BAIL
APPEAL (In Chambers)
PATEL
JA: The
appellant is the pastor of his own church based in Marlborough,
Harare. He was convicted by the Harare Magistrates Court on 3
February 2014 of four counts of rape and one count of contravening
s26 of the Censorship and Entertainment Control Act [Cap
10:04]
i.e.
possession of pornographic material.
He
was sentenced to a term of 50 years imprisonment with 10 years
suspended on condition of good behaviour. He has since appealed to
the High Court against his conviction and sentence. That appeal is
pending.
The
appellant also applied to the High Court as a court of first instance
for bail pending appeal. His application was dismissed. He now
appeals against that decision in terms of s121 of the Criminal
Procedure and Evidence Act [Cap
9:07].
The
court a
quo
found that the evidence of the complainants in relation to three of
the four counts of rape was credible in material respects. The court
also found that the complainants' reports of the alleged rapes were
voluntarily made and that, although the delays in making those
reports were lengthy, the reasons given for those delays were
plausible. Moreover, the sentences imposed by the magistrate in
respect of the rape counts were appropriate.
As
regards the censorship offence, the court a
quo
found that the evidence adduced as to the possession of obscene
material was sound and that the appellant had no lawful excuse for
his possession of that material. However, the sentence imposed for
that offence was probably defective as the magistrate had advanced no
reasons for sentence on that count.
In
the event, the court a
quo
held that the appellant generally had no prospects of success on
appeal and dismissed his application for bail. The court also held
that there had been no violation of his constitutional rights to
liberty and a fair trial.
The
principal ground of appeal herein is that the Magistrates Court did
not properly analyse the evidence before it and that, therefore, the
case on appeal was arguable. Moreover, this cursory analysis of the
evidence violated the appellant's constitutional rights.
Additionally, the High Court erred in disregarding the effect of the
magistrate's mistaken references to cases dealing with mentally
defective victims of rape. The High Court also erred in finding
plausible explanations for the inordinate delays in reporting the
alleged offences. Again, the reports were made in circumstances
showing a likelihood of their having been made in response to
leading, inducing or intimidating questions.
Having
regard to all of the foregoing, the central issue for determination
in this matter is whether the court a
quo
erred or misdirected itself in finding that there were no prospects
of success on appeal from the decision of the Magistrates Court.
The
test to be applied in this regard is relatively uncomplicated: Is the
appeal “reasonably arguable and not manifestly doomed to failure”?
See State
v Hudson
1996 (1) SACR 431 (W).
The
main point taken by Mr Magwaliba
for the appellant is that the learned magistrate did not evaluate the
evidence and assess the credibility of witnesses on the rape charges
(counts 3, 7, 8 and 9). He thereby erred in accepting the evidence of
a single witness without adequate analysis in respect of each count.
Count
3
relates to Precious Kapfumvuti (Precious).
Her
evidence was that she was raped on several occasions during the
period stretching from 2007 to 2013, having succumbed to the
appellant's exercise of authority rather than physical force.
It
is submitted for the appellant that her assertion of having been
subjected to indoctrination cannot be sustained. She understood the
nature of the sexual acts that she engaged in and the appellant's
influence could not have deprived her of the capacity to give her
informed consent. Moreover, her explanation for having reported the
alleged rapes at a late stage is totally unreasonable. She could have
reported the matter to various people over the years and after she
left the appellant's premises in 2013. It is further submitted that
her misrepresentation of certain biblical passages that she relied
upon while giving evidence in court rendered her veracity
questionable.
In
short, she willingly subjected herself sexually to the appellant as
an integral part of worshipping him and then later changed her
position after talking to others.
Mr
Mavuto
for the respondent submits that the appellant stood in the position
of being a guardian over Precious. She received counselling and
religious teachings from him, including the notion that a master
could do as he willed with his servant. The subjective effect was
that she believed what she was told by the appellant about his
authority and that differences between them should not be taken to
court for fear of her being placed in the hands of Satan. It is
further pointed out that she did report her first rape to a fellow
congregant but no assistance was forthcoming. Thereafter, she was
always accompanied or guarded either by the appellant's principal
wife or by his brothers. She therefore remained silent out of fear
and eventually escaped after realising that what the appellant was
doing to her was wrong.
Count
7
pertains to Winnie Sakahuhwa (Winnie).
