Admire Mashiri v The State

The applicant was convicted by Rusape Regional Court on 20 April 2023 for rape and sentenced to 14 years imprisonment, with 2 years suspended on conditions of future good behaviour. The charges arose from an incident on 29 October 2022 at Stand 5 Ruponeso Village, Headlands, where the applicant allegedly had non-consensual sexual intercourse with the complainant. The applicant was a close friend of the complainant's brother. The complainant testified that she went for a haircut at applicant's barbour shop where applicant proposed love to her and she refused. Applicant then carried the complainant to a tobacco barn, a struggle ensued, and applicant forced her to the ground and had sexual intercourse with her without protection. Medical evidence showed the complainant's hymen was torn with fresh tears at 1, 3, 6 and 10 o'clock, and a small bruise on the perineum. The applicant's defence was that the sexual encounter was consensual. The applicant failed to timeously file a notice of appeal and subsequently made multiple applications for leave to appeal and condonation, all of which were unsuccessful or struck off for non-compliance.

• Whether there are reasonable prospects of success on appeal to justify granting leave to appeal
• Whether condonation for late filing should be granted where there are no prospects of success
• Whether the application for leave to appeal is properly before the court without a prior application for condonation
• Whether the trial court correctly assessed the issue of consent in the rape conviction

The application for leave to appeal to the Supreme Court was struck off the roll.

An applicant cannot apply for leave to appeal without first obtaining condonation for late filing of the notice of appeal. Where there are no prospects of success on appeal or even an arguable case, a court's granting of condonation for delayed notice would be misplaced and an improper exercise of judicial discretion. In rape cases where consent is the central issue, trial courts' findings on credibility of witnesses will be upheld on appeal where the trial court has given detailed reasons for its credibility assessments and there is supporting medical evidence consistent with the complainant's testimony.

The court observed that the applicant had made multiple applications for leave to appeal and could not attach a copy of the record of proceedings, leading to matters being struck off. The court noted that the applicant had attempted to file papers directly in the Supreme Court, which matter was also struck off, before returning to the High Court with another application. The court commented that the applicant appeared to be seeking either for the court to repeat its reasons already given or to revisit the application based on an alleged statement from the Supreme Court about "bright prospects of success" - though the court implicitly doubted this characterization given that the Supreme Court matter was struck off for procedural non-compliance rather than decided on merits.

This case is significant in Zimbabwean (not South African) criminal procedure as it reinforces the principle that leave to appeal will not be granted where there are no reasonable prospects of success on appeal. It emphasizes that courts will not grant procedural indulgences such as condonation for late filing where the substantive merits of the appeal are wholly lacking. The case also illustrates the proper procedure that must be followed in appellate matters, requiring condonation applications to precede applications for leave to appeal where there has been delay. It demonstrates the court's willingness to strike off repetitive and non-compliant applications that amount to an abuse of process.