Bail
Application
MUSAKWA
J:
In
this unusual case a man of cloth was arraigned on nine counts of
contravening s65 of the Criminal Law (Codification and Reform) Act
[Cap 9:23] and one count of contravening s29(1)(B) of the Censorship
and Entertainments Control Act [Cap 10:04].
In
respect of the latter charge I am not sure how the prosecutor missed
it as the correct citation is s26(1)(b).
The
applicant was convicted on five of the counts of rape as well as the
count under the Censorship and Entertainments Control Act.
In
respect of the rape charges, the applicant was sentenced to 15 years
imprisonment, counts 3 and 7 and ten years each in counts 8 and 9. Of
the total of 50 years imprisonment 10 years were suspended for five
years on condition of future good behaviour.
In
respect of the charge under the Censorship and Entertainments Control
Act he was sentenced to 4 months imprisonment which was ordered to
run concurrently with the sentence in count 3.
Having
noted appeal against conviction and sentence, the applicant sought
bail pending appeal.
His
application before the trial court was dismissed for want of
jurisdiction.
I
did commence by remarking that this is an unusual case. This is on
account of how the offences were committed and the fact that pastors
and priests are the least expected to commit such dastardly acts.
The
charges were framed as follows:
“Count
Three - Rape as defined in s65 of the Criminal Law (Codification and
Reform) Act [Cap 9:23]
In
that on the date unknown to the prosecutor but during the period
extending from the year 2007 to 30 September 2013 and at Number 6
Helena Close, Marlborough, Harare, Robert Martin Gumbura, a male
person, unlawfully had sexual intercourse with Precious Dadirai
Kapfumvuti, a female person, on divers occasions without her consent
knowing that she had not consented to it or realising that there was
a real risk or possibility that she might not have consented to it,
in contravention of the Act.
Count
Seven - Rape as defined in s65 of the Criminal Law (Codification and
Reform) Act [Cap 9:23]
In
that on the date unknown to the prosecutor but during the month (sic)
of January 2013 and February 2013 and at number 6 Helena Close,
Marlborough, Harare, Robert Martin Gumbura, a male person, unlawfully
had sexual intercourse with Precious Winnie Sakahuhwa, a female
person, three times without her consent knowing that she had not
consented to it or realising that there was a real risk or
possibility that she might not have consented to it, in contravention
of the Act.
Count
Eight - Rape as defined in s65 of the Criminal Law (Codification and
Reform) Act [Cap 9:23]
In
that on 14 May 2006 and at house number 64 Queen Elizabeth Road,
Greendale, Harare, Robert Martin Gumbura, a male person, unlawfully
had sexual intercourse with Hazvinei Ruvimbo Samanyanga, a female
person, several times without her consent knowing that she had not
consented to it or realising that there was a real risk or
possibility that she might not have consented to it, in contravention
of the Act.
Count
Nine - Rape as defined in s65 of the Criminal Law (Codification and
Reform) Act [Cap 9:23]
In
that during the period extending from December 2006 to 9 March 2013
and at house number 6 Helena Close, Marlborough, Harare, Robert
Martin Gumbura, a male person, unlawfully had sexual intercourse with
Hazvinei Ruvimbo Samayanga, a female person, on divers occasions
without her consent knowing that she had not consented to it or
realising that there was a real risk or possibility that she might
not have consented to it, in contravention of the Act.
Count
Ten - Contravening s29(1)(B) of the Censorship and Entertainment
Control Act [Cap 10:04]
In
that on 14 November 2013 and at house number 6 Helena Close,
Marlborough, Harare, Robert Martin Gumbura unlawfully or without
lawful excuse had in his possession two DVDs title Black Street
Hookers 37 and Dread Weku Mufombi Zimbabwe which contained videos of
naked women having sexual intercourse and are indecent, undesirable
and obscene or prohibited in contravention of the said Act.”
The
Facts
The
facts of the case can be summarised as follows.
The
applicant is a pastor and founder of a church, self-titled Robert
Martin Gumbura (RMG) Independent End Time Message. Two of the
complainants had either lost one or both of their parents. The third
complainant joined the applicant's church and moved in to stay with
devout “brothers and sisters” of the church, it being against
church doctrine to stay with heathens.
