The
accused was charged with rape. Following a trial in which a total of
seven witnesses testified the accused was found not guilty.
Dissatisfied
with the acquittal, the complainant's mother addressed a letter of
complaint to the Area Prosecutor, Masvingo. Whilst noting that there
were no grounds for appeal, the Area Prosecutor, in a letter
addressed to the trial magistrate, suggested that the proceedings be
submitted for review. The trial magistrate agreed on this course of
action and addressed a minute to the Registrar. In that minute the
trial magistrate cited S
v Prandini
HH94-10.
As
was correctly noted by KUDYA J in S
v Prandini
HH94-10 the High Court has wide powers of review. This finds
expression in section 26 of the High Court Act [Chapter
7:06]
which provides that -
“Subject
to this Act and any other law, the High Court shall have power,
jurisdiction and authority to review all proceedings and decisions of
all inferior courts of justice, tribunals and administrative
authorities within Zimbabwe.”
The
grounds for review are to be found in section 27 of the High Court
Act [Chapter
7:06]
which provides that -
“(1)
Subject to this Act and any other law, the grounds on which any
proceedings or decision may be brought on review before the High
Court shall be -
(a)
Absence of jurisdiction on the part of the court, tribunal or
authority concerned;
(b)
Interest in the cause, bias, malice or corruption on the part of the
person presiding over the court or tribunal concerned or on the part
of the authority concerned, as the case may be;
(c)
Gross irregularity in the proceedings or the decision.
(2)
Nothing in subsection (1) shall affect any other law relating to the
review of proceedings or decisions of inferior courts, tribunals or
authorities.”
In
addition to the above provision, it must be viewed in conjunction
with section 29(1) of the High Court Act [Chapter
7:06]
which provides that -
“(1)
For the purpose of reviewing any criminal proceedings of an inferior
court or tribunal, the High Court may exercise any one or more of the
following powers -
(a)
Direct that any part of the evidence which was taken down in
shorthand or recorded by mechanical means be transcribed and that the
transcription be forwarded to the registrar of the High Court;
(b)
Hear any evidence in connection with the proceedings, and, for that
purpose, may cause any person to be summoned to appear and give
evidence or produce any document or article;
(c)
Where the proceedings are not being reviewed at the instance of the
convicted person, direct that any question of law or fact arising
from the proceedings be argued before the High Court by the
Attorney-General or his deputy and a legal practitioner appointed by
the High Court.”
The
wide powers of review provided in section 26 of the High Court Act
[Chapter
7:06]
may be exercised any time and section 29(4) of the High Court Act
[Chapter
7:06]
provides that -
“Subject
to rules of court, the powers conferred by subsections (1) and (2)
may be exercised whenever it comes to the notice of the High Court or
a judge of the High Court that any criminal proceedings of any
inferior court or tribunal are not in accordance with real and
substantial justice, notwithstanding that such proceedings are not
the subject of an application to the High Court and have not been
submitted to the High Court or the judge for review.”
The
charge that was preferred against the accused person alleged that “on
a date to the prosecutor unknown but during 2004 and at village
Homera, Chief Charumbira, Masvingo, Joseph Murashi unlawfully and
intentionally had sexual intercourse on diverse occasions with Tariro
Fambirai, a girl who was incapable in (sic)
law of consenting to sexual intercourse.”
It
is common cause that the accused was a cattle herder at a nearby
homestead. From his defence and the evidence that emerged he arrived
in the village in 2005 having previously resided in Chivi. He resided
alone. It appears he was engaged to herd the complainant's
grandfather's cattle.
The
complainant was born on 1 June 2003, which meant in 2004 she was one
year old. She used to reside with her grandmother in the village. She
subsequently relocated to Harare, most likely to attend school where
her mother was a teacher. The offence was only reported in 2013
following a discussion the complainant had with her aunt and this
triggered memories of her sexual abuse. The complainant also wrote a
note to her mother in which she explained the abuse. She is said to
have placed the note in her homework book for the mother's
attention.
During
the trial, the complainant explained how she was raped. A younger
aunt with whom the complainant resided in the village also testified.
She moved to the village in 2007. She testified that there were
occasions the complainant would request for guavas and she would go
to the accused's residence. She never observed any abnormalities on
the complainant when she returned home.
The
trial court noted the unreliability of the complainant's testimony.
This was viewed in the context of the time it was alleged the
offences took place, her age at the time, and the delay in making a
report.
The
complainant's aunt, Evelyn Mutakwa, testified that the complainant
reported the matter to her during the first term holiday in 2013. On
the other hand, the complainant's mother testified that a letter
was written to her in June 2013. She is adamant that there was no
delay in actioning the report.
What
is apparent is that the report made in Masvingo triggered the
charges. This is evidenced by the venue of trial which is Masvingo.
The
complaints raised by the complainant's mother do not relate to the
manner in which the proceedings were conducted. They relate to the
trial court's findings of fact and conclusions arising from those
facts. Essentially, the complainant's mother has always wanted the
acquittal to be taken on appeal. It is unfortunate that the Area
Prosecutor and trial magistrate then sought a review of the
proceedings where no such grounds have been articulated.
The
issue of whether or not the matter is appealable should be addressed
to the Prosecutor General. This is irrespective of the conclusion
reached by the Area Prosecutor. Ideally, the Area Prosecutor should
have articulated his reasons for not taking the matter on appeal for
the benefit of the complainant's mother. Alternatively, the Area
Prosecutor could have addressed the matter to the Director of Public
Prosecutions. It does not necessarily follow that a final decision
not to prosecute an appeal lies with the Area Prosecutor.
In
S
v Prandini
HH94-10 KUDYA J noted that the letter of complaint written on behalf
of the complainant did not set out the grounds of review. It did not
attack the findings of the trial court. There was a vague allegation
of bias. KUDYA J concluded that the proceedings were in accordance
with both procedural and substantive law.
The
Prosecutor General can appeal against a decision of the Magistrates
Court on a point of law or against acquittal of an accused arising
from a view of facts which cannot reasonably be entertained. In this
respect see section 61 of the Magistrates Court Act [Chapter
7.10].
In
the result, there are no cogent grounds on which the proceedings are
reviewable.
