MATHONSI J: At the end of hearing this matter we dismissed
the appeal against both conviction and sentence and said our reasons for
dismissing it will follow. The following
are the reasons:
The Appellant was convicted by the Regional Magistrates Court, Bulawayo
on the 9th August 2007 of three counts of rape and sentenced to 18
years imprisonment of which 6 years imprisonment was suspended for 5 years on
condition of good behaviour. He appealed
to this court against both conviction and sentence on the following grounds:-
“1. ON CONVICTION
(a) The trial magistrate erred in holding
that the Appellant was guilty on the three counts of rape and ignored without
any rational basis that:
(i) the complainant had during the
investigations told the police that she had been raped by one Alberto from whom
a warned and cautioned statement had been extracted and one Jethiro a school
mate.
(ii) the complainant's evidence was
manifestly contradictory. What she said
in court was very different from what she told the police and was recorded in
her statement.
(b) The trial magistrate erred in holding
that the Appellant was guilty on the three counts of rape in the basis of the
evidence tendered by the
complainant and her mother in that it is
manifestly inconceivable that the mother of the complainant would, having
learnt of the rape on the first day of its alleged occurrence send back the
complainant to school the following day to face her alleged molester instead of
taking action instantly.
(c) the net result of the magistrate's
judgment constitutes a serious miscarriage of justice which this Honourable
Court should interfere with.
2. ON
SENTENCE
(a) The sentence imposed on the Appellant by
the trial magistrate is manifestly excessive as to induce a sense of shock
considering that:
(i) the magistrate took all three counts as
one for purposes of sentence.
(ii) the Appellant spent over a year waiting
for the judgment. Judgment was supposed
to have been passed on the 25th July 2006 but it was delivered on
the 9th August 2007.”
In our law, a young person under the
age of 12 years is incapable of consenting to sexual intercourse and as such
age alone vitiates consent. The
complainant was a 10 year old grade 5 pupil at the material time while the
Appellant was her class teacher. The
evidence led in the court a quo established that the complainant
had recently been raped because she was 10 year old who was incapable of
consenting to sexual intercourse and yet the medical affidavit of Andrew
Ndiweni, a clinical officer at Plumtree Hospital showed that she had recently
been raped. This arises from the fact
that she had bruises in her vagina, had a discharge and the hymen was
absent. That report concluded that
penetration had been “surely effected”.
It is important to note that the medical affidavit was produced by
consent.
It follows therefore that somebody
must have raped the complainant at the material time. In his judgment the trial magistrate found
that the medical conclusions were consistent with the evidence of the
complainant and her mother Regina Sibanda.
The rape was discovered by the
complainant's mother on the very first day the rape occurred when she realised
the complainant was having difficulties in walking. When she confronted the complainant, the
latter pointed at the Appellant as being the perpetrator. Regina Sibanda inspected the complainant and
found semen deposits in her vagina. This
was corroborated by a neighbour Madeline Sibanda who also inspected the child.
Mr
Nyathi, who appeared for the Appellant strongly attacked Regina Sibanda for
failing to report the matter to the school authorities or the police
immediately upon discovery and instead letting the complainant return to the
school only to be raped two more times.
He submitted that the pointed to the fact that both the complainant and
her mother were not credible witnesses.
The trial magistrate carefully analysed the behaviour of these witnesses
at the time and found it to be normal and expected especially as they first
looked for the neighbourhood watch people of the area who are expected to
assist them file a report with the police in that locality. The trial magistrate
also accepted that it was normal for a woman confronted with such a predicament
to await the return home of her husband who was in South Africa and had
instructed her to wait for him.
The law requires the court to apply
the cautionary rule in examining the evidence of young children. However in doing so the court is entitled to
take into account the absence of evidence suggesting the child is lying; see
Hoffmann and Zeffertt, The South African Law of Evidence, 4th
Edition 1992, Butterworths at p581 where the learned author said:-
“The danger of
acting upon such evidence (of young children) must be borne in mind by the
trier of fact. It makes no difference
whether the child's evidence has been sworn or unsworn. The court is entitled to take into account
the falsity or absence of evidence by
the accused or any
other features which show that the child's evidence is unquestionably true and
the defence story false”.
See also S v Banana 2001(1) ZLR 607(S).
The Appellant's biggest problem is that he is the first person to have
pointed by the complainant as the culprit when she had just been raped and this
report was made to the very person, the mother, to whom the report was expected
to be made.
He has not shown why the young girl
would have falsely accused him. The
trial magistrate went to great length in evaluating that issue going through
the evidence of the Appellant and his three witnesses none of whom could shed
light as to why the complainant could falsely accuse the Appellant. It was also accepted that Regina Sibanda did
not even know the Appellant. We are
satisfied that the magistrate properly accepted their evidence.
Mr
Nyathi also took issue with the fact that during investigations the
complainant had mentioned two other people, a grade 5 pupil and classmate of
the Jethiro and Alberto Moyo who was a Form 3 pupil at a neighbouring
school. The manner in which the two
school boys were mentioned was never clarified and all we know about them is
contained in defence counsel's cross-examination of the complainant during the
trial. Mr Nyathi could not explain why the statement allegedly made by the
complainant presumably implicating the two boys was never produced in court and
neither was it read into the record. It
is still not part of the record. In his
judgment the magistrate was believed the explanation given by the complainant
and her mother that the police had threatened her to force her to mention other
people besides the Appellant and that her mother had been asked to leave the
office when this unfortunate event took place.
Mr
Nyathi could not give a meaningful explanation of why the police officers
who allegedly received the statement implicating those two boys, if ever if
did, were not subpoenaed by the defence to testify. Nothing really turns on counsel's efforts in
this regard especially as there is nothing in the record to even suggest that
complainant was raped by any of the two school boys.
Regarding sentence, Mr Nyathi argued that it is so excessive
as to induce a sense of shock because the Appellant is a teacher who had lost
his job and therefore a lengthy term amounted to double punishment. He
suggested a sentence of 12 years with 5 suspended considering that Appellant
had spent a long time awaiting judgment.
Rape is a serious offence which currently
carries a maximum sentence of life imprisonment. In considering an appropriate sentence in
rape cases the court must have regard to a number of factors including the age
of the victim, the degree of force used or violence used, the extent of
physical and psychological injury inflicted, the age of the person who
committed the rape and whether the culprit was in a position of authority over
the victim.
In this case, the Appellant was the
teacher of the victim, a victim who was only 10 years old and doing grade 5 and
he took advantage of his position of authority to inflict a sustained attack on
this helpless simple rural girl over three consecutive days using the same modus
operandi. The degree of physical
and psychological trauma suffered by the victim is immeasurable and yet the
Appellant was unrepentant and in fact appeared to derive sadistic pleasure in
castigating the innocent girl and painting her as someone of loose morals.
The aggravation is huge and we are
satisfied that the trial magistrate properly exercised his discretion in
imposing the sentence that was imposed in this case.
The
appeal against conviction and sentence is completely without merit and is
accordingly dismissed.
Mathonsi
J............................................................
Cheda J
agrees....................................................
Sansole
and senda, appellant's legal practitioners
Crimical Divison Attorney
General's Office, respondent's legal practitioners
