REPORTABLE (20)
Judgment
No. SC 23/06
Criminal Application
No. 135/06
GODFREY NZIRA
v THE STATE
SUPREME COURT OF
ZIMBABWE
HARARE, JUNE 6 &
29, 2006
Before:
CHEDA JA, In Chambers, in terms of r 20(5) of the
Supreme Court Rules
This is an
application for leave to note an appeal out of time.
The applicant was
convicted of seven counts of rape and one of indecent assault at the
magistrates court. He was sentenced
to a total of forty-two
years imprisonment with labour, of which ten years were suspended
on certain conditions.
The applicant
appealed to the High Court. The High Court upheld the conviction
but reduced the sentence to one of thirty years,
of which ten years
were suspended on the same conditions. He now wishes to appeal
against the judgment of the High Court against
both conviction and
sentence.
The applicants
legal practitioners have filed affidavits to explain why the appeal
was not filed within the required time limits.
Having perused their
explanations, I accept their reasons for the delay.
However, the other
important factor to be taken into consideration by the court or Judge
in such an application is whether there
are any prospects of success.
The applicant is
forty-two years old. He is the head of a religious organisation and
was also head of a shrine, to which people
went to worship and
consult him for healing. The two complainants were admitted at his
shrine for that purpose. They lived there
with many other people
under his command and control. One was raped four times and the
other was raped three times.
Evidence led at the
trial, which was accepted by both the magistrates court and the
High Court on appeal, portrays the applicant
as a strong leader of
his church, who was feared by all the inmates of the shrine. He was
also found to be a cruel man, whose guards
would be instructed to
assault anyone who went against his wishes or instructions.
The Judge who dealt
with the appeal analysed all the evidence of the witnesses carefully
from the record and found that, although
certain criticisms had been
made concerning their failure to report timeously, there were reasons
of fear on the part of the complainants.
Examples were given to the
complainants of what could happen to them if they told anyone about
the rapes. The applicant gave
the names of people who had died
after telling others about being raped by the applicant. The
evidence of the witnesses was so
detailed that any possibility of
fabrication was ruled out.
The applicants own
evidence was found to be mere denials and his evidence and that of
his witnesses was not worthy of belief.
The court also found that
the applicant had contradicted himself on a number of points. It
therefore rejected his story.
I must point out here
that an appeal court is very unlikely to go against factual findings
of the trial court which had the opportunity
to listen to and
actually see the witnesses and observe their demeanour when giving
evidence, unless it is shown that there is a
clear misdirection on
the part of the trial court.
In S v Ngara
1987 (1) ZLR 91 (SC) at 98, it was made clear that where the trial
court makes a firm finding of credibility and is impressed with
the
demeanour of witnesses the appeal court will not readily be persuaded
that the trial court erred in its assessment of the evidence
if it
has the same impression gained from a reading of the record.
The findings of both
the magistrates court and the High Court cannot be faulted.
There was no misdirection.
I see no prospects of
success on appeal against conviction.
On sentence, the High
Court reduced it from an effective thirty-two years to an effective
twenty years.
In his notice of
appeal against sentence, the applicant only suggested that the
sentence induces a sense of shock and should be
set aside. He
submitted that the court took into account only aggravating features
and says that that was a misdirection. It
has not even been
suggested what mitigating features need to be taken into account to
reduce the sentence further after it was reduced
by the High Court.
I therefore find that
there are no prospects of success either on conviction or sentence.
The application for
leave to note an appeal out of time is dismissed.
Musunga &
Associates, applicant's legal practitioners
