HIGH COURT OF ZIMBABWE
BERE, TAGU JJ
HARARE, 13 February 2014
G J Gumbo, for the appellant
I Muchini, for the respondent
TAGU J: This is an appeal against conviction only. The appellant was convicted by a regional magistrate at Bindura on a charge of rape in contravention of s 65 of the Criminal Law (Codification and Reform) Act [Cap 9:23]. The allegations are that the appellant raped a 33 year old complainant in a field on 28 February 2013. The appellant was sentenced to 10 years imprisonment of which 3 years imprisonment was suspended for 5 years on the usual condition of good behaviour.
The appellant is attacking the grounds upon which he was convicted. His argument is that the complainant was in love with the accused. The complainant was also in love with one Mandovha who is said to be a star witness in this case. It was the appellant’s argument that this was a case of a love triangle that went bad and complainant wanted to fix him.
The prosecution does not support the conviction in this case. The state counsel Mr I. Muchini sent a notice to the Registrar of the High Court in terms of s 35 of the High Court Act [Cap 7:06] to the effect that the Prosecutor General does not support the conviction.
The prosecution agrees with the appellant that the manner, facts and circumstances of the commission of this offence, the report and arrest of appellant leaves one with some doubt if indeed a Rape was committed or not. In particular, despite having been told of the identity of the attacker she did not make the report to the police or her husband, a person she would reasonably be expected to make a report at the earliest possible opportunity.
In her evidence the appellant was portrayed as a stranger. But in the light of appellant’s defence one is left with the following questions unanswered. If complainant knew appellant as someone who sold eggs at her work place every day some years back why did she not just tell Mandovha that she knew the attacker but did not know his names? If on the other hand Mandovha correctly identified the appellant as the rapist on the day of the rape why did it take several days before the report was made? Why did Mandovha who is said to be a total stranger undertook to investigate the matter himself without reporting to the police since he said he was a member of the neighbourhood watch committee?
We therefore agree that this is one case in which doubt still remains whether appellant committed the offence or it was a ‘love triangle’ gone bad as alleged by the appellant. We doubt if the presence of Mandovha at the scene of rape was just a coincidence.
We agree with the prosecution that it is trite that the cautionary rule in sexual offences is no longer part of our law but as noted in S vBanana 2000 (1) ZLR 607, each case has to be treated on its own facts. The onus of the state in all criminal cases still remains to prove beyond a reasonable doubt the guilty of an accused.
Even if we may be wrong, which we doubt we are, we are fortified in our belief by the dicta of the court in L v V 2003 (1) SA 16 (SCA) where it was said-
“In my view, there is simply not enough evidence to prove the appellant’s guilty beyond a reasonable doubt, the result will of course be a grave injustice if the appellant in fact raped the complainant. But that does not justify the commission of an even more serious injustice of convicting a person without his guilty having been established beyond reasonable doubt”
It is for the above reasons that we believe the concession by the state was well made. The appeal succeeds and the appellant is found not guilty and acquitted.
Gumbo and Associates, appellant’s legal practitioners
Prosecutor General’s Office, respondent’s legal practitioners
BERE J agrees…………………………………………………