The
first two complainants were to move to the applicant's residence as
he had taken responsibility to take care of them.
In
due course the complainants would reside at several of the
applicant's residences in Harare, Kadoma or Chinhoyi.
In
due course the applicant would make amorous advances to the
complainants, either by hugging, kissing or proposing marriage.
In
respect of one complainant, she was first made to undergo HIV test.
In respect of the third complainant the applicant would peep at her
whilst she bathed. Photographs would be taken of her whilst she was
naked. Eventually all complainants were subjected to sexual
intercourse against their will.
In
some instances pornographic videos would be played prior to the
sexual acts.
In
some instances there was group sex where other women were involved.
Following
the applicant's arrest and in the course of investigations Police
Officers recovered digital video discs which contained sermons
delivered by the applicant. In some of the sermons the applicant
would curse congregants and remind them of those who had died
following his curses.
On
14 November 2013 detectives conducted a search at the applicant's
residence. In the process they recovered digital video discs
described in the charge sheet. These were in the applicant's
briefcase.
The
Defence
The
applicant's defence was that he is a victim of church politics. He
claimed that he was being blackmailed by his rivals and in particular
by Pastor Chitsinde of Spoken Word Ministries who used to worship
with him. The charges were contrived as the complainants now attend
Spoken Word Ministries.
The
applicant claimed that he broke away from Spoken Word Ministries in
1980 and has not been on talking terms with Pastor Chitsinde.
His
religious doctrine embraces polygamy whereas his rivals preach
monogamy. Thus his rivals want to gain congregants by casting
aspersions about him practising Satanism.
He
has eleven wives, hence his use of sexual enhancement drugs.
In
respect of Precious, he denied having an affair with her. He claimed
that the complainant used to reside at his Kadoma house as “sort of
a maid.” Precious was lured by Innocent Nehohwa whom the applicant
used to fellowship with. Innocent now fellowships with Chitsinde and
is being used to lure women to Chitsinde's church.
In
respect of Winnie, the applicant denied ever abusing her. He was in a
relationship with Winnie's sister, Linda for eight years. Linda
subsequently eloped to another man and they went to Canada. Linda now
attends Chitsinde's church and Chitsinde is using the complainant
to bring about his downfall.
On
Hazvinei, it was claimed that she was one of his wives whom he stayed
with for six years. He sponsored her course for Laboratory Technician
at Chitungwiza Hospital. Hazvinei later eloped to a church member.
Frustrated with her conduct the applicant preached in church that “he
had done with Hazvinei what every other man and woman could do.”
In
respect of the pornographic discs, it was claimed they were not
recovered from his briefcase but from a storeroom in the clerk's
office.
The
discs were awaiting destruction at the convention in December 2013 as
“most congregants would have repented and surrendered some to his
church”.
The
plea to the last charge was further elaborated upon.
The
discs were recovered from a storeroom adjacent to the applicant's
clerk's office. They were among other things which were waiting to
be burnt at the December convention. The discs belonged to
congregants who would have repented and as such the material was
stored in a storeroom by the congregants until a time when an annual
convention is conducted in December 2013.
The
Evidence
Tedious
as it may be, it is necessary to recount some aspects of the evidence
in some detail.
Precious
Kapfumvuti, an orphan used to attend Independent End Time Message
church. Her mother used to receive help from the applicant. Following
the mother's death in 2007 the applicant offered to take care of
the complainant and she accepted the magnanimous hand. She was
chauffeured to the applicant's Marlborough residence by a driver.
Thereafter,
she was informed she would no longer communicate with her relatives.
On
17 August 2007 the complainant was told to go to New Start Centre.
She was accompanied by the applicant's secretary, Queen Mbungaand
one Rutendo. Having been tested for HIV the applicant asked her for
the results.
As
they used to take turns to clean the applicant's bedroom she was
summoned by the applicant. After she entered the bedroom the
applicant locked it. The complainant was asked how she was coping
with the bereavement. The applicant proposed to marry her and she
declined. She was told to undress and lie on the bed. When she
declined she was forcibly thrown on the bed.
Against
her will she was then raped and deflowered.
As
she bled the applicant offered her some toilet paper with which she
wiped herself. The complainant was then released.
