NDOU J: The
appellant was convicted of five (5) charges by a Bulawayo Regional magistrate. Counts 1, 2 and 3 were treated as one for the
purpose of sentence and the appellant was sentenced to twenty (20 years
imprisonment. Count 4 and 5 were treated
as one and the appellant was sentenced to five (5) years imprisonment. Of the total sentence of twenty-five (25)
years imprisonment, five (5) years were suspended on the customary conditions
of good future behaviour. The offences
for which the appellant was convicted are, count 1 unlawful entry into
premises, count 2 robbery, count 3 rape, count 4 unlawful entry into premises
and count 5 attempted rape in contravention of sections 131, 126, 65, 131, and
189, respectively, of the Criminal Law (Codification and Reform) Act [Chapter
9:23]. The background facts are the
following:
Counts 1, 2 and 3
On 17 April 2007 at about 2300 hours
the appellant was alleged to have unlawfully broken into a kitchen hut at
Cornelious Akabondo's homestead at Village 2 Insuza. In this hut were four women fast asleep i.e.
Bridget Akabondo, Gladys Thebe, Nakuluyi Akabondo and Debra Akabondo. The appellant allegedly awakened the women
and ordered them to cover their heads with blankets and not to make any
movements. Thereafter he allegedly
robbed Bridget of Z$20 000. Thereafter
he allegedly raped Debra. To achieve all
this, the appellant allegedly threatened to harm these women with an axe and
knobkerrie if they did not submit to his unlawful demands. The appellant raised a defence of an alibi. The main issue was whether the appellant was
properly identified as the intruder.
This is a straight forward denial of the prosecution case on the issue
of identity. It is trite that there is
no onus on the accused to prove his alibi, if on all the evidence there is a
reasonable possibility that the alibi is true, there must be the same
possibility that he did not commit the crime, and he is entitled to be
acquitted – R v Dube 1915 AD 557 at 582; R
v Biya 1952 (4) SA 514 (A) at 521 C-D
and S v Mutandi 1996 (1) ZLR 367 (H) at 369. The State exhibited a cavalier approach
towards the crucial issue of identity in this case. This seems to be a common error by
prosecutors these days. Such
lackadaisical way of adducing identity is disturbing as it results in
acquittals even when the state has evidence at its disposal to prove the guilty
of the accused. Identification parades
have become a rarity. In this case such
a parade was necessary as the witnesses did not know the intruder prior the
offences. Only one witness claims to
have identified the appellant during the brief moment when he allegedly lit a
match. This issue was not carefully
canvassed in detail.
Suggestions of factors to be
investigated included, but are not limited to – lighting, visibility, eye
sight, extent of prior knowledge, accused's face, voice, build, gait and dress
etc.
This issue was aptly captured by HOLMES JA in S v Mthethwa 1972 (3) SA 766 (A) at page 768
in the following terms:
“Because of fallibility of human observation, evidence of
identification is approached by the courts with some caution. It is not enough for the identifying witness
to be honest: the reliability of his observation must also be tested. This depends on various factors, such as
lighting, visibility and eye sight; the proximity of the witness; his
opportunity for observation, both as to time and situation; the extent of his
prior knowledge of the accused, the mobility of the scene; corroboration,
suggestibility, the accused's face, voice, built, gait and dress; the result of
identification parades, if any, and of course, the evidence by or on behalf of
the accused. The list is
exhaustive. These factors, or such of
them as are applicable in a particular case, are not individually decisive, but
must be weighted one against the other, in light of the totality of the
evidence and the probabilities.” S v Mehlaphe
1963 (2) SA 29 (A); S v Ndlovu & Ors 1985 (2) ZLR 261 (S) at
263G – 264E; S v Dhliwayo & Anor 1985 (2) ZLR 101 (S) at 107 A-D; S v Mutandi,
supra, at 117 (SC) and S v Vhera 2003 (1) ZLR 668 (H) at 672-4.
In
casu, the learned Regional Magistrate made a bald statement that the
appellant “was properly identified”. The
record is however, silent on what the magistrate relied on in arriving at that
conclusion. As alluded to above, the
offences occurred during a dark night. The witness did not have prior knowledge of
the assailant. The witness only saw the
alleged intruder briefly when a match was lit.
The record does not say when the witness next saw the appellant and
under what circumstances. With this in
mind, the respondent does not support the conviction in counts 1, 2 and 3. The concession, in my view, is properly made
as it is unsafe to sustain the conviction in such circumstances.
In counts 1, 2 and 3 the appellant
is accordingly entitled to acquittal.
Counts 4 and 5
In count 4 the evidence against the
appellant is overwhelming. He says he
entered the complainant's house at night and deliberately did not announce his
entry. He said he secretly entered the
house because he wanted to drink water and disappear without the owner of the
homestead noticing. He did this to avoid
the talkative owner of the homestead.
This story of seeking water to drink in the middle of the night is false
and ridiculous. Why enter into someone's
house secretly at night just to quench thirst?
Appellant stated that he was about two (2) kilometers from his own
homestead. This conviction is count 4
has to stand.
In count 5, the complainant
disturbed the appellant before he did anything in the house. When appellant lit a match she screamed for
help resulting in a struggle with the appellant. The appellant's intention cannot be discerned
from the evidence adduced. Certainly
there is no evidence that he had reached a stage of attempting to rape or
sexually abuse the complainant. His intention
remains unknown. The conviction in count
5 cannot stand.
Sentence
Because the appellant stands
convicted only of one count of unlawful entry, the sentence has to be
interfered with. The trial court treated
the accused as a first offender. This issue
was equally not pursued as to his credit, the appellant informed us that he was
candid enough to inform us that he has a previous conviction for
housebreaking. On appeal this is no
longer relevant and we cannot use this factor against him. What it shows, however, is that prosecutors,
out of convenience, are failing to prove the accused person's previous
records. This is not acceptable. Every endeavour should be made to establish
whether or not the accused is a first offender especially in serious cases. In
casu, the appellant has to benefit from the prosecutor's weakness.
Accordingly, the appeal against
conviction in count 1, 2, 3 and 5 is upheld and conviction is quashed and
sentences set aside. The conviction in
count 4 is confirmed. The sentence
imposed by court a quo is set aside
and substituted by a sentence of 3 years imprisonment.
Cheda
J ……………………………………………… I agree
Criminal Division, Attorney General's Office,
respondent's legal practitioners
