Judgment No. HB 55/15
Case No. HCA 646/13
IN THE HIGH COURT OF ZIMBABWE
MUTEMA & MOYO JJ
BULAWAYO 2 MARCH & 19 MARCH 2015
Appellant in person
Miss S. Ndlovu for the respondent
MOYO J: The appellant launched an appeal against conviction and sentence in this matter in person.
The appellant was convicted of rape as defined in section 65 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The allegations against the appellant were that he raped his daughter aged 7 years when he was left with her whilst his (appellant’s) mother had gone to their rural home. Appellant slept with the complainant in the sitting room wherein he raped her.
The appellant was convicted after a full trial and was sentenced to 16 years imprisonment with 5 years imprisonment suspended on the usual conditions. This left him with 11 years imprisonment effective. Dissatisfied with both conviction and sentence the appellant approached this court in person. In his notice of appeal he raises the following issues:-
- that the complainant as a young child had been taught what to say
- that his mother framed him so as to punish him for his bad behaviour generally
- the doctor’s evidence does not support the state case
- that his uncle found him sleeping with the child and did not suspect anything unusual
I have summarised the points raised in the notice of appeal as I could not quote them due to bad English and numerous grammatical errors.
The complainant told the court that his father returned from the shops and raped her. Complainant gave a credible story and was not shaken under cross-examination. In fact at the beginning of the cross-examination when the appellant greeted the complainant she started crying after he had asked her if she hates him. The case had to be adjourned to the following day.
The grandmother confirmed that she left the complainant with appellant and an uncle when she went to the rural areas and that when she came back, when they were bathing the complainant, said to her “grandmother look at my pant, how it looks”. She then enquired as to whether the complainant had been raped or played with the boys, she said she had not done so. Complainant kept on lifting her clothes and looking at her private parts, she said to her grandmother “grandmother its daddy who injured me”. The grandmother asked her how she had been injured and she started crying, she then went and made a report with the police.
It is important to note at this juncture that complainant told her grandmother about the rape, the same date the grandmother arrived from the rural areas. Accused’s uncle, simply confirmed that the previous day, that is the day prior to the grandmother’s arrival, which was on Friday she found the complainant sleeping with the appellant on the floor and not on the sofa where she would normally be. The uncle also confirmed that both appellant’s mother and the complainant loved him (appellant) so much that there could be no question of them lying against him. It is important to note that in his defence outline the appellant does not allude to any bad blood or grudges between him and his mother that could result in a fabrication of the allegations he faced. In fact also in his defence outline he tells the court that the complainant slept on the sofa and he slept on the floor. He did not challenge the uncle’s testimony that he in fact found the complainant sleeping with appellant on the floor the night before the arrival of the grandmother. Neither did the appellant challenge the uncle’s averment that his (appellant’s) mother and the complainant loved him so much they could not lie against him.
Under cross-examination the appellant admitted that upon being confronted by his mother he admitted to the rape allegations. We then move on to deal with the law as it relates to the issues raised in the notice of appeal.
- The evidence of the complainant in this matter who was a girl aged 7 years
The appellant contends that the complainant as a child could have been taught what to say. Not only does the record lack any pointer towards this but the law relating to the evidence of children is very clear. The complainant in this case was in fact credible, she clearly told the court what had transpired and nothing much arose under cross-examination. Young children do not fantasize about being raped or other unusual horrific experiences. Refer to the case of Musasa v S HH-52-02. We are of the view that the complainant is a 7 year old girl who could not concoct a rape story that would stand, this is especially in view of her credibility.
- Medical evidence in rape cases
The appellant contends that the medical evidence did not prove that penetration had been effected. This in our view is neither here nor there. The doctor who conducted the medical examination on the complainant and prepared a medical report was called and he told the court how he concluded that there was no medical evidence of penetration that was visible but that it was still possible that penetration had taken place. He stated that there are instances where sexual intercourse takes place but the hymen remains intact. With regard to the issue of penetration in rape cases it is important to note the following: In the case of S v Torongo SC-206-96 K JA at page 7 of the cyclostyled judgment had this to say:-
“As far as the law is concerned placing the male organ at the orifice of the female organ, resulting in the slightest penetration constitutes rape.”
In the case of S v Sabawu 1999 (2) ZLR 314 (H) at 316, CJ stated thus:-
“It is trite position that for the purposes of the crime of rape, penetration is effected if the male organ is in the slightest degree within the female body. It is not necessary to prove that the hymen was raptured …”
In the case before us the complainant said that the appellant injured her, she felt pain and the doctor also confirmed that the complainant complained of genital pain. We conclude therefore with the support of the afore-named cases on what constitutes penetration, that indeed, the appellant raped the complainant as per the provisions of the law.
On the issue of the mother framing him, we can only throw away that assertion, as clearly he did not substantiate this point, neither was it ventilated during the trial. The mother was called and she was never asked about that issue by the appellant. Also, his uncle testified that the appellant’s mother and the complainant loved him so much according to his knowledge that they would not frame him in the manner he was alleging. In our view this is just an after-thought, the appellant is clutching at straws in a bid to extricate himself from the consequences of his criminal conduct. We also wish to point out that the uncle gave his evidence well and was never challenged at all by appellant.
On the issue of sentencing, it is our considered view that in such cases an effective sentence of 11 years imprisonment meets the justice of the case.
In the case of S v Nyamimba 2002 (2) ZLR 607 it was held that a rape perpetrated on a young girl should attract a sentence of at least 10 to 12 years imprisonment. Also in the case of S v Makorisha HH-130-04 it was stated thus:
“Given the dangers to which a rape victim is exposed, a rape perpetrated on a young girl should attract a sentence of at least 10 to 15 years imprisonment.”
We accordingly find no fault in the sentence imposed by the trial court. In any event sentencing is the prerogative of the trial court and appeal courts would intervene sparingly with such prerogative only in those cases where the trial court would clearly have misdirected itself.
The appeal fails in its entirety for the afore-stated reasons.
We accordingly dismiss the appeal in its entirety.
Mutema J ……………………………… I agree
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