She
said she informed Tendai Ganyani and was told that is what happened
to girls who went to reside at the place.
The
complainant stated that the applicant used to quote verses from the
bible to justify his deeds. Reference was made to Exodus 21, Proverbs
3 and Corinthians 6 and 10.
The
applicant would routinely call the complainant where she would be
subjected to sexual intercourse against her will. Sometimes there was
group sex involving four other women.
At
some stage she was sent to stay at the applicant's house in Kadoma.
She had company in the form of Hazvinei Samanyanga, one of the
complainants.
The
complainant claimed her late parents left behind a farm and a flat.
It is not clear how the farm was being managed and if she derived any
benefit from it. But as for the flat, it was being leased for
US$150-00. The rentals would be transmitted through the mobile
platform, EcoCash. She stated that every time she went to withdraw
the money from an EcoCash agent at Greencroft Shopping Centre she
would be escorted by Queen Mbunga. She said she would first seek the
applicant's permission.
The
complainant stayed in Kadoma for seven months starting from February
2013. She had been accompanied to Kadoma by a pastor Bonda from the
church.
The
applicant used to threaten congregants with “placing them in the
hands of Satan”.
After
Hazvinei Samanyanga left for South Africa the complainant was linked
up with Simangele Nehohwa. This was after she sought assistance.
Apparently, Hazvinei got married when she went to South Africa. She
briefed her husband about Precious Kapfumvuti's ordeal. Hazvinei's
husband then communicated with Simangele's husband, Innocent. The
Nehohwas had quit Independent End Time Message church in 2000 after a
fallout with the applicant on moral issues.
Precious'
escape was executed in the afternoon of 12 October 2013.
Having
been driven in one of applicant's vehicles to attend church service
at Ellis Robins School, Precious was sprung up by Simangele Nehohwa
who was accompanied by some other women.
A
medical examination of Precious was conducted between 8 and 30 days
after the previous sexual act. Her emotional state was noted as
stressed. She had no injuries. There were healed hymenal tears at 3,
5 and 7 o'clock.
Winnie
Sakahuhwa joined Independent End Time Message church in 2009. At the
time of trial she was just 17 years old.
Her
father died in 2010. She first stayed with a church member, arising
from arrangements made by her sister and her husband who were
residing in Botswana. Apparently her sister was said to have
previously had an affair with the applicant. When the sister and
husband emigrated, Winnie moved to the applicant's residence in
December 2011. This was again arranged by the sister and her husband.
Apparently,
Masasa she was staying with had to leave Zimbabwe under unclear
circumstances.
When
she moved to the applicant's residence the applicant instructed her
to write a testimony on his preaching on polygamy and doctrine of
total separation. She had not preferred to live with her mother
because of the preaching on total separation.
On
the writing of testimony she had conferred with others and was
advised to claim that she was HIV positive and that she had slept
with several young men. This was an attempt to ward off the
applicant's predatory inclinations.
The
first encounter with the applicant was at the garage. She was lured
into a dark room. The applicant kissed her against her will. She was
pressed against the wall. The applicant told her he had slept with
other “sisters” and this ensured good marriages. She said she was
lifted and the applicant then raped her whilst propped against the
wall.
She
was told not to reveal to anyone and if she did so she would be
cursed.
On
the second occasion she was called to a cottage within the complex
dubbed “Chisipite”. After being forced to lie down she was then
raped. This was now in January 2012.
The
third occasion was in February 2012 when she went to seek permission
to collect her 'O' level results. She was shown text messages
from one of the applicant's wives in which she was inviting to be
intimate with him. She was also shown a video of the applicant having
group sex.
She
was then raped.
The
applicant would insert his penis in a vagina, withdraw and insert
again several times.
As
to why she did not report the matter she said she was told not to
tell anyone or else she would be placed in the hands of Satan.
Pressed
on why she did not tell her mother she said she did not want her to
be stressed as she was hypertensive. The complainant said she only
told her brother in-law that the applicant wanted to sleep with her.
As
to why she did not report the actual rape she said this was on
account of what the applicant had cautioned.
She
later reported to her brother in-law who is in Canada after reading
about the applicant's arrest. She said she could not report to her
sister as she had also been in a relationship with the applicant.
