Leeroy Tendai Musarurwa v The State

The applicant was convicted by a Magistrate at Chitungwiza Magistrate Court of contravening section 65 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (rape) and sentenced to 15 years imprisonment. He was unrepresented at trial. The complainant, an eleven-year-old relative, testified that the applicant, who was her uncle's son, dragged her to the bathroom and raped her after she went to collect fruit at the request of the applicant's wife. The applicant's wife became suspicious when she saw them emerging from the bathroom together. The complainant's mother was informed and assaulted her daughter for not reporting earlier. The applicant assaulted his wife in connection with the matter. The applicant's defence was that the charge was a fabrication arising from family bad blood, and that the complainant had previously been raped by her uncle who subsequently committed suicide. The applicant filed an application for condonation for late noting of appeal on 3 September 2024, approximately three months after his conviction on 24 May 2024. He attributed the delay to engaging legal practitioners through relatives, inspecting and transcribing the record due to alleged illegibility, and drafting grounds of appeal.

• Whether the applicant provided reasonable explanation for the delay in noting the appeal
• Whether the applicant demonstrated good prospects of success on appeal against conviction
• Whether the applicant demonstrated good prospects of success on appeal against sentence
• Whether condonation for late noting of appeal should be granted in the circumstances

Application for condonation for late noting of appeal against both conviction and sentence dismissed.

In applications for condonation for late noting of appeal, the court must exercise judicial discretion considering: (1) the degree of non-compliance with the Rules; (2) the reasonableness of the explanation for delay; (3) prospects of success on appeal; (4) the importance of the case; (5) the respondent's interest in finality; and (6) the convenience of the court and avoidance of delay in administration of justice. A delay is not excused merely because relatives engaged legal practitioners for an unrepresented accused, as a self-actor could note an appeal timeously and grounds could be amended later. Where an applicant's defence outline is not pursued in oral evidence and the complainant's testimony is credible and consistent, prospects of success on appeal are dim.

The court observed that the applicant's wife, having been assaulted by him and being suspicious of his movements with the complainant, would likely not cooperate with authorities to implicate the applicant. The court noted that the use of dolls when dealing with child witnesses is a sanctioned procedure and nothing untoward was observed in such use at trial. The court also commented that the prior rape allegation concerning the uncle was not put to the complainant in cross-examination. The court indicated that even if condonation were granted, the sentence of 15 years imprisonment for rape of an eleven-year-old relative appeared appropriate and consistent with precedent.

This case reinforces the principles applicable to applications for condonation for late noting of appeals in Zimbabwe, requiring a reasonable explanation for delay, good prospects of success, and consideration of fairness to both parties. It demonstrates the court's rigorous scrutiny of explanations for delay and its assessment of prospects of success based on the trial record. The case also illustrates the weight given to credible child witness testimony in sexual offence cases and the limited sympathy shown for delays attributed to engaging legal practitioners when a self-actor could have noted an appeal timeously.