DUGMORE CHIMUKOKO

versus

THE STATE

HIGH COURT OF ZIMBABWE

KARWI J and MUSAKWA JJ

HARARE, 3 March 2011

CRIMINAL APPEAL

T Moyo, for the appellant

S Ncube, for the respondent

KARWI J:  The appellant was arraigned before the Magistrates’ court at Bindura facing six counts as follows:

Count One:     Assault as defined in s 89 (1) (a) of the Criminal Law (Codification & Reform) Act [Cap 9:23]

Count Two:     Undermining Police Authority as defined in s 177 (a) (1) of the Criminal Law (Codification & Reform) Act [Cap 9:23]

Count Three:   Assaulting a Police Officer as defined in s 176 of the Criminal Law (Codification & Reform Act) [Cap 9:23]

Count Four:     Assault as defined in s 89 (1) (a) of the Criminal Law (Codification & Reform) Act [Cap 9:23]

Count Five:     Criminal insult as defined in s 95 (1) (a) of the Criminal Law (Codification and Reform) Act [Cap 9:23]

Count Six:       Contravening s 88(1) of the Posts and Telecommunications Act [Cap 21:01]

The appellant was duly convicted on the first four counts on his own plea of guilty. He was also convicted on count five after a fully contested trial. He was acquitted on count six.

The appellant was sentenced on the five counts he was convicted on as follows:

Count One:     $100 or in default of payment ten days in prison.

Count Two:    twelve months in prison, of which four months imprisonment is suspended for five years on the usual conditions of good behavior.

Count three:    Eighteen months in prison of which six months in prison are suspended for five years on the usual conditions of good behavior.

Count Four:     $50 or in default of payment fifty days in prison.

Count Five:    Twenty four months in prison of which ten months imprisonment is suspended for five years on the usual conditions of good behavior.

Having been aggrieved by the conviction in count five and by the sentences in all the five counts, he appealed against them.

The appellant’s grounds of appeal with regard to the conviction in count five are that the court a quo had misdirected itself in finding corroboration after the same court had found the alleged corroborative evidence to have been exaggerated. It was further argued that the same court had erred at law in proceeding to hear the matter in count five in the absence of the appellant’s counsel thereby denying him his right to legal representation. The appeal also raised the ground that the lower court had misdirected itself by dismissing as frivolous and vexatious the appellant’s application for referral of the matter to the Supreme Court in terms of s 24 of the Constitution of Zimbabwe.

The respondent has taken the position not to support the conviction in count five and is also not supporting the sentences imposed .I agree with that approach and find the concession by the respondent to be proper in the circumstances of this case.

It seems to me that the court a quo fell into error by accepting Takawira Maluku’s evidence as corroborative of the complainant s evidence after the same court had expressed reservations that Maluku’s evidence had been exaggerated. Besides, the fact is that the evidence of the complainant and that of Maluku is not the same with regards to what exactly took place in the complainant’s room. Their testimonies were different. In her evidence in chief the complainant said:

“On entering he said I was stupid and was being uncourtable. Since I was still standing and naked, in my pants only the accused pulled down his trousers. He was holding a condom which he put on his erect penis. Whilst he was doing that I grabbed a blanket, wrapped myself and screamed for help. On inquiry whether he intended to rape, he said no he wouldn’t have to do that but I would remove my pants”.

The evidence of Takawira Maluku was as follows:

“She told me that the accused just opened the door and entered the room as the door could not lock from inside. She said that upon his entry, the accused had removed a condom which he put on his penis, he pushed her onto the bed telling her he intended to sleep with her.”

In order to assist in determining the probative value placed on evidence in a sexual matter our courts have developed fundamental guidelines. A two stage approach is made into the complaint and this was clearly laid down in S v Banana, 2000 (1) ZLR at 616 as follows:

“Evidence that a complainant in an alleged sexual offence made a complaint soon after its occurrence, and the terms of the complaint, are admissible to show consistence of the complainant’s evidence and the absence of consent. The complaint serves to rebut any suspicion that the complainant has fabricated the allegation.”

The underlying consideration is that the court should avoid false incrimination by looking for consistence between the contemporaneous report of the act of sexual assault and the evidence given in court. It would be unavoidable to infer that the complainant has fabricated her complaint, if any inconsistences are found between the evidence given in court and the terms of the initial complaint. This seems to be the case here. I agree with the appellant’s counsel that this case was fabricated and over dramatised as it bordered on factional fighting within the Mashonaland Central’s Zanu- PF Youth Executive. Furthermore, the facts as narrated by the complainant seem to be unbelievable and inconceivable. How could a woman who finds a man bugging into her room, wearing a condom able to ask if the man wanted to rape her?

With regards the issue raised by the appellant that he was denied legal representation, the law is very clear. In Wheeler & Ors v Attorney-General 1998 (2) ZLR 304 (S), the Supreme Court had occasion to underline that:

“It is in exceptional circumstances that a court would be justified in refusing a postponement of the trial to an accused who wanted to engage a legal representative at his own expense; or whose legal representative was absent for good reasons”

It is my view that the court a quo’s refusal to postpone the trial to allow another lawyer from the same firm as appellant’s lawyer, in order for him to peruse the record of proceedings and take over the matter, constituted gross improper exercise of its discretion. As a result the conviction on count five cannot stand. It is therefore set aside. The sentence on this count therefore falls away. The matter in count five is referred back to the lower court for a trial de novo before a different magistrate. The appellant should be allowed to be represented, at his own expense, if he so chooses.

I now proceed to deal with the appeal against the sentences imposed in counts one to four. It is my considered view that the learned magistrate misdirected himself in the approach he adopted in sentencing the appellant in the multiplicity of counts. The general guideline in sentencing an accused person who is convicted of a multiplicity of charges was set out by CHIDYAUSIKU J (as he then was) in Taruvinga v State HH 37-89 as follows:

“There is no fixed rule of law which requires a judicial officer to treat a multiplicity of counts as one for purposes of sentence but it is the established practice that before a judicial officer can treat those counts as one for purposes of sentence, there has to be some close affinity between those counts in the manner or time in which the offences were committed.  The same point was emphasized in S v Nyathi HB 60/03 when the court stated that:

‘Where multiple counts are closely connected or similar in point of time, nature, seriousness or otherwise, treating them together is a useful way of ensuring that the punishment is not duplicated or its cumulative effect is not too harsh. Where counts are taken as together, however, the global sentence should be one which the court considers appropriate in the circumstances’”.

It is my view that the cumulative effect of the sentences imposed in this case was too harsh and excessive. This amounts to a misdirection on the part of the court a quo. The proper approach should have been to take counts one and two together for purposes of sentence. The reason for this is that counts one and two were committed at the same time and place while the remainder of the counts were committed not far in between each other but were committed in different places. Count three is considered a very serious one in that the appellant assaulted a police officer who was carrying out his lawful duties and the assault took place in the full view of members of the public. That count will be treated separately. As a result all the sentences imposed in counts one to four are set aside and substituted by the following sentences.

“1.       Counts one and two:   $250-00 or in default of payment twenty-five days in prison.

 2.        Count three                 $500-00 or in default of payment, fifty days in prison.

 3.        Count four                  $  50-00 or in default of payment five days in prison”.

Mutamangira & Associates, appellant’s legal practitioners

Attorney General’s Office, respondent’s legal practitioners