Winnie
was later collected by her mother. She said she reported the matter
to her mother after the applicant's arrest in February 2013.
The
medical examination of this witness was conducted thirty days after
the last sexual act. There were hymenal tears at 3, 4 and 9 o'clock.
Her emotional state was noted as withdrawn.
Winnie's
mother testified that her son in-law, McNeil Magunde offered to take
care of Winnie after the death of her father. After the son in-law
and Winnie's sister left for Canada Winnie went to stay with a
church member in Buhera. This church member, Emmanuel Musasa had been
introduced by McNeil Magunde.
Winnie
was not permitted to visit relatives during holidays.
Winnie
then moved in to stay at the applicant's residence in 2011.
Winnie's mother is the one who accompanied her to the applicant's
residence.
Precious
Kapfumvuti also went that day.
The
mother also met the applicant.
It
emerged that Winnie's sister, Linda went to stay with the applicant
between 2000 and 2008 after she completed 'A' level. The mother
did not approve. In February 2013 the mother received a call from
Winnie who wanted to move out of the applicant's residence. She did
not ask the reason although Winnie made several calls.
When
she eventually collected her, no report was made to her.
On
22 November 2012 she received a call from Superintendent Moyo who
told her to bring Winnie. She proceeded to Winnie's school where
she sought permission to take her to Harare.
Hazvinei
Samanyanga testified that she started attending the applicant's
church in 1998 whilst doing form two in Shurugwi. She finished school
in 2000.
In
accordance with church doctrine she was not supposed to stay with
parents.
She
left home and went to other church mates in Gweru. In 2001 she and
others embarked on a journey to visit the applicant's farm in
Chinhoyi. They passed via the applicant's home in Kadoma where they
met one of the applicant's wives. Hazvinei was told by the
applicant to remain behind as she was now going to reside at the
Kadoma house. There were applicant's children at the house.
Hazvinei requested to return home but the applicant objected. She was
told that civilisation and education were for the devil.
In
due course the applicant would hug the witness and in the process
touch her breasts and buttocks. When she questioned this, she was
told to trust the applicant. She was also told that if she wanted to
continue with studies she had to be intimate with the applicant. She
was told bad luck would befall her if she left the church.
In
2003 whilst alone with the applicant, the applicant made advances
which she spurned. He pushed her against the wall and she pushed him
away. She said she used to cry on account of what she was being
subjected to. The applicant would lift her dress. He would sometimes
open the bathroom door whilst she was naked.
In
2004 Hazvinei moved to Chinhoyi.
In
2005 she wrote a letter of complaint to the applicant. Nonetheless
the applicant persisted with her demands.
In
2006 she was told she could apply for a course at Seke Teachers
College. She travelled to Harare for purposes of attending the
interview. She failed to link up with Tawanda Nehohwa who was
supposed to assist her. She contacted Queen Mbunga who collected her
and took her to the applicant's house in Greendale.
There
she met the applicant.
As
she was bathing the applicant got in. When she protested, she was
told she had come to the lion's den. The applicant photographed
her. She was told that if she did not have sexual intercourse with
the applicant she would not attend the interview.
After
bathing, she went into a room where she wanted to use lotion. The
applicant got in and locked the door; she was forcibly undressed and
raped. She said she kept the panties which she wore on that day as
she had been deflowered.
The
panties were produced as an exhibit.
Hazvinei
was later accompanied to meet Tawanda Nehohwa by the applicant and
Queen. Prior to leaving other girls at the house had laughed at her.
She attended the interview and stayed at Tawanda's residence for
two weeks. She then commenced studies at Seke Teachers College.
She
would visit the applicant's residence during weekends and would be
raped. By then the applicant had moved to Marlborough.
She
had been told that church disputes should not be related to
non-believers.
This
witness would be shown pornographic videos and photographs. She would
also be photographed. After completion of her course she went to work
in Chinhoyi. She would attend church in Harare. Every Sunday she
would be given US$10 and she would be raped.
She
continued to work in Chinhoyi until 2011.
She
was subsequently told by the applicant to quit her job and she did so
without notice. She then moved to Marlborough where she stayed
between July 2011 and 3 January 2013. Thereafter she went to Kadoma.
From there she would attend church in Harare. After church they would
collect money for groceries.
