MATHONSI J: At the conclusion of
submissions by the parties we upheld the appeal, set aside the conviction of
the appellant and quashed the sentence.
We pointed out that the reasons for doing so would follow. These are the reasons.
The appellant, who appeared in person, was convicted of 4 counts of rape
by the regional magistrates' court in Bulawayo and sentenced to 60 years
imprisonment that, is, 15 years on each count and of that total term of
imprisonment, 10 years was suspended on condition of good behaviour. This left him with an effective imprisonment
term of 50 years.
The appellant was not happy with both the conviction and sentence and
launched an appeal against conviction and sentence. At the time we heard the appeal, the appellant
had been languishing in prison for more than 5 years he having been convicted and
sentenced on 25 April 2006.
The allegations against the appellant were that sometime during the
month of January 2006 he had way laid his daughter, the complainant, then aged
11 years, on her way from school and raped her twice. It was further alleged that between January
and March 2006 he had again way laid the same complainant on her way from
school and raped her once. In the 4th
count it was alleged that sometime in April 2006, he lured the same complainant
to a kraal at his homestead and raped her once but was caught red-handed by his
wife who however did not report the alleged rape to anyone.
It was not until much later that his wife reported the rape but only
after finding the appellant assaulting their son, leading to the arrest of the
appellant.
In convicting the appellant aforesaid, the trial magistrate relied on
the evidence of the complainant, her mother and the medical report prepared by
the doctor who examined the complainant on 21 April 2006. The complainant told of repeated abuse at the
hands of the appellant over a period of time.
She said she did not report the rape to anyone because the appellant
threatened her with assault.
The complainant's mother testified that after she had caught the
appellant raping the child in the kraal she did not report the matter to the
police or her mother in law, who was staying with them, because the appellant
had threatened to kill her if she did.
She testified that she had examined the complainant and observed that he
“vagina was seriously ravaged.”
The appellant himself gave evidence at the trial to the effect that the
charges against him were trumped up because she was having serious matrimonial
problems with the complainant's mother.
He had caught her red handed having sex with a police officer who had
earlier victimised him by arresting him on trumped up stock theft charges. He was acquitted of these charges and upon
being released from prison he had found that officer being intimate with his
wife, resulting in him fighting the officer.
The appellant says he was arrested for that and the police officer was
hospitalised for 5 days.
According to the appellant his wife never forgave him for that and she
decided to cause his arrest again on false rape charges.
The appellant's story was corroborated by the second state witness, his
wife who admitted even in her evidence in chief that she had indeed been caught
with an officer, she preferred to call a neighbourhood watch committee
member. His denial of having abused the
complainant is also supported by the state case in the form of the medical
report.
Although, the complainant's mother claimed to have observed that complainant's
“vagina was seriously ravaged” this was not borne by the medical report. According to the doctor, although the
complainant's hymen was “absent” (which is not unusual), the 11 year old
complainant was not sexually active, as would be expected of someone so
repeatedly abused. More importantly,
penetration was “not effected.”
In my view, had the complainant been repeatedly abused as alleged and
her mother had indeed observed a “ravaged vagina,” the doctor would have
observed this during examination of the complainant. If this is considered together with the fact
that there was an undue delay in reporting the alleged abuse even after the
mother had allegedly caught the appellant in the kraal, the inescapable
conclusion is that there is merit in the appellant's claim that the preference
of rape charges against him was motivated by an improper desire to punish him
due to the matrimonial problems he had with his wife.
While corroboration of the complainant's evidence is no longer a
requirement in our law (S v Banana)
2000 (1) ZLR 607(S), it is still necessary for the trial court to carefully
examine the nature and circumstances of the alleged offence. The timeous reporting of the offence is an
important factor. Our law still requires
the courts to approach the evidence of a child complainant in sexual offences
with great care and caution because there is always a danger of children
falsifying evidence.
It is difficult to understand how the court a quo arrived
at the conclusion that the appellant was guilty in light of the inherent
weaknesses in the evidence presented for the state alluded to above. The situation is exacerbated by the fact that
the trial magistrate did not give reasons at all for finding the appellant
guilty. While the record states that the
reasons are on tape, MrNdlovu for the
Respondent submitted that no reasons were found on the tape recording of the
trial.
It is therefore not easy to ignore the possibility that the magistrate
did not apply her mind at all to the case before her. Courts have repeatedly stated the need for
judgments to be reasoned and for those reasons to be stated. As stated in S v Mapiye S -214-88:
“To confirm the
conviction on the second count; would, in my view, result in a failure of
justice. The omission to consider and to
give reasons for convicting the appellant on count two is fatal to the
prosecution case. It is a gross
irregularity. Appeals are argued and
decided on the contents of a certified record of the trial proceedings. If those contents are stored in the mind of
the trial magistrate, they are not good enough.” (my emphasis)
It is a gross irregularity for a magistrate to omit to give reasons
which reasons remain stored in his/her mind without being committed to
paper. S v Makawa and Another 1991 (1) ZLR 142(S) at 146D. The judgment of the trial court must also
contain a summary of the facts proved and the court's assessment of the credibility
of witnesses. If the judgment of the
trial court is inadequate, or, as in casu, is missing completely,
the appeal may have to be allowed. S v Marevesa S 108-91.
Faced with all these insurmountable difficulties, Mr Ndlovu for the Respondent was forced to concede that the
conviction of the appellant on all the 4 counts was not sustainable. The concession was properly made. That really disposes of the matter.
I must however mention that the court a quo adopted a
tariff approach in sentencing the appellant which approach should be
discouraged. It is unacceptable for the
court to just pile up sentences for each court even when, some of the counts,
like counts one and two, should have been treated as one for purposes of
sentence. The result was that she ended
up with 60 years imprisonment which was wholly excessive and induces a sense of
shock.
It is for these reasons that we allowed the appeal against both
conviction and sentence with the result that the conviction of the Appellant on
all four counts of rape was set aside and the sentence quashed.
Ndou J
agrees.....................................................................
Criminal Division, Attorney
General's Office, respondent's legal practitioners
