosecuting Authority — respondent's legal practitioners 4 HH 03-25 HCH 4537/25 4 HH 03-25 HCH 4537/25 TERRENCE MUKONYORA versus THE STATE HIGH COURT OF ZIMBABWE WAMAMBO J HARARE; 2 January 2026 Bail pending appeal A. Muziwi for the applicant C. Mchemwa for the respondent WAMAMBO J — This matter concerns an application for bail pending appeal. The applicant was found guilty of rape as defined in section 65(1) of the Criminal Codification and Reform Act Chapter 9:23. He was sentenced to 15 years imprisonment. Dissatisfied with both the conviction and sentence applicant filed a notice and grounds of appeal. The grounds of appeal read as follows: — “AD CONVICTION (1) The Court a quo committed an irregularity and misdirected itself in finding that the appellant raped the complainant contrary to the proved facts of consensual sexual intercourse. (2) The court a quo grossly misdirected itself in finding that the complainant voluntarily made the report when there was evidence that appellant’s intention to terminate their relationship was the cause for the report. (3) The court a quo grossly erred in convicting the accused person of rape when the complaint was not made at the earliest opportunity and to the first person to whom she could reasonably have been expected to make it. AD SENTENCE (1) The court a quo grossly erred and misdirected itself by imposing a sentence of 15 years imprisonment which sentence is so excessive as to induce a sense of shock and in circumstances where there were no aggravating circumstances to support same.” The applicant and the victim were employer and employee. On a date when the applicant’s wife was away the rape was committed according to the complainant. Phone calls were made by the victim to her uncle culminating in a report to the police. Some interventions were made by and/or on behalf of the applicant for charges to be withdrawn to no avail. The Learned Magistrate found the complainant credible and also found unfavourably on the applicant’s version of events. I am alive to the fact that the applicant’s position differs from that of an applicant who faces trial but has not yet been convicted. In this case applicant has already been convicted and sentenced by a competent Court. The reasons and analysis of the evidence forms part of the record of proceedings. The application’s submissions unfolded as follows: The applicant and complainant were in a relationship. The complainant contradicted herself. The medical report is not definite on the commission of rape. Basically, besides adding some flesh to the submissions applicant sought to justify the grounds of appeal as referred earlier to. Ultimately applicant is of the view that he has good prospects of success on appeal. Applicant avers that he is of fixed abode, and owns the property where the offence is alleged to have taken place. He further avers that he is employed at Zimplats, he is married and has dependants. He says that he has no passport or assets and connections outside the Zimbabwean border. He submits that he will not abscond. The applicant argues that his appeal on sentence is not doomed to failure. Among other issues he points out that the Magistrate took what he terms “an emotional and sensational approach to sentencing.” He further argues that the rape was not committed in aggravating circumstances as per the medical report and victim impact statement. It is further averred by applicant that the Trial Court placed a wrong emphasis on the discharge observed on complainant. The State is opposed to the application. The State is supportive of the findings by the Magistrate and submitted that the totality of the evidence proved the guilt of the applicant. On sentence the State avers that the offence was committed against a young person aged sixteen years who was a maid at the applicant’s house and thus should have been protected by the applicant. The State is of the view that ultimately applicant deserves an effective prison term. “ In Tineyi Tavengwa HMA 28/19 I referred to a number of relevant cases at pages 4—5 as follows:— In Tatenda Kamudyariwa v The State HH 97/19, Ndewere J at page 2 summarised the factors to be considered in a bail pending appeal as follows: — “As correctly pointed out by the applicant, the principles governing bail pending appeal were enumerated in State v Musasa SC 45/02 and State v Labuschagne 2003 (1) ZLR 644 (S) as follows:— the likelihood of abscondment (ii) the prospects of success on appeal (iii) the right of an individual to liberty (iv) the potential length of the delay before the appeal is heard. In Tigere Majani and Another v The State HH 642/17, Chitapi J said at page 2:— ‘The convict’s rights to bail after conviction does not arise as a fundamental right as guaranteed in Chapter 4 of the Constitution’’. The power of the Court to admit a convicted person to bail pending appeal as in this case do not derive from the Constitution but from the Criminal Procedure and Evidence Act (Chapter 9:07). Section 123 of the said enactment provides for the limited instances wherein the convicted and sentenced person may be admitted to bail by the magistrate or a judge of this Court or the Supreme Court as provided for therein.” In Dennis Scholz v The State HH 234/17, Tsanga J at page 2 said: When convicted and sentenced the presumption of innocence no longer prevails particularly so in cases of appeal against sentence. Where there are no positive grounds for granting bail, it is generally refused. The onus falls on the accused to show that he should be granted bail. Discharging such onus depends on two main factors:— (a) likelihood of appellant absconding which will depend on length of sentence passed and (b) the prospects of success on appeal see S v Dzawo 1988 (1) ZLR 536 (S). It is also a principle that the greater must be the prospects of success before bail should be granted. Other factors to be considered are the right to individual liberty and the likely delay before an appeal is heard.” I will proceed to consider the application before me with the principles as enunciated above in mind. As held by Chitapi J in Tigere Majani and Another v The State (supra) a convicted person’s rights after conviction do not derive from the Constitution but from Section 123 of the Criminal Procedure and Evidence Act Chapter 9:07. It is now well known by those who deal with appeals that they are now expeditiously