Mr
Magwaliba
submits that she was aware of the appellant's reputation before she
went to stay with him in December 2011. Nevertheless, she allowed
herself to be sexually intimate with him. In effect, she consented to
sexual intercourse because of his authority and understood sex with
him as being necessary to create a bond between them. Moreover, her
account of one of their sexual encounters is physically improbable in
terms of their respective bodily positions. She admits to having
denied any sexual assault when queried by at least three other people
and did not even confide in her mother after police investigations
had commenced. Additionally, her mother's evidence does not
corroborate that of Winnie and the former could not explain why the
latter did not confide in her. Again, Winnie did not make any report
to the representatives of Child Line who attended her school for
counselling.
For
the State, it is submitted that Winnie was warned by the appellant
not to make any report because she would then be placed in the hands
of Satan. She genuinely believed his teachings. She did not tell her
mother anything about her sexual assaults because her mother suffered
from hypertension and she did not want her to be over-stressed.
Furthermore, she did not report her predicament to anyone else
because the appellant claimed that the police belonged to him. She
only reported the matter to the police after learning of his arrest
and realising that he was not invincible.
Counts
8 and 9
relate to Hazvinei Samanyanga (Hazvinei).
As
is correctly pointed out by Mr Magwaliba,
the court a
quo
entertained considerable doubt as to the propriety of the appellant's
conviction on count 9.
The
learned judge found that it was possible that she may have been raped
on the first occasion (count 8) as her evidence was credible on that
score. However, she appears to have acquiesced to sexual intercourse
on the subsequent occasions (count 9), having voluntarily returned to
the appellant's residence during weekends.
Moreover,
she spent several months in South Africa before reporting the matter
to the police when they contacted her in connection with Precious.
These
are matters that were not adequately interrogated by the Magistrates
Court.
Mr
Mavuto
submits that Hazvinei's evidence on count 9 shows that she was
forcibly raped on the first occasion and that the appellant was
correctly convicted on that count. He concedes, however, that her
conduct in respect of count 9 was inconsistent with the absence of
consent, particularly as she continually returned to the appellant's
residence of her own accord.
Count
10
pertains to the appellant's unlawful possession of two obscene
DVDs.
There
is no doubt that the appellant was properly convicted on this count.
At
the hearing of this appeal, Mr Magwaliba
quite correctly abandoned the technical point raised in his heads of
argument as to the propriety of inspecting the material in question
after the appellant was arrested.
As
regards the concurrent sentence of 4 months imprisonment imposed by
the learned magistrate, the court a
quo
highlighted the obvious misdirection of the magistrate in failing to
provide any reasons for sentence.
In
any event, as was accepted by Mr Magwaliba,
this misdirection has been rendered academic and irrelevant by the
fact that the appellant has already served 4 months in prison
following his conviction on 31 January 2014.
As
regards the credibility of witnesses, the general rule is that an
appellate court should ordinarily be loth to disturb findings which
depend on credibility.
However,
as was observed in Santam
BPK v Biddulph
(2004) 2 All SA 23 (SCA), a court of appeal will interfere where such
findings are plainly wrong.
Thus,
the advantages which a trial court enjoys should not be
over-emphasised. Moreover, findings of credibility must be considered
in the light of proven facts and probabilities.
In
the instant case, the learned magistrate convicted the appellant on
four out of the total nine counts of rape. He rejected the testimony
of three complainants and acquitted the appellant in respect of the
five counts pertaining to them.
With
respect to the three complainants presently under consideration, his
assessment of their credibility is not as detailed as might have been
expected.
Nevertheless,
I am not persuaded that any of his critical findings of credibility
can be said to be manifestly wrong in light of the proven facts and
probabilities of this case.
I
am inclined to agree with the State that he correctly analysed the
subjective effect of the appellant's behaviour and teachings on the
complainants.
Admittedly,
in so doing, he erroneously cited case authorities revolving around
victims of rape who are mentally disordered or incapacitated and
their capacity to consent to overtures and acts of sexual
intercourse. However, as was correctly noted by the court a
quo,
the magistrate's reference to these cases was designed to show that
the complainants were not freely consenting individuals.
His
misquotation did not go to the root of the convictions and does not,
in my view, constitute a fatal misdirection.
In
the court a
quo,
the learned judge elaborated “the subjective nature of religious
dogma” in more cogent terms.
