High Court overturns ruling allowing Magaya rape accusers to testify in Victim Friendly Court

By Staff Reporter
The High Court has overturned a magistrate’s decision allowing three women accusing PHD Ministries founder Walter Magaya of rape to testify in a Victim Friendly Court, ruling that the correct legal procedure was not followed when they were classified as vulnerable witnesses.

Justice Tawanda Chitapi set aside Harare regional magistrate Ester Chivasa’s February 16 ruling and sent the matter back to her court, where prosecutors can make a fresh application for the women to receive special protection while testifying.
Magaya faces three counts of rape involving women who were congregants at his church. He denies the allegations.

The State alleges the first complainant, then aged 24, was raped at Villa 13 at Yadah Hotel in Waterfalls, Harare, in July 2020.

Two other complainants, aged 22 and 21, were allegedly raped in the hotel’s Presidential Suite in July and December 2023 respectively.

Magaya challenged Victim Friendly Court

When the trial was due to begin on February 16, Magaya’s lawyers objected to proceedings being conducted in the Victim Friendly Court, which provides special arrangements for witnesses considered vulnerable.

Prosecutor Clemence Chimbari subsequently applied under section 319B of the Criminal Procedure and Evidence Act (CPEA) for the complainants to be treated as vulnerable witnesses and for their evidence to be heard in camera.


He told the magistrate the women had experienced significant mental and emotional difficulties and that some had expressed concerns about being in direct contact with Magaya.

The prosecution also argued that their previous relationship with Magaya as congregants, coupled with the presence of church members following the proceedings, could place additional pressure on them while giving evidence.

Magaya’s lawyers countered that prosecutors had presented no medical or psychological evidence establishing vulnerability.

They also argued that preventing Magaya from directly facing his accusers would infringe his right to a fair trial and urged Chivasa to personally interview the women before reaching a decision.

Magistrate: Rape complainants are vulnerable

Chivasa granted the prosecution’s application, reasoning that vulnerability did not have to be established through medical evidence.

She said a vulnerable witness was someone requiring special protection because giving evidence in an ordinary courtroom could cause serious distress or trauma.

The magistrate went further, however, stating that “in rape matter[s] all witnesses are vulnerable” and should not be forced to testify in open court.

It was that reasoning which attracted criticism from the High Court.

In his July 30 judgment, Justice Chitapi said:

“I must however note that it is an overstatement to say all witnesses in rape matters are vulnerable.”

High Court finds legal test was not properly applied

Justice Chitapi stressed that the central issue was not whether the three complainants should ultimately receive protection, but whether the magistrate had followed the process prescribed by law before reaching that conclusion.

Section 319C(1) of the CPEA requires courts to consider several factors when determining vulnerability, including a witness’s age, mental and physical condition, cultural background, relationship with the accused and the interests of justice.

Justice Chitapi held that these factors must be considered together rather than selectively.

“The court’s role in such applications is therefore not a passive one,” he said. “The court must enquire into the listed factors… all must be traversed and findings of fact made.”

He found Chivasa’s ruling had failed to properly address the statutory requirements.

No ‘secret trial’

The High Court nevertheless rejected Magaya’s argument that allowing the women to testify under special arrangements would effectively create a secret trial.

Justice Chitapi noted that Magaya would remain present, retain legal representation and have the opportunity to cross-examine the complainants.

The judge also rejected an argument that Chivasa’s procedural failure rendered everything she had done legally void.

“The applicant misses the point,” Chitapi said, explaining that the magistrate had not done something prohibited by law but had instead failed to do something the law required.

Magaya also failed in his attempt to have the case transferred to another magistrate, with Justice Chitapi finding no justification had been presented for Chivasa’s recusal.

The February 16 ruling was consequently set aside and the matter returned to the regional court, where either side can raise the vulnerable-witness issue again under the correct statutory procedure.

No order was made as to costs.

Advocate Thabani Mpofu appeared for Magaya alongside Admire Rubaya and Everson Chatambudza, while Chimbari represented the Prosecutor-General together with Tendayi Shonhayi, Angeline Munyirwa, Kudakwashe Chigwedere and Foelane Chipo Muronda.