Tendai Chihera v The State

The applicant, Tendai Chihera, was convicted of armed robbery in December 2003 and sentenced to 30 years imprisonment (effective 20 years) under case no. CRB R926-7/03. He was convicted alongside four co-accused. One co-accused, Gladmore Mupangi, was granted bail and died a month later; another, Bob Dhiriza, was released on medical grounds and also died shortly thereafter. The applicant sought to appeal his conviction but the record of proceedings could not be located despite extensive searches by the Magistrate's Court, the High Court, and National Archives. The matter was referred to the High Court for appeal in March 2004 (CA 42/04), and the record was received but subsequently lost - only an empty record cover remained. The applicant filed a bail application on 26 June 2019, essentially seeking assistance to obtain his trial record. After multiple postponements and court-ordered investigations from June to November 2019, affidavits confirmed the record was irretrievably lost and could not be reconstructed as key participants (including magistrates and prosecutors) had died or left service, and the presiding magistrate's name was not even recorded. By the time of the application, the applicant had served approximately 16 years in prison.

• What remedy is available to a convicted person when the record of proceedings has been irretrievably lost through no fault of their own?
• Whether the court can grant relief in the absence of a record to appeal or review?
• What is the constitutional right of an accused to obtain a copy of court proceedings under section 70(4) of the Constitution?
• Whether an automatic acquittal should follow when court records are lost?
• What are the interests of justice when balancing an appellant's right to appeal against the loss of trial records by the state?
• Whether reconstruction of the record is feasible and what alternatives exist when it is not?

The court ordered: (i) The proceedings against the applicant in State v Tendai Chihera (CRB R 926-7/03) are set aside; (ii) A trial de novo may be conducted at the discretion of the Prosecutor General; (iii) If a fresh trial results in conviction, the trial court shall take into account the period already spent in prison as part of sentence already served; (iv) The judgment disposes of case B 1058/19 and closes cases R 926-7/03 and CA 42/04.

Where court records have been irretrievably lost through no fault of a convicted person and cannot be reconstructed, thereby frustrating the constitutional right to appeal, the court has inherent power under section 176 of the Constitution to fashion an appropriate remedy based on the interests of justice in the particular circumstances. The state bears responsibility for maintaining court records and a convicted person's constitutional rights under section 70(4) to obtain a copy of proceedings and to pursue an appeal should not be defeated by the state's failure to safeguard those records. There is no automatic consequence (such as acquittal or continued imprisonment) - the court must balance all relevant factors including the nature of the offence, time served, feasibility of reconstruction, and fairness to both the accused and society in determining the appropriate order.

The court observed that while unrepresented accused persons may not always use the technically correct procedure (such as filing a bail application when the real issue is lost records), courts have a duty to assist unrepresented litigants by informing them of their rights and ensuring substantive justice is achieved. The court noted its concern about the prolonged delay from June to November 2019 in complying with court orders to investigate the missing record, stating this put the administration of justice into disrepute. Chitapi J expressed some question about the reasonableness of the applicant's failure to apply earlier for quashing of his conviction due to non-availability of the record, though he acknowledged the system also failed to manage the record and appeal properly. The court emphasized that the Constitution places a duty on all persons, including courts, to protect, promote and fulfill constitutional rights.

This is a landmark Zimbabwean judgment establishing important principles regarding lost court records and constitutional rights to appeal. It affirms that: (1) the constitutional right to a copy of court proceedings under section 70(4) is substantive and must be protected; (2) the state bears responsibility for safeguarding court records and an accused's appeal rights cannot be frustrated by institutional failures; (3) courts have inherent power to fashion appropriate remedies when records are irretrievably lost; (4) there is no automatic acquittal or set precedent - each case must be determined on its own facts balancing the interests of justice; (5) prolonged incarceration without ability to exercise appeal rights due to state failure violates fair trial guarantees. The judgment demonstrates judicial innovation in protecting constitutional rights while balancing competing interests of justice, public safety, and administrative realities. It provides important guidance on remedies available when the criminal justice system fails to maintain proper records.