NDOU J: On
16 April 2004, the appellant was convicted by a Bulawayo Regional Magistrate of
rape and impersonating a police officer in contravention of section 64 of the
Police Act [Chapter 11:10]. On the
charge of rape, he was sentenced to eight (8) years of which two (2) years were
suspended on the customary conditions of good future behaviour. On the charge of impersonating a police
officer he was cautioned and discharged.
He has appealed against the conviction and sentence in the rape charge.
After hearing Ms Nunu, for the appellant, we dismissed
the appeal in its entirety without hearing Mr Hove, for the respondent. We
indicated that our reasons for doing so will follow. These are they.
It is common cause that on the
evening of 27 September 2000 the appellant met the complainant and her
boyfriend Tanaka Ncube on a path at Centenary Park, Bulawayo. The appellant alleged that the two had been
making love before his arrival at the scene and blew a whistle pretending that
he was alerting other policemen. The two
were reprimanded for doing so in the public.
They denied that they were making love but said they were merely
chatting. Save for the blowing of the
whistle, these facts are beyond dispute.
The appellant denied that he purported to be a policeman at the time he
rebuked them. The trial court accepted
the complainant's version of events of what transpired thereafter. The complainant testified that after the
appellant rebuked them, he ordered them to go separate ways. They obliged believing that the appellant was
a policeman. The appellant later
followed her after she had separated from her boyfriend. When the appellant caught up with her he
walked by her side. The appellant then
stated that since her boyfriend had absconded, he was going to arrest her. He ordered her to follow him to the other
side of the park. She complied as she
was under the impression that he was a police officer. The appellant threatened her with eighty (80)
days incarceration. He then said if he was to free her, he had to have sexual
intercourse with her first. Against her
will he dragged her by the arm to a shrub in the park. He ordered her to take off her trousers,
which she did. She said he pulled out a
condom from his bag but she is not sure whether or not he used it during the
sexual act. He raped her one. Thereafter, he ordered her to dress up
properly and leave. He ordered her not
to look back as he walked away from the scene.
She complied and left the scene.
It is her testimony that she managed to observe the appellant and his
facial features during this ordeal. As
she left, she walked to the city centre and ended up near Bulawayo Health
Studio. She met her cousin Martin
Sibanda who enquired why she was crying.
She told him that she had been raped at the Centenary Park. Martin hired a taxi and they went to the scene
and proceeded to the side of the park where there is a police post and reported
the matter. About a week later, when she
was in the company of Martin in a commuter taxi, she spotted the appellant and
informed Martin. A report was made to
the policeman at the taxi rank and the appellant was arrested. The issue of identity does not arise in this
matter as the appellant does not dispute that he met the complainant and her
boyfriend in the Centenary Park on the day in question. He does not dispute that he rebuked them for allegedly
indulging in a sexual act in the park. The
complainant testified that the person who rebuked them went on to rape
her. She, therefore, cannot be mistaken
on the appellant's identity. Once the
issue of identity was resolved, the court a
quo had to determine why the complainant would falsely incriminate the
appellant. The complainant did not know
the appellant before the fateful date.
The court a quo found the
complainant to be a credible witness.
This is a finding on credibility of the witness based on her demeanor
and facts of this case. There are many
authorities of the Supreme Court and persuasive authorities from other
jurisdictions on the proper approach of an appellate court to the consideration
of a decision based on fact – Hughes
v Graniteside Holdings (Pvt) Ltd
SC-13-84 and S v Isolano 1985 (1) ZLR 62 (SC) at 63C-G. In the case of S v Isolano, supra, the
court referred with approval the following remarks by LORD MacMILLAN in Watt (or Thomas) v Thomas [1947] 1 ALL ER 582 (HL) at 590B-D –
“The
appellate court had before it only the printed record of evidence. Were that the whole evidence it might be said
that the appellate judges were entitled and qualified to reach their own
conclusion upon the case, but it is only part of the evidence. What is lacking is evidence of the demeanor
of the witnesses, their condour or their partisanship, and all the incidental
elements so difficult to describe which make up the atmosphere of an actual
trial. This assistance the trial judge
possesses in reaching his conclusion, but it is not available to the appellant
court. So far as the case stands on
paper, it not infrequently happens that a decision either way may seem equally
open. When this is so, and it may be
said of the present case, then the decision of the trial judge, who enjoyed
advantages not available to the appellant court, becomes of paramount
importance and ought not to be disturbed.
This is not an abrogation of the powers of court of appeal on question
of fact. The judgment of the trial judge
on the facts may be demonstrated on the pointed evidence to be affected by
material inconsistencies and inaccuracies, or he may be shown to have failed to
appreciate the weight or bearing of circumstances admitted or proved, or
otherwise to have gone completely wrong.”
In
casu, the trial magistrate believed the complainant and Martin
Sibanda. The magistrate made an adverse
finding on the credibility of the appellant.
I have carefully considered the issues raised by Ms Nunu, for the appellant. I
do not find any misdirection in the trial magistrate's finding of
credibility. I am persuaded that the
trial magistrate was correct in rejecting the defence evidence and in accepting
the prosecution evidence. There is no
doubt in my mind that on the evidence before her the trial magistrate arrived
at the right decision as far as conviction is concerned. Ms Nunu,
failed to make any meaningful submissions on the question of sentence. This is understandably so because the
sentence erred on the side of leniency.
The appeal against sentence is equally devoid of any merit.
Accordingly, we dismissed the appeal
against both conviction and sentence as alluded to above.
Kamocha
J …………………………………….. I agree
Calderwood, Bryce Hendrie & partners, appellant's legal practitioners
Attorney-General,
respondent's legal practitioners
