MAVANGIRA J: The
appellant was convicted on a charge of rape by the Regional Magistrate sitting
at Harare. The allegation against him was that on 23 January 2008 at No. 24
Coronation Avenue, Greendale, Harare, he unlawfully had sexual intercourse with
the complainant without her consent. Upon conviction he was sentenced to 17
years imprisonment of which 4 years was conditionally suspended. He now appeals
against both conviction and sentence.
The Appellant
raised four grounds of appeal. The first is that the learned trial magistrate
erred in convicting the appellant on the uncorroborated suspect evidence of the
complainant. The second is that the trial magistrate erred in convicting the
appellant in the face of clear and uncontroverted evidence from witnesses who
were close to both the complainant and the appellant that the two were in love.
The third is that the trial magistrate erred in that he failed to seriously
take into account that the rape was reported not by the complainant but by one
of her sisters and that the report was not timeously made thus casting doubt on
the credibility of the complainant. The fourth is that the magistrate erred in
believing the State's witnesses' evidence as opposed to that of the defence
witnesses. With regard to the appeal against sentence the ground of appeal
raised is that the sentence imposed is manifestly excessive in the
circumstances, especially taking into account that the appellant is a first
offender and that apart from his immediate family he is also looking after the
complainant and her minor child. However during the hearing of the appeal Mr Nyikadzino withdrew the appeal against
sentence.
The appellant
does not deny having sexual intercourse with the complainant. He however claims
that it was consensual between him and the complainant. To the contrary the
complainant's evidence was that she knew the appellant as a prophet or healer
who used to assist her in respect of an ailment that she suffered from. In her
words, she would "lose power, fall down and become unconscious". She said that
those who would be around would later tell her that she would also "make
utterances as someone who has lost her mind". Her sister, with whom she resided
and who worked at the same premises as the appellant referred her to the
appellant for help. On 23 January 2008 the appellant called her to his house to
collect "holy water".
When she
arrived, the appellant instructed her to enter into his single room residence.
She sat on a chair. The appellant who followed her inside closed the door
behind him. He then told her that he wanted to have sexual intercourse with her
as the Holy Spirit had told him that he was to take her as a wife. The
complainant said that she refused to be his wife since he was married and she
had only approached him for assistance in connection with her illness. The
appellant insisted that he would have sexual intercourse with her and then see
what she would do about it. He then felled her to the floor, removed her pair
of trousers and her pants and raped her. She tried to fight him off but he
overpowered her. She tried to shout but the appellant closed her mouth or gagged
her. Although the appellant used to stay with many people, on that day she did
not see anyone else around. After raping her, the appellant gave the "holy
water" and warned her not to tell anyone lest she dies or the severity of her
illness would increase. The complainant refused to accept the holy water and
went back home. The complainant was thus emphatic that the intercourse was not
consensual.
The complainant
also explained that she became afraid after the appellant threatened here with
aggravation of her illness or death as she had been ill for many years and she
feared falling ill again. She thus kept quiet and made no report about the
rape. Under cross examination she confirmed that she believed that the appellant
had powers to cause one to die and or to become more ill. From a reading of her
evidence this belief was particularly confirmed after appellant's visit to her
rural home albeit the said visit was made after the rape. It appears that after
the visit the family believed that the appellant was responsible or had caused
the misfortune that apparently befell the complainant's mother.
It is common
cause that the complainant conceived as a result of the rape and later gave
birth to a child.
The
complainant's evidence is attacked on the basis, amongst others that there was
no evidence of screams or soiled garments to corroborate her story that the
intercourse was not consensual. It has been submitted in the appellant's heads
of argument that in the absence of such evidence the trial magistrate wrongly
convicted the appellant.
I am not aware
of any authority and none has been cited, to the effect that in the absence of
evidence of screams or soiled garments, there can be no conviction for rape.
The trial magistrate had the long established advantage that all triers of fact
have. He had the advantage of seeing and hearing the witnesses and assessing
their demeanour and credibility. He believed the complainant who said that she
tried to scream but the appellant gagged her. No valid basis has been laid to
justify interference in this respect by this court, sitting as an appeal court.
