WALTER MAGAYA

versus

THE STATE

HIGH COURT OF ZIMBABWE
TSANGA J
HARARE, 6 & 13 June 2018

Assessors:        1. Mr Chivanda
                        2. Mr Mtambira

Application for leave to appeal

R Goba, F Muronda & J Uladi, for the State
T Mpofu, A Rubaya, E Chatambudza & O Marwa, for the applicant

            TSANGA J: An application has been made for leave to appeal to the Supreme Court. The backdrop to the application is this. The criminal trial in this matter commenced on the 3^rd of April. The charge was put to the accused and the accused pleaded not guilty. However, he did not present his defence outline. He insisted as he had indeed done at the commencement of the trial that he had an application to make which hinged on why the continuation of the trial would be a violation of his constitutional rights. He asserted that the rape complainant had withdrawn her complaint and that as such the State was acting with mala-fides in choosing to continue with the trial. The state was vehemently opposed to the application as unprocedural. It was common cause that an application on the constitutional issue had been placed before a full Constitutional Court which struck the matter off the roll in September 2017. Counsel for applicant argued at the trial that placing the record of the Constitutional matter before this court would bolster his case that the application was now properly before the court. I asked for written submissions and both parties submitted these.

            The order sought by the applicant is essential to reproduce. It is an order that:

1. In light of the confessions made by the complainant on oath which the state has no basis to treat as false, the decision to continue with applicant’s prosecution under the circumstances is unlawful, unconstitutional and consequently void.