CHEDA J: This is an appeal against the judgment
of the Regional Court sitting at Tsholotsho handed down on the 17th
February 2010.
The
allegations against the appellants are that on the 25th October
2009, the two appellants together with three other accomplices assaulted and
raped the complainant, one Bongani Ncube.
Appellants were both aged 18 years while their accomplices were aged
17
years. Complainant was aged 14 years.
It
is the state's case that on the day in question, complainant and her friend
Gugulethu Moyo were proceeding to see their boyfriends when they met second
appellant who was coming from the opposite direction. While they were still walking the two
appellants together with their three accomplices approached them from behind
running. They, without provocation
started assaulting complainant all over her body with a leather belt and a
sjambok. Gugulethu Moyo ran away. Complainant sustained injuries as a result of
this assault.
During
the assault complainant fell down and was dragged to the bush where they laid
her down facing upwards. They all took
turns to rape her after covering her face.
They then left for their respective homes while she also proceeded to
her own home. She did not make a report
immediately after the assault and rape as she feared reprisals from her parents
and the threat from her assailants. She,
however, made a report later after her father had confronted her upon receiving
information about the incident.
They
pleaded not guilty to both charges, but, were nonetheless convicted and
sentenced to 18 years imprisonment of which 3 years was suspended on the usual
conditions of future good behaviour.
It
is their arguments that their identities were not positively established and as
such complainant wrongly implicated them.
Complainant
and all the appellants live in the same area.
They know each other very well and it was therefore easy for her to
identify them even in darkness.
Their
identities were established with certainity.
They did not dispute that complainant knew them prior to this day.
To
me, the trial court made correct findings of fact regarding their
identities. These courts will not easily
interfere with factual findings by trial courts unless it can be shown that
there was clearly no basis upon which a reasonable court applying its mind
could have believed the assertions being submitted before it. This point was made clear in S v Godfrey Nzira SC 23/06 where CHEDA
JA stated:-
“I
must point out here that an appeal court is very unlikely to go against factual
findings of the trial court which had the opportunity to listen and actually
see the witnesses and observe demeanour when giving evidence, unless it is
shown that there is a clear misdirection on the part of the trial court.”
In
casu, no misdirection of any sort has been shown and as such the courts
factual finding can not be faulted. The
conviction is accordingly confirmed.
With
regards to sentence, appellants have vigorously argued that the sentence
imposed is so severe so as to induce a sense of shock. It is their arguments that as first offenders
they should have been treated with leniency.
In
as much as these courts are not keen to send first offenders to prison, a lot
depends on the type of offence and the circumstances surrounding the commission
of the said offence.
The
Appellants met the complainant walking during the night with a friend destined
for their boyfriends in the neighbourhood.
They assaulted her and dragged her into the bush where they took turns
to rape her. This was a ravenous attack
designed to ensure submission in furtherance of forced sexual intercourse. The pain and anguish complainant went through
when 5 young men exhibited their sexual process is hard to imagine. The attack was callous and can only be
described as beastly. Rape by one person
is abhorrent enough, let alone when being perpetrated by happy-go-lucky young
men of appellants' ages. The prevalence
of these offences as noted by the trial court is indeed correct. Communal lands have since time immemorial
been regarded as peaceful havens were people can travel freely anytime without
fear of molestations. If these lands are
now turning into fearsome jungles, these courts have a duty to tame them.
Even
if the sentence may appear on the harsh side, the fact that part of it has been
suspended, that to me is an indication that the trial court had in mind the
need to check their future conduct. A
message should be driven home to those of like-mind that those who, even at a
young age embark on unlawful sexual intercourse or orgies either out of
adventure or genuine adolescence sexual desires without consent of the female
species will be treated harshly.
This
sentence therefore does not warrant interference. The appeal is accordingly dismissed.
Ndou
J.................................................................
Hwalima Moyo and Associates, appellants' legal
practitioners
Criminal Division, Attorney
General's Office, respondent's legal practitioners
