First Gasura v The State

First Gasura (the applicant) was convicted by the Regional Court sitting at Gokwe on 16 September 2016 for raping his two young daughters. He was sentenced to 17 years imprisonment on each count (34 years total), with 4 years suspended for 5 years on conditions of good behaviour. On 10 August 2018, Moyo J sitting at the High Court in Bulawayo dismissed his application for leave to appeal the sentence out of time under HCA (COND) 65/18. On 16 September 2020, Gasura filed a similar application at the High Court in Harare (before a different judge), this time seeking leave to appeal both conviction and sentence out of time and to prosecute the appeal in person. Chikowero J dismissed the application regarding conviction and struck off the application regarding sentence on 7 December 2020 under CON 342/20, finding the court was functus officio regarding the sentence appeal. On 29 November 2021, Gasura requested written reasons, which were provided under HH 699-21. On 17 August 2022, Gasura filed yet another application (CON 207/22) seeking the same relief.

• Whether the High Court could entertain a third application seeking the same relief after previous applications had been dismissed
• Whether the applicant's conduct constituted an abuse of the court process through judge shopping
• Whether the court was functus officio regarding matters already determined

The application for leave to appeal the conviction and sentence under CRB GKR 24/16 out of time and to prosecute such intended appeal in person was struck off the roll. The Registrar of the High Court was directed to furnish the Officer-In-Charge of Chikurubi Maximum Security Prison with a copy of the judgment.

Where a court has already pronounced itself on an application for leave to appeal out of time and dismissed such application, the court is functus officio and cannot entertain subsequent applications seeking the same relief. A litigant cannot circumvent an unfavorable decision by filing successive applications on the same matter in the hope of having the matter heard by a different judicial officer. Such conduct constitutes judge shopping and an abuse of the court process, warranting the striking off of the subsequent application from the roll.

Chikowero J observed that "this case demonstrates the need for contingent measures to be taken to curtail the abuse of the criminal justice system by litigants pending court operations becoming fully paperless." This comment suggests that the judge believed technological improvements in court administration could help prevent such abuses in the future. The judge also expressed hope that involving prison administration offices could assist in forestalling the filing of further improper applications by incarcerated litigants, suggesting an administrative solution to complement legal remedies for dealing with vexatious litigants.

This case is significant in Zimbabwean criminal procedure law as it addresses the problem of abuse of court process through repetitive applications seeking the same relief after previous applications have been dismissed. It demonstrates judicial recognition of "judge shopping" as an improper litigation tactic and establishes the principle that courts will not entertain successive applications on matters already determined. The case also illustrates judicial innovation in attempting to prevent further abuse by involving prison authorities to monitor and potentially curtail frivolous applications from incarcerated litigants. It highlights the challenges courts face in maintaining the integrity of the justice system while court operations transition to paperless systems.