TENDAI JAMES MUKUTE

VERSUS

THE STATE

IN THE HIGH COURT OF ZIMBABWE

MOYO J

BULAWAYO 25 NOVEMBER 2013 AND 23 JANUARY 2014

Mr T. Nyengera for applicant                               

Mr W. Mabhaudi for the respondent

Bail Application

MOYO J:        This is an application for bail pending appeal.

The appellant was convicted of rape in contravention of section 65 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].  He was sentenced to 15 years imprisonment of which 3 years imprisonment was suspended on the usual conditions.

Appellant avers that he has prospects of success, on appeal in that:

(1)        the court a quo grossly misdirected itself in convicting the appellant without applying the law regarding the manner in which the report of rape was made.  He avers that it was not made freely and voluntarily.

(2)        the court a quo erred in convicting the appellant without applying the law on the causes of the delay in making the report of rape.  He avers that the report was only made after an interrogation by the victim’s parents concerning her pregnancy.

            The complainant alleges that she was raped sometime in July and the beginning of August 2013.  The complainant is a 13 year old minor.  She said she did not tell anyone about the alleged rape.  She said that the offence came to light when her mother and aunt noticed changes on her and that she was no longer active.  Complainant said she did not report to her mother as appellant had told her not to tell anybody.  The aunt who discovered the offence stated that she noticed through observation that complainant was not happy and she had bodily changes on her, she became suspicious and decided to ask complainant about it.  At the same time she consulted complainant’s mother.

            She said she asked complainant if she was alright and complainant said No.  She further asked complainant what was the matter with her and complainant then mentioned appellant by his nickname of “Dot com.”

            This witness said it was on 30 August 2013 at 0830am when complainant told her about the alleged rape.  She further explained that the appellant had sexual intercourse with her without her consent.  The trial magistrate dealt with the issues surrounding the making of the report.  It is common cause that the complainant and the appellant knew each other well prior to the commission of the offence and that they were close and complainant referred to the appellant as “Dot com.”  Appellant also referred to the complainant as “Petty” in the proceedings. The complaint itself was made on the 30^th of August 2013, a few weeks or at most about a month after the alleged rape.  There is seemingly nothing that turns on a period of one month warranting that the complaint be thrown out.  Again, on the issue of the circumstances under which it was made, nothing turns on that as the complainant’s aunt upon observing that something was wrong with the complainant, simply asked her if she was OK and complainant said she wasn’t, she then asked her what was wrong and she mentioned “Dot com” referring to the appellant.  There is nothing that can be said to be interrogative, suggestive or probing in nature to warrant a finding that such a complaint was not made freely and voluntarily.

            In such cases the court has to adopt a common sense approach and be satisfied that the evidence of the complainant is the truth.  All that is required is for the court to be satisfied that the complainant is a credible and reliable witness.  Refer to the case of State vs Banana 2000(1) ZLR 607 (SC).

            I accordingly find that there is nothing anomalous with the circumstances in which the complaint was made and I accordingly find that there are no prospects of success on appeal.  The application for bail pending appeal is accordingly dismissed.

Mcijo, Dube and partnersappellant’s legal practitioners

Criminal Division, Attorney General’s Office, respondent’s legal practitioners