On
9 March 2013 she was again raped.
In
May 2013 she ran away after telling Precious Kapfumvuti that she was
visiting her sick mother in Bulawayo.
When
she got to Bulawayo where she stayed for two weeks she got a passport
and went to South Africa.
Whilst
in South Africa Hazvinei communicated with Precious Kapfumvuti who
expressed a wish to escape. Hazvinei briefed her husband who in turn
liaised with Innocent Nehohwa.
Under
cross-examination this witness stated that she used to surrender her
entire salary to the church.
She
further stated that she had stayed in South Africa for five months
before she reported the matter. When she was contacted by
Superintendent Moyo in connection with Precious Kapfumvuti she then
took the opportunity to report the rapes.
She
further stated that she first wanted to secure her permit before she
could report the matter.
She
further conceded that since 2006 she had been in love with the man
who eventually married her. She was barred from communicating with
him. When they linked up in South Africa they discussed marriage. In
June 2013 she disclosed to her husband that she had been raped. They
married in September 2013.
The
witness also said she had been rebuked in church by the applicant.
Concerning
her salary she stated that she would place it together with the
withdrawal slip in a sealed envelope and hand to the applicant. When
the applicant was not present she would place in the box for
offerings.
Godwin
Simplicious Chitsinde testified that he met the applicant in 1978
before both of them became pastors.
Later,
he was to baptise the applicant whilst undergoing pastoral training.
The applicant's brother was a pastor. This witness had a fallout
with the applicant and others within the church. This was due to the
fact that he fathered a child before he wedded. As a result he was
disciplined and became an ordinary minister. He subsequently became a
pastor within the same church in 1991.
At
that time the applicant was ministering in Gweru.
The
witness first received complaints about the applicant's conduct in
1988. In 1995 he received further complaints and spoke to the
applicant. In 1997 he held discussions with the applicant and his
wife. Superintendent Moyo was assigned investigations in November
2013.
Winnie
Sakahuwa who was attending school at Guinea Fowl contacted following
receipt of an e-mail from a relative who was in Canada. The applicant
was already in custody.
In
view of the details disclosed in the evidence of witnesses it was
deemed necessary to conduct searches at the applicant's house. The
applicant was advised and he led Police Officers to his residence.
The applicant was said to have been very cooperative and jovial. They
searched the applicant's office. Then in the secretary's office
they recovered envelopes containing confessions by congregants.
Having been led to the applicant's bedroom they found a briefcase
with a combination lock which was on the bed. Inside the briefcase
were sexual enhancement drugs and two unused condoms. The drugs were
of various varieties and the officers queried the applicant if they
were prescribed by a doctor. The applicant explained that the drugs
were for his personal consumption. Further searches yielded two
pornographic videos from the inner pocket of the briefcase. The
applicant explained that the videos were for his entertainment.
The
witness made reference to the earlier recovery by other officers of a
thousand videos which contained, among other things sermons delivered
by the applicant. There was amongst these videos footage of the 2012
Christmas party. In his closing speech the applicant was heard
rebuking members of the church. Then there was another video in which
the applicant was making curses.
The
Law
The
starting point is s50(5) of the Constitution of Zimbabwe Amendment
(No.20) Act, 2013 which provides that -
“Any
person who is detained, including a sentenced prisoner, has the right
—
(a)
…………………………………………………...;
(b…………………………………………………….;
(c)…………………………………………………….—
(i)……………………………………………………;
(ii)…………………………………………………...;
(iii)…………………………………………………..;
(iv)…………………………………………………..;
(v)……………………………………………………;
(vi)…………………………………………………..;
(d)……………………………………………………;
(e)
to challenge the lawfulness of their detention in person before a
court and, if the detention is unlawful, to be released promptly.”
Mr
Magwaliba also cited ss46 and 49.
In
this respect s49(1) provides that -
“Every
person has the right to personal liberty, which includes the right —
(a)………………………………;
and
(b)
not to be deprived of their liberty arbitrarily or without just
cause.”
Mr
Magwaliba further submitted that when a court applies the common law
or interprets statutes, it must be guided by Chapter 4 of the
Constitution which deals with fundamental rights. Thus where a
decision fails to measure up to the fundamental provisions of the
Constitution, its decision must be set aside. He cited the South
African decision of Bato Star Fishing (Pty) Ltd v Minister of
Environmental Affairs & Ors 2004 (4) S 420 (ad).