To
paraphrase and summarise his findings, the complainants were
subjected to frequent indoctrination in the notions of total
separation and submission to authority. They were not allowed to
fraternise with their relatives and were conditioned to believe that
matters of church should not be discussed with outsiders. The
appellant displayed a pattern of predatory behaviour, characterised
by rampant sexual perversion, manipulating and luring the
complainants to accept and endure his deceptively benign patriarchal
authority.
As
was eloquently observed by Justice Douglas in United
States v Ballard
322 US 78 (1944) – quoted by both of the courts below – religious
doctrines and beliefs cannot be subjected to the rigours of legal
proof.
I
would take this sentiment further to opine, in the circumstances
presented by this case, that the quasi-mystical force of religious
dogma might overwhelm its conscripts and devotees to the point where
it operates to vitiate and negate any meaningful consent to sexual
abuse and exploitation by their spiritual masters.
Taking
a broad conspectus of the facts and probabilities in
casu,
it appears to me that the complainants, having been enmeshed within
the overpowering cocoon woven by the appellant, unwittingly succumbed
to his sexual advances and predations. Thereafter, constrained by
fear and misconception, they remained taciturn for several years and
only reported their respective ordeals after appreciating the full
nature of their sexual bondage.
To
sum up, it must be accepted that there are certain deficiencies in
the State case.
Nevertheless,
I take the view that none of the grounds of appeal raised in this
case is entirely sustainable.
Apart
from the conviction on the second charge pertaining to Hazvinei
(count 9) and the sentence imposed in respect of the possession of
obscene materials (count 10), I am satisfied that the appellant has
no prospects of success on appeal and that his appeal is doomed to
failure.
In
that event, he will remain subject to a prison term totalling 40
years, with a period to be determined suspended on condition of good
behaviour.
The
above conclusion does not necessarily end the matter.
An
issue that was raised in the court a
quo
but not addressed in its judgment is the possibility of the appellant
absconding in the event of being granted bail. I think it appropriate
to deal with this aspect for the sake of completeness.
Mr
Magwaliba
submits that the appellant is unlikely to abscond because he has huge
family responsibilities. Moreover, he is prepared to offer his main
residence as security for bail.
Mr
Mavuto
counters that the appellant will be induced to abscond by the
presence of another charge of rape that is pending against him and
because of the 40 years sentence imposed in respect of counts 3, 7, 8
and 10.
I
note that the pending charge arises from the same period but was
deferred because the complainant in that matter had fallen pregnant.
In any event, the appellant has denied that charge.
As
was highlighted in Manyange
v The State
HH1-2003,
there is a clear distinction between the principles governing the
grant of bail pending trial and those relating to bail pending
appeal.
In
the former situation, the presumption of innocence, which resides
within the constitutionally guaranteed right to liberty, operates in
favour of granting bail unless there are positive reasons for
refusal.
In
the latter situation, on the other hand, the presumption of innocence
is inoperative because the accused is a convicted and sentenced
offender. The accused must go further than showing that he has
prospects of success on appeal. He must establish that there are
positive grounds for granting bail and that the grant will not
endanger the interests of justice.
In
this regard, the public perception is an integral factor to be taken
into account. Where the grant of bail would result in a public
outcry, the courts should be slow to grant bail in order to safeguard
the integrity of the justice delivery system. See Gardner
v The State
HH 60-2008.
The
possibility of public outrage is something that I am not in a
position to assess without any compelling evidence in that regard.
What
is more significant in
casu
is that the appellant has not proffered any positive grounds for
allowing him to proceed on bail.
The
existence of a huge familial entourage, comprising 11 wives and 32
children, is a condition of his own making and does not really
advance his claim to bail.
Moreover,
he has failed to satisfactorily demonstrate his prospects of success
on appeal.
Apart
from this, there is nothing else to commend his right to liberty.
In
my view, the prospect of a protracted prison term, coupled with his
fresh experience of post-trial incarceration, affords abundant
incentive for him to abscond.
In
all the circumstances, I am amply satisfied that the appellant is not
a good candidate for bail.
For
all of the foregoing reasons, the appeal must fail and it is
accordingly dismissed.
Nyikadzino,
Simango & Associates,
appellant's legal practitioners
Prosecutor-General's
Office,
respondent's legal practitioners
