Washington Kangarade v Dennis Mangosi N.O and Others

The Applicant was convicted in 2013 of contravening the Parks and Wildlife Act (Chapter 20:14) and sentenced to nine years imprisonment. He lodged an appeal (CA364/13) with the High Court and was granted bail pending appeal. In 2024, the Applicant was re-arrested following a warrant of arrest issued by the 1st Respondent based on allegations that the Applicant failed to pay costs for preparation of the appeal record, resulting in the appeal being dismissed. The Applicant appeared before the 1st Respondent seeking cancellation of the warrant of arrest, but this was dismissed. The Applicant then approached the High Court seeking condonation for late filing of review and review of the decision to issue and confirm the warrant of arrest. Crucially, despite the court directing the 3rd and 4th Respondents (Registrar and Clerk of Court) on three occasions to produce the record of proceedings, no record could be located or produced. The representatives confirmed they were not in possession of the record. The Applicant amended his relief to seek quashing of the proceedings and a trial de novo.

• Whether condonation should be granted for late filing of the review application
• Whether the decision to issue and confirm the warrant of arrest should be reviewed and set aside
• What appropriate remedy should be granted where the record of proceedings has been lost and cannot be reconstructed or located
• Whether proceedings should be quashed in circumstances where the record is irretrievably lost
• Whether the loss of the record violates the applicant's right to a fair trial and right to appeal
• Whether a trial de novo should be ordered and under what conditions

A. The application for condonation for late filing of a review was granted. B. The application for review was granted. C. The decision of the first respondent to issue and confirm the warrant of arrest under CRB1147/13 was set aside. D. The applicant was ordered to be released from prison forthwith. E. The proceedings against the applicant in State v Washington Kangarade (CRB1147/13) were quashed. F. A trial de novo may be conducted at the discretion of the Prosecutor General. G. If a trial de novo is instituted and the applicant is convicted, the trial court shall take into account the period the applicant has already spent in prison as part of the sentence already served. No order as to costs.

Where the record of criminal proceedings has been irretrievably lost through no fault of the accused and cannot be reconstructed, thereby frustrating the accused's right to appeal, the court may quash the conviction and sentence and order the accused's release. The State bears the responsibility for maintaining proper court records, and an accused person's constitutional right to a fair trial and right to appeal should not be defeated by the State's failure to preserve records. The appropriate remedy in cases of lost records depends on the specific circumstances of each case and must serve the interests of justice. Where a conviction is quashed due to lost records, the Prosecutor General retains discretion to institute a trial de novo, and if the accused is reconvicted, any period already served in prison must be taken into account as part of the sentence already served.

The court observed that there is no "one size fits all" approach or set template for dealing with cases where records are lost - each case must be determined on its own circumstances. DEME J recommended that there should be an appropriate amendment of the rules to provide uniform guidance for dealing with situations where records are lost, noting that "this is an area where the relevant authorities must consider being governed by the Rules in order to have a uniform way of dealing with the present situation." The court also questioned the reasonableness of the applicant's failure to apply earlier for quashing of the conviction and sentence due to non-availability of the record, though this did not affect the ultimate outcome given the system's unfairness to the applicant.

This case is significant in Zimbabwean criminal procedure law as it addresses the appropriate remedy where the State has lost the record of proceedings and it cannot be reconstructed, thereby frustrating an accused person's right to appeal. The judgment reinforces the constitutional right to a fair trial and the State's obligation to maintain proper court records. It establishes that where the loss of records is attributable to the State's failure and makes an appeal impossible, the proceedings may be quashed and the convicted person released, with the possibility of a trial de novo at the prosecution's discretion. The case emphasizes that remedies in such situations are fact-specific and must serve the interests of justice. The court's recommendation for rule amendments highlights a systemic gap in procedural guidance for handling lost records.