CHEDA
J: On the 12th June 2012 the appellant filed a notice of
appeal challenging the conviction of two counts of rape for which he was
sentenced to 20 years imprisonment of which 4 years imprisonment was suspended
for 5 years on condition of good behaviour.
The State's allegations with regards to count 1 are that
the accused who was aged 50 years at the relevant period and is complainant's
grandfather. Complainant was about 12 years at the time of the alleged
offence.
Sometime in 2009, the complainant who was in Form 1 was at
house number 2559 Cowdray Park, Bulawayo with her 8 year young brother was left
in the custody of appellant as their parents went away for a night. At
about 2000 hours appellant ordered them to go and sleep, which they did.
At about 2200 hours, accused went to the room where complainant and her brother
were sleeping. He was armed with a kitchen knife which he poked at
complainant's forehead at the same time threatening to kill her. He
removed his pair of trousers and at the sametime forcibly removed complainant's
pants and proceeded to have sexual intercourse with her without her
consent. He thereafter threatened to kill her if she reported the
incident.
On the 3rd January 2010 complainant's family
moved to house number 509 Nguboyenja, Bulawayo together with appellant.
Sometime in February 2010 complainant was asleep in the sitting room together
with other 4 children when appellant entered their room at around 2300
hours. She was awakened by appellant's insertion of his sexual organ in
hers. This caused her pain. When appellant noticed that she was
awake, he produced a knife and poked it on her forehead with a threat to kill
her. Appellant then continued to have sexual intercourse with her.
She did not tell anyone at the time. During the school holidays she went
to Kombo area Matabeleland South where she discovered that she had developed
genital warts. Upon her return to Bulawayo she reported her medical condition
to her aunt Beauty Ncube who examined her and subsequently took her to Mpilo
Hospital for treatment.
Appellant through his legal practitioner argued that the
trial court erred by convicting him for rape as complainant had initially
stated that she had been raped by one Polite. He also argued that
complainant had been found with a sexually transmitted infection yet he did not
have it.
It is on record that appellant is complainant's grandfather
and on all occasions when she was being asked about her perpetrator he was
present. It is also her evidence that appellant produced a knife which he
poked her face with on both occasions he was raping her. This, in my view
is enough threat to suppress her from coming out in the open. Therefore,
the two factors, namely appellant's presence when she was being questioned, his
position in the family and the threat of being killed effectively operated
against her freedom to express herself.
He has further argued that complainant was found with a
sexually transmitted infection which he did not have. The rape occurred
in February and she discovered her medical condition in April, surely it is
only reasonable that appellant had every opportunity to have himself treated
earlier than complainant, bearing in mind her age and her immaturity which must
have resulted in confusion with regards to what was happening to her.
The courts have adopted a cautious approach when dealing
with children's evidence, but such caution should be positive and creative, see
S v Musasa HH 52/02. Children's evidence should not be
viewed with a jaundice eye as if the first impression on their evidence is that
they are liars. These courts should always guard against the pitfalls of
children's testimonies. This caution is necessary because:
(i)
Children's memories are unreliable, particularly for detail;
(ii)
Children are egocentric and not likely to consider the effect of their
statements on others;
(iii) Children are
highly suggestible;
(iv) Children have
difficulty distinguishing fact from fantasy;
(v) Children make
false allegations particularly of sexual assault and
(vi) Children do not
understand the duty to tell the truth.
This is the approach advocated for in S v Sibanda S55/94. Taking
into account the above approach I find that complainant clearly passes the
above grid and as such she was a convincing and satisfactory witness.
In that regard the State proved
its case beyond reasonable doubt in the circumstances. Appellant was
sentenced to 20 years imprisonment of which 4 years was suspended on
condition of good behaviour.
Appellant is complainant's grandfather and was living in the same house with
her. He was visiting her at night armed with a knife and issued death
threats if she reported. Complainant being a 11 year old child under those
circumstances must have been terrified and must have felt that the world had
collapsed around her. This is not the kind of behaviour expected of a
parent let alone of appellant's age.
With the prevalence of these sexual offences in general and the fact that
appellant infected her with a sexually transmitted infection, appellant's
offence is by any standard aggravated. Infact in my view, by suspending
part of the sentence the trial court was very generous in its approach.
Deterrent sentences are called for and these courts should not give up fighting
against this scourge in our society. There is a need to shift the
approach from sympathising with criminals at the expense of paying lip-service
to the complainant who will be left with the trauma of having been carnally
known against their will under such violent circumstances.
The appeal against both conviction and sentence is dismissed.
Messrs Hara and partners,
appellant's legal practitioners
Criminal Division, Attorney General's Office, respondent's legal practitioners
Cheda
AJ agrees.....................................................