disposed of. A very short time elapses between the noting and hearing of an appeal, everything else being equal. I thus take judicial notice of the fact that the length of delay in hearing an appeal is minimal, to say the least. I move to consider the issue of prospects of success. In most cases the prospects of success are interlinked with the risk of abscondment and the right to liberty. Invariably where the prospects of success are dim that generally will affect the chances of abscondment. Having little or no prospects of success may indeed in some cases motivate a convicted person to decide to abscond to avoid incarceration. Each case of course, depends on its own full circumstances. In considering the prospects of success, I will consider the grounds of appeal as raised. On the grounds of appeal as raised does the applicant have prospects of success on appeal is the question I will closely consider. The first ground of appeal speaks to consensual sexual intercourse. The ground is either couched in terms too broad or is unsure of the actual stance of the applicant — Is the ground generally motivating that the two had consensual sexual intercourse as a matter of course? Or is it saying on the date as alleged by the State there was consensual sexual intercourse? The latter would be the more relevant option, considering that the applicant is effectively complaining about being found guilty of rape on a particular day. If so, then the ground has no merit. I say so because applicant in his defense outline or evidence never alleged that on the date as averred by the State as the date of rape, there was consensual sexual intercourse. The applicant in his evidence feebly referred to a single occasion prior to the charge when he had consensual sexual intercourse with complainant. The Learned Magistrate considered the full circumstances and found that rape was committed. In the circumstances I am of the considered view that this ground is without merit for the purposes of the instant matter. I find dim prospects of success on the first ground. On the second ground of appeal, it is averred that the rape report was not only voluntarily made but it was made in circumstances where complainant was unhappy about the applicant's intention to terminate their relationship. A consideration of the cross examination of the complainant reflects only one question in relation to the allegation of complainant making a report of rape because of applicant's intention to end their affair. Surely if that was the basis for impugning applicant's testimony, more flesh would have been added to the single question. Issues of when the affair started, what was the occasion when applicant wanted to end the affair, how many times before the offence had the two been intimate are but some of the questions I would have expected to be asked of the complainant. Instead of asking some or more of the above questions defence counsel was satisfied with the answer given. There was no further querying or prompting on the answer, which indeed appears to have been a fair and consistent answer. I find in the circumstances that the allegation is not supported by the evidence or the probabilities in the circumstances of this case. I find that on ground two there are dim prospects of success on appeal. I move to ground three. I noted here that the report of rape was made on the same day. An initial attempt to report to an uncle was unsuccessful as he didn't respond to his phone as he was asleep. The uncle and complainant gave consistent testimony on this, and they did not materially differ on any other issue. Indeed according to both complainant and her uncle, when the uncle received the audio message he advised complainant to make a report to the police, which she did. A report to the applicant's wife could only prejudice complainant due to the fact that the wife is reasonably expected to support her husband. Such was to happen if one considers the latter overtures made to complainant to withdraw charges against applicant. I find that the 3rd ground of appeal does not reflect prospects of success on appeal. On sentence the ground is couched in broad terms however it speaks to an excessive sentence and that no aggravating circumstances exist in this case. I do not agree. This is a case of the rape of a sixteen-year-old employee by her employer, a man old enough to be her father. By virtue of her employment he was indeed the de facto father expected to defend and protect the young employee. There was trust involved. The young complainant left her door open, whilst she rested only to be rudely awakened by applicant intent on raping her whilst she was held by the throat. Planning could have been involved, complainant's evidence which evidence in totality reads well is that she was used to resting with her door open. No evidence was given of prior attempts to rape her by applicant. On the fateful day however applicant's wife was not present. Despite this complainant trusted that no unwelcome moves would be made by applicant. The complainant was a tender sixteen years old while applicant was at forty years old at the time of the commission of the offence. The age gap is quite substantial. Section 65 of the Criminal Law (Codification and Reform Act) Chapter 9:23 provides for a sentence of life imprisonment or a definite period of imprisonment of not less than fifteen years where there are aggravating factors. In this case a number of aggravating circumstances are present. A sixteen-year-old employee taken advantage of by an employer. The rape was perpetrated by a forty-year-old man. The circumstances as reflected above reflect that the applicant was in a position of authority over the complainant as his employee. The issue of the discharge was a neutral issue. It does not seem to have had any impact on the sentence. In the circumstances I find no prospects of success on the conviction and sentence passed, which sentence is consistent with statute and case law. See S v Nhumwa SC 40-88 Dhuwane Bhebhe v The State HB 251/18 Oncemore Mutyoramwendo v The State HH 715/21 In the circumstances I find the application without merit and order as follows: The application for bail pending appeal be and is hereby dismissed. WAMAMBO J:,………………………………………… G. Sithole Law Chambers — applicant's legal practitioners National Prosecuting Authority — respondent's legal practitioners