Since
the applicant has been convicted and sentenced following a trial,
there is no question of him having been deprived of his liberty
arbitrarily or without just cause.
There
being no elaboration on the principles applicable in an application
for bail pending appeal in the Constitution or the Criminal Procedure
and Evidence Act [Cap 9:07] recourse is to be had to precedents.
The
overall consideration is whether there are prospects of success on
appeal.
In
making such determination the court has discretion where it balances
the interests of the administration of justice against the need to
uphold individual liberty.
Where
a person seeks bail pending appeal there is no longer a presumption
of innocence as they would have been found guilty. In this respect
see the cases of S v Manyange 2003 (1) ZLR 21 (H); S v Williams 1980
ZLR 466; S v Tengende & Ors 1981 ZLR 445 (S); S v Labushagne 2003
(1) ZLR 644 (S); S v Benatar 1985 (2) ZLR 205 (H); and S v Kilpin
1978 RLR 282 (AD).
The
notice of appeal articulates several grounds on which the trial
court's decision is attacked for having erred.
In
support of these grounds Mr Magwaliba submitted that there are
several instances the decision of the trial court does not measure up
with the fundamental provisions of the Constitution. He also attacked
the trial court's decision for applying the wrong principles in its
determination of the state of mind of the complainants.
In
respect of the wrong principle being applied, Mr Magwaliba referred
to the trial court's reliance on decisions dealing with the
approach to be adopted in relation of the testimony of a victim of
rape who is suffering from some defect of the mind whereby her
consent is thus vitiated.
On
that score he submitted that whereas the court ruled that the
complainants did not appreciate the sexual acts, the complainants
themselves testified that they knew what was happening save that they
did not consent.
The
trial court made, in my view, superfluous reference to R v K 1958 (3)
420 in which STEYN A.R. at 425 cited FAWKES R in R v Kalil Katib 1904
O.R.C. 1 tebl 2 thus:
“..that
the crime of rape is committed when by violating a woman when she is
in a state of insensiblity and has no power over her will, whether
such state is caused by the man or not, the accused knowing at the
time that she is in that state.”
The
trial court further cited the remarks of HOEXTER R quoted in R v K
(supra) at 425 in which he said:
“If,
therefore, a man has unlawful intercourse with a woman who is so
devoid of reason that she cannot exercise any judgment at all on the
question whether she will consent to or dissent from such
intercourse, that man is in law guilty.”
A
reading of the trial court's reasoning does not show that it ruled
that the complainants in the matter were under some disability of the
mind. It seems the court sought to justify that the complainants were
not free. In this respect the trial court went on to state that:
“The
witnesses who were called by the state were saying that they were
accepting the teaching, so as a result they were not in full control
of the situation which obtained. The indication is simply that when
dealing with cases involving religion, one has to go a mile further
and examine the effects of the teachings.
In
our own Supreme Court in the matter Re (sic) Chikweche 1995 (1) ZLR
235 and in particular p241, the then Chief Justice GUBBAY quoted with
approval the pronouncements of Justice Douglas in the matter United
States v Ballard, 322 US 78 (1944) p86 to 87;
'Men
may believe what they cannot prove. They may not be put to the proof
of their religious doctrines or beliefs. Religious experiences which
are as real as life to some may be incomprehensible to others. Yet
the fact that they be beyond the ken of mortals does not mean that
they can be made suspect before the law.'
The
above excerpt was used to justify the subjective nature of religious
dogma.
Quite
a lot can be gleaned from the practices of the applicant. The
complainants voluntarily joined his church. Thereafter they were
subjected to some indoctrination of total separation and submission
to authority (as in the form of the applicant).
That
they could not fraternalise with their relatives is evident. One of
the witnesses could not even be allowed to attend her sister's
funeral.
Therefore
some kind of conditioning of the complainants was initiated. That is
why they believed that church matters were not to be discussed with
outsiders.
One
can also detect a pattern of predatory behaviour on the part of the
applicant.
