The
appellant was, on 19 January 2015, convicted of rape in contravention
of section 65(1)(a) of the Criminal Law Code [Chapter 9:23] after a
full trial….,.
He
was dissatisfied with the conviction only and noted an appeal to this
court on the grounds, inter
alia,
that the complainant was not a credible witness; that there were
serious discrepancies between the State Outline and the evidence led
by the State; and that the complainant had gone to put up at the
appellant's house freely and voluntarily and that for that reason
sexual intercourse was consensual.
It
is an appeal which is strongly contested by the State on the basis
that there was no misdirection whatsoever on the part of the court a
quo
in its findings, and, as such, the appellant was properly convicted.
Counsel
for
the appellant submitted, in the main, that the appellant and the
complainant were once lovers and that it is not clear when the
relationship was terminated. The court should have taken that into
account in determining whether sexual intercourse was consensual or
not.
The
facts are generally common cause. The appellant is a member of the
SDA church while the complainant is a fellow church member and a
former girlfriend of his. On 15 June 2013 they, along with other
church members, had gone for a church crusade at Mawabeni in
Esigodini and only returned late at night. With the driver of the
minibus they were using having allegedly run out of fuel and unable
to deliver them to their respective homes, the complainant and her
sister went to sleep at the appellant's house in Mzilikazi fearing
having to find their way home as danger is always lurking on the way
at night.
At
the appellant's house, the complainant was severely assaulted by
the appellant and sustained serious injuries which were still visible
when she appeared to testify in court on 20 August 2013 - more than
two months later. Hence, the magistrate was able to observe that “at
the time she testified, complainant's eye was visibly still
swollen. She had a black eye…,.”
She
also had sexual intercourse with the appellant which she says was
rape but the appellant says it was consensual. The issue which the
court had to decide was whether intercourse was consensual or not.
The
complainant narrated what had transpired on the night in question at
the appellant's house. She said they had arrived in Bulawayo at
around 2100 hours in a hired minibus which was supposed to deliver
them to their homes but the driver could not do so as he said he had
run out of fuel. Not even an offer to pay him more money could
persuade him to deliver them to their homes. She was in the company
of other members of the church including the appellant and one Mathe.
When
she suggested that they would walk home other members of the church
discouraged her as walking at night was dangerous. They suggested,
instead, that herself, her young sister and Mathe should seek refuge
at the appellant's house in Mzilikazi, Bulawayo. She reluctantly
compiled.
At
that house, the appellant and Mathe were cooking while watching
soccer. When she wanted to retire to bed with her young sister the
appellant requested to talk to her in private. As Mathe occupied the
sitting room while watching football they treated to the appellant's
bedroom to talk. The appellant was on bended knees when he asked her
for reconciliation because she had, some weeks earlier, terminated
their relationship after she had found nude pictures of a woman in
his cellphone. That night, of course, she was to be another victim of
nudity when the appellant took pictures of her private parts after
forcibly having sexual intercourse with her.
The
complainant says she refused to reconcile with the appellant making
it clear that she was no longer interested in him and did not love
him anymore. The appellant forcibly kissed her. When she received a
call on her cellphone the appellant got angry and started assaulting
her with open hands asking about the person she was talking to. He
continued assaulting her and also strangled her. When she screamed he
put a teddy bear in her mouth and increased the volume of music
playing on his laptop connected to speakers.
While
still assaulting her he ordered her to lie on the bed and remove her
clothes. He then removed his clothes telling her that he wanted to
find out if she still had feelings for him. Although she told him she
no longer had feelings for him he insisted that he wanted to taste a
prostitute from the Seventh Day Adventist Church. He forced open her
legs cursing that she did not know who he was. He then forced himself
on her. After the act he sarcastically asked her if she was feeling
any pain and whether he was not better than her boyfriends. He
brought water to soothe her and food to eat but she refused to
partake in any of that. When she dressed up and tried to leave the
bedroom he told her he wanted to taste her for the last time. He
tried to force her to hold his penis and insert it in her vagina and
when she refused he did it himself and had sexual intercourse with
her for the second time without her consent.
After
the second act he interrogated her demanding to know if she still had
no feelings for him insisting that she should look him straight in
the eye. When she did not, he twisted her neck demanding to be looked
in the face. The ordeal lasted more than two hours. At the end of
what must have been a harrowing experience the appellant is said to
have taken his camera and photographed her private parts. He
threatened her with disappearance or that he would cut her into
pieces.
The
appellant's version was that it is the complainant who seduced him
and lured him into the bedroom where they had consensual sexual
intercourse. It was after the act that he found her talking on the
phone. He interrogated her until she confessed to having affairs with
two other men. He then assaulted her and promptly terminated their
relationship.
In
deciding which version to accept, the court a
quo
took into account the following, namely;
(a)
That the complainant had been forced by circumstances to go to the
appellant's home. It was late at night; the minibus driver refused
to take them home and when they offered to walk other members
dissuaded them because of the risk. The appellant and Mathe were
trusted church members and the appellant offered shelter.
(b)
During the night, the complainant was heard screaming (initially
denied by the appellant but later admitted and explained as groans of
sexual pleasure).
(c)
There was high volume of music either from speakers connected to a
laptop or from Happy Valley Night Club across the road, depending on
whose version you work with, which muffled the screams.
(d)
The complainant was severely assaulted by the appellant who inflicted
serious and visible injuries.
(e)
The complainant reported the rape immediately to her 17 years old
young sister, a very impressive witness who charmed the court by her
truthfulness and honesty.
All
the above factors, which were generally common cause, vitiated
consent.
One
should add that after her ordeal the complainant left the appellant's
bedroom leaving her clothes behind and did not put up with him for
the night. She went and shared a bed with her young sister -
something inconsistent with the picture of a seducer who was having a
nice time with her boyfriend, which the appellant sought to portray.
Even
the text message which she later sent to the appellant, vague as it
was, was adequately explained as the fruit of despicable pressure
from other church members, who should in fact be hanging their heads
in shame for appearing to condone what was an unmitigated abuse of a
19 year old girl by a man 9 years her senior who simply could not
accept rejection and thought he had a God-given right to do as he
pleased on a defenceless and vulnerable church member. He took undue
advantage of his religious association with the girl to turn her into
a sex slave in the most ungodly manner.
In
our view, the court a
quo
meticulously dealt with the evidence and correctly accepted the State
case and rejected the version of the unrepentant appellant who, as
late as then, still did not see anything wrong with battering a girl
and having sex with her at the same time. It was typical behavior of
a sexual pervert, a treacherous sadist who was deriving pleasure in
torturing a young girl for warped sexual fulfillment or to force her
to have feelings for him.
There
was no misdirection whatsoever and this appeal is spectacular by its
lack of merit. It is accordingly dismissed.
