MATHONSI J: This is a criminal appeal against both the
conviction and sentence of the Appellant by the Regional Magistrates Court,
sitting at Bulawayo on 18 July 2006. The
Appellant was convicted of one count of rape and sentenced to 8 years
imprisonment of which 3 years imprisonment was suspended for 5 years on the
usual conditions.
Aggrieved
by that conviction and sentence, the Appellant noted an appeal against both
arguing that there was absolutely no evidence led on behalf of the State upon
which a conviction could be founded. He
further attacked the sentence on the basis that there was no discenable reason
why the court a quo sentenced him as it did, when, at the time of
the alleged offence, he was a juvenile of 17 years and as such, in his view,
the sentence induced a sense of shock.
The
state has conceded that both the conviction and sentence cannot be
sustained. Mr Mabhaudi for the State submitted, in making the concession,
that:
“The State called three
witnesses, viz, Wilson John Makalima, Onmie Makalima and Nozipho
Baloyi. The first two witnesses were recalcitrant
witnesses. Nothing emerged from their
testimony that implicated the appellant in the commission of the offence. The victim who was aged 5 years at the time
of her testimony did not say anything that incriminated the accused. The Respondent concedes that at the time close
of the state case no prima facie case had been established.”
Having
gone through the record of proceedings and the submissions made by counsel for
both parties we are of the view that the concession has been properly
made. There was no basis whatsoever for
the conviction of the Appellant and no justification for the departure by the
learned Regional Magistrate from the usual sentencing options in respect of
juveniles.
Accordingly,
the appeal succeeds and the conviction and sentence of the Appellant are set
aside and in their place is substituted the order that the Appellant be and is
hereby found not guilty and acquitted.
Mathonsi
J.......................................................................
Kamocha
J agrees.............................................................
James, Moyo-Majwabu and Nyoni appellant's legal
practitioners
Criminal Division, Attorney
General's Officer, respondent's legal
practitioners