The
complainant's evidence or reliability thereof is also attacked on the basis
that the report was not made by the complainant herself but by her sister and
that the report was in any event not timeously made. No convincing reason has
been placed before us as to why the learned trial magistrate's assessment on
this aspect ought also to be found to be erroneous. The relationship between
the appellant and the complainant was that of faith healer and patient. She
believed that he possessed the power to assist or help her and for a period of two
months before the commission of the offence she was going to him for such
assistance. She genuinely believed his threats that he could cause her death or
aggravate her illness. The nature of the illness that caused her to seek the
appellant's help, and this has been described earlier, is also pertinent,
coupled with the fact that she had suffered from the ailment for many years.
Contrary to Mr Nyikadzino's
submission, her level of education has nothing to do with a belief of this
nature. It cannot, in my view, be said that because she was educated up to "O"
level, she could not have entertained such beliefs. One cannot help but also
note that her own family including her parents appear to be steeped in this
kind of belief as well. It was her sister who referred her to the appellant.
When her parents became aware of her pregnancy and the circumstances in which
it was conceived, their immediate concern was not about the making of a report
to the authorities. Their immediate concern was for their daughter's safety,
preferring that there be no confrontation with the appellant. The complainant's
sister, Wynet, also told the court that their parents feared the appellant as
he was a prophet. A perusal of the record also shows that the appellant himself
claimed to have healing power. It is common cause that he gave himself out to
be a person endowed with healing powers.
It is important
for the court not to take an arm chair approach in the determination of a
matter before it. In casu it appears
that that would be the effect of acceding to the submissions by both the
appellant's and the respondent's legal practitioners in their written
submissions. Whilst Mr Nyikadzino
persisted in his defence of the appeal in his oral submissions, Mrs Fero for the respondent withdrew her
earlier written concession that the conviction cannot be supported by the
evidence on the record. She reckoned that on a holistic approach to the matter,
regard being particularly had to the healer-patient relationship between the
appellant and the respondent, it was clear from the evidence on the record that
the complainant had not consented to the act.
The trial
magistrate's assessment of the matter is supported by the evidence on the
record. The reasons for the late report as well as the fact that it was not
made by the complainant herself are clearly stated and are cogent. Therefore
the trial court did not err.
Regarding the
attack that the magistrate erred in convicting in the face of clear and
uncontroverted evidence that the two were in a love relationship; firstly even
if there was such a relationship between them, which relationship the
complainant denied and which the trial court also found did not exist, that in
itself would not be evidence of consensual intercourse. Secondly the learned
trial magistrate adequately and clearly gave reasons for dismissing such a
claim at pages (ix) to (xi) of his judgement and it is not intended to repeat
the same herein. Suffice to reiterate that the importance of the nature of the
relationship between the appellant and the complainant, that of healer and
patient as well as the belief by the complainant in the appellant's powers over
her life and health cannot be overemphasised.
The fourth
ground of attack, being that the trial magistrate erred in disbelieving the
defence witnesses' evidence yet believing that of the State witnesses has
already been dealt with in a statement made earlier in this judgement. The
advantage of the trial court which sees and hears witnesses and is thus in a
better position than the appeal court to assess demeanour, credibility and reliability
of evidence is an issue beyond debate. Necessarily, an appeal court is loathe,
and in fact is justified only in clearly stipulated circumstances, to interfere
with such assessment by the trial court. A perusal of the evidence on record does not
reveal any error in the magistrate's assessment of the evidence and thus his
final determination of the matter.
For these
reasons the appeal against conviction is without merit. As stated earlier, the
appeal against sentence was withdrawn by the appellant's legal practitioners
during the hearing of the appeal.
In
the result the appeal against conviction is hereby dismissed.
HUNGWE
J: agrees
Nyikadzino,
Koworera & Associates, appellant's legal practitioners
Attorney General's Office, respondent's legal
practitioners