The
complainants appear to have been lured and lulled to accept the
applicant's benignity. The complainants were young and therefore
innocent. Two of them were told to undergo HIV testing and were then
raped after the applicant got to know their status. They had also
been made to write testimonies, something akin to confessions about
their personal lives.
This
must have been done with a motive to gain an intimate knowledge of
them before they were manipulated.
The
trial court did believe the complainants and indeed one cannot think
they made up such sordid accounts just to lend support to religious
war being waged by Pastor Chitsinde. If there is any doubt about the
veracity of the complainants' claims one has to have regard to some
similarities in some of the sexual attacks. These are exemplified by
the playing of pornographic videos to spice up the acts and the
indulgence in group sex.
What
appears to put the nail in the coffin is corroboration from an
unlikely source. It is like the applicant falling on his own sword.
These are the pornographic video discs that were found in the
applicant's brief case as well as the sex enhancement drugs.
These
lend weight to the rampant sexual perversion exhibited by the
applicant.
There
is no trace of any perverse conduct of planting these sexual
paraphernalia by Police Officers involved in the investigations.
Instead
of tripping on the authorities it cited the trial court's first
port of call should have been s69(1) of the Code which states that;
'Without
limiting Part XII of Chapter XIV, a person shall be deemed not to
have consented to sexual intercourse or any other act that forms the
subject of a charge of rape, aggravated indecent assault or indecent
assault, where the person charged with the crime -
(a)
uses violence or threats of violence or intimidation or unlawful
pressure to induce the other person to submit; or
………….'
There
certainly was unlawful pressure and some form of violence used
against the complainants to induce submission.
In
essence the evidence in this case amounts to single witness
testimony. As was held by GUBBAY CJ in S v Banana 2000 (1) ZLR 607
(SC) at 614-615;
'It
is, of course, permissible in terms of s269 of the Criminal Procedure
and Evidence Act [Chapter 9:07] for a court to convict a person on
the single evidence of a competent and credible witness. The test
formulated by DE VILLIERS JP in R v Mokoena 1932 OPD 79 at 80 was
that the evidence of such a single witness must be found to be 'clear
and satisfactory in every material respect.'”
In
attacking the trial court's reliance on authorities dealing with
complainants under some form of mental disability Mr Magwaliba
submitted that the correct approach is that adopted in S v Banana
(supra).
This
was in respect of the need to make timeous report of the complaint.
On
this aspect GUBBAY CJ at 616 had this to say;
“Evidence
that a complainant in an alleged sexual offence made a complaint soon
after its occurrence, and the terms of that complaint, are admissible
to show the consistency of the complainant's evidence and the absence
of consent. The complaint serves to rebut any suspicion that the
complainant has fabricated the allegation.”
I
have already observed that there was some corroboration of the
witnesses.
Corroboration
is not strictly a requirement but where it exists it cannot be
ignored. See also the remarks of GUBBAY CJ in S v Banana (supra) at
615 where he said;
“Where
the evidence of the single witness is corroborated in any way which
tends to indicate that the whole story was not concocted, the caution
enjoined may be overcome and acceptance facilitated. But
corroboration is not essential. Any other feature which increases the
confidence of the court in the reliability of the single witness may
also overcome the caution.”
The
requirements for admissibility of a complaint are:
1.
It must have been made voluntarily and not as a result of questions
of a leading and inducing or intimidating nature. See R v Petros 1967
RLR 35 (G) at 39G-H.
2.
It must have been made without undue delay and at the earliest
opportunity, in all the circumstances, to the first person to whom
the complainant could reasonably be expected to make it. See R v C
1955 (4) SA 40 (N) at 40G-H; S v Makanyanga (supra) at 242G-243C.”
In
the present case the reasons for late reporting of the matters
appears plausible.
This
is especially so in the cases of Winnie and Precious. The two appear
to have been in some kind of bondage. They did not appear to have
been free to travel as they liked. It is either they would be
escorted by a driver or by Queen Mbunga. Although escape from the
Marlborough premises was possible it was not easy as observed by the
trial court.
Again
the effect of indoctrination appears to have held sway against any
reportage.
The
bulk of the observations I have made are not apparent from the trial
court's judgment. This may well be a question of approach to
writing a judgment as opposed to total misdirection.
However,
the aspect of corroboration appears implicit in the trial court's
reasons.
In
short, one can sum up a pattern that emerged in respect of these
witnesses. There was separation leading to isolation, conditioning or
indoctrination, molestation and subjugation. The subjugation was in
the form of threats of placing them in the hands of Satan. Although
the applicant tried to demonstrate what he meant by making those
curses, it is clear that those biblical verses were never interpreted
to the congregants. Therefore the complainants could have genuinely
believed the effect of the curses.
In
matters religious and the metaphysical even the enlightened ones have
been found to be gullible.
It
is improbable that Precious and Winnie concocted all the sordid
details of what they endured on behalf of a third party.
I
would therefore hold that there are no prospects of success on appeal
against conviction especially the counts involving Precious and
Winnie.
There
may be doubt regarding the conviction relating to Hazvinei.
This
is because the circumstances pertaining to this witness are different
from those relating to Precious and Winnie. There is a possibility
that on the first occasion Hazvinei may have been raped. Her evidence
on that score appears to be credible. However, she appears to have
acquiesced on the subsequent occasions. This is particularly so if it
is considered that initially she was not residing with the applicant.
She would visit the applicant's residence during weekends during
which she was then raped.
This
appears to be unconvincing.
After
these acts regard should also be had to the fact that she stayed in
Bulawayo for two weeks before she went to South Africa. She then
spent several months in South Africa before she fortuitously reported
the matter when Police contacted her in connection with Precious'
matter.
All
these and a host of other pertinent issues were not interrogated by
the trial court.
The
trial court's assessment of the evidence on unlawful possession of
obscene or indecent material seems unassailable. The trial court also
correctly applied the law.
The
provision in question states that -
“(1)
No person shall, without lawful excuse, have in his possession any—
(a)
publication, picture, statue or record that is indecent or obscene or
prohibited; or
(b)
recorded video or film material on which is recorded a film that is
indecent or obscene or prohibited.
(1a)
Any person who contravenes subsection (1) shall be guilty of an
offence and liable to a fine not exceeding level six or to
imprisonment for a period not exceeding one year or to both such fine
and such imprisonment.”
Possession
of a thing entails physical control of that thing and an intention to
exercise control for oneself or another. In this respect see S v
Masson 1982 (1) ZLR 216 (SC) and S v Ndiweni 1983 (2) ZLR 49 (H).
The
evidence overwhelmingly shows that the applicant had the indecent
material in his brief case which had a combination lock as opposed to
the material being in the store room as he claimed. Even if it were
to be grudgingly accepted that the material was in the store room,
the applicant was aware of its existence as he said it awaited
destruction at a convention. This material was under his roof.
What
lawful excuse did he give for its possession?
In
R v Mackay 1964 R & N 51 the phrase lawful excuse was considered
in the context of the appellant having been found in possession of a
publication that was prohibited. It was held that lawful excuse is a
reason for not complying with the law.
It
therefore means that the applicant must have advanced a reason for
possession which is in accordance with the law.
It
cannot be a lawful excuse that the applicant possessed the indecent
material because he wanted to have it destroyed at some future date.
By reason of his leadership of the church he arrogated himself the
authority to collect and destroy the obscene material.
In
any event the circumstances of his possession of the material do not
lend weight to that explanation.
The
indecent material must have been meant for corrupting the witnesses
or self indulgence within his harem.
No
submissions were made in respect of sentence on the rape counts.
Nonetheless,
in the event that the conviction relating to Hazvinei is overturned
it follows that the resultant sentence will also be quashed. That
notwithstanding, if the convictions relating to Precious and Winnie
are upheld, the sentences imposed may be found to be appropriate.
I
therefore see no prospects of success on appeal in respect of those
counts.
The
applicant's moral blameworthiness is high and merits severe
punishment. This may well have been a case that deserved to be
referred to the High Court for sentence for purposes of precedence.
The
sentence imposed on the count for unlawful possession of indecent or
obscene material is tainted with irregularity as no reasons were
advanced by the trial court. It will obviously be interfered with.
The redeeming feature of this sentence is that it was ordered to run
concurrently with the sentence in the third count.
In
the result, the application for bail pending appeal is hereby
dismissed.
Thondhlanga
and Associates, applicant's legal practitioners
Prosecutor-General's
Office, for the State
