Chengetai Mapuka v The State

### Preamble
1
HH 684-18
CA 679/17
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CHENGETAI MAPUKA

versus

THE STATE

HIGH COURT OF ZIMBABWE

HUNGWE & WAMAMBO JJ

HARARE, 13 September 2018 and 24 October 2018

Criminal Appeal

T G Nenzou, for the appellant

F I Nyahunzvi, for the respondent

WAMAMBO J:  The appellant was convicted of contravening s 65 as read with s 189 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and sentenced to 5 years imprisonment of which 1 year was suspended on condition of good behaviour.

Dissatisfied with both conviction and sentence he noted an appeal. The singular ground on conviction is that couched as follows. The court a quo erred at law by convicting appellant of attempted rape when there was no evidence that he tried to have sexual intercourse with complainant.

The singular ground against sentence is one of those very popular would be grounds of appeal on sentence wherein it is alleged that the sentence passed is so manifestly excessive and induces some sense of shock, viz a viz the prevailing mitigatory and aggravatory factors in the circumstances.

On conviction there is one crisp issue to be determined.

The argument raised by the defence is that appellant’s actions fall short of attempted rape. The appellant’s actions were preparatory so the argument went.

When the trial magistrate was invited to respond to the notice of appeal his response was as follows;

“appellant’s counsels did not state where the court misdirected itself. The court 	therefore 	 abides by the reasons for judgment.”

The magistrate is effectively saying the ground of appeal is not clear and specific, that the ground of appeal is so generalised that the only answer he can give is that he abides by the reasons he gave in judgment.

Suffice to say the ground of appeal as couched could indeed be clearer and more specific.

The State case consisted of two witnesses namely the 16 year old complainant and her brother. What comes out from the two’s testimonies is as follows: Complainant was at the garden when appellant, a neighbour approached her and grabbed her on the neck and hand. He then said he wanted to have sexual intercourse with her. He dragged her into a bush and again said her wanted to have sexual intercourse with her.

He dragged her for more than a hundred metres, then fondled her breasts while grabbing her neck. Her brother called out her name and she responded in a muffled voice because appellant was holding her on her neck. Complainant’s brother who had followed drag marks found complainant trying to free herself while appellant was dragging her. When appellant saw the complaint’s brother he fled. The complainant’s brother asked his sister what was happening and she promptly told him that appellant wanted to have sexual intercourse with her.

The appellant who was unrepresented during the trial in his defence outline attributed the attempted rape allegation to a family dispute where his brother was arrested and complainant’s family celebrated in the belief that he would not return. How this affected the case was not articulated by the appellant. Complainant pointedly testified that her family and that of appellant relate well as neighbours.

It is to be noted that appellant never asked of this grudge to complainant in cross examination. In his defence case appellant never raised the issue of this particular grudge.

In his defence outline appellant also raises the issue that complainant’s family wants to have his family chased from their home as they want his family’s land. Appellant refers to the attempted rape allegation as malicious.

The link between complainant’s family’s quest to take over his family’s land is not clear from appellant’s defence outline and testimony. Appellant never cross examineD of complainant or her brother on this particular grudge.

In his defence case appellant also did not testify on this allegation. In fact in testimony appellant raises a new grudge, that of complainant’s family stealing his family’s livestock.

In the circumstances as analysed above we find that the alleged grudges are not only false but are also not connected to the offence in this case. Notably in  his defence outline appellant never pointed out that he never attempted to rape the complainant, neither did he do so when cross examining the complainant. The closest he ever came to putting it to the complainant that he never attempted to rape her is when he asked as follows:-

“Q. If I wanted to rape you, do you think I would have spoken so loudly that I would draw 	people’s attention.

You were shouting.”

When cross examining the complainant’s brother the appellant never questioned his testimony that he saw him dragging complainant and that he thereafter fled.

The learned trial magistrate in the circumstances correctly found that the State evidence was reliable and consistent while the defence case was effectively full of holes.

The last issue on conviction concerns whether the evidence as given and accepted by the trial court establishes an offence of attempted rape.

What was the intention of the appellant when he held the 16 year old complainant’s neck and hand, said he wanted to have sexual intercourse with her, dragged her for about a hundred metres into the bush, fondled her breasts while still grabbing her neck?

Had the complainant’s brother not intervened, what would appellant have done? This must be seen against the background of the words uttered by the appellant himself reflecting his intention. It certainly did not escape complainant’s attention that the combination of dragging, a declaration of his intention to have sexual intercourse with her, grabbing by the neck and hand and fondling of breasts indicated that the appellant wanted to have sexual intercourse with her. This is what she told her brother at the scene that the appellant wanted to have sexual intercourse with her.

Professor G Feltoe in the Commentary on the Criminal Law (Codification and Reform) Act 2004 gives an example of acts that have reached the stage of commencement of the execution of the crime at p 136 as follows:-

“X an arsonist pours petrol on building and is about to set fire to building when 	stopped by 	police.”

In The State v Kelvin Makoni HH 824/17 Musakwa J dealt with a review matter wherein the accused was convicted of contravening s 67 (1) (a) (i) of the Criminal law (Codification and Reform Act) [Chapter 9:23]  The learned Judge was however of the considered view on the facts of that matter that the accused should have been charged with rape.  Musakwa in the Makoni case supra  said at p 3:

“In Burchell and Hunt, South African Criminal Law and Procedure Vol 1 the conduct 	constituting attempt is said to be of two kinds, completed and uncompleted attempt.  	Thus in a completed attempt the accused does everything which he sets out to do but 	fails, either through lack of skill or foresight or because of some unexpected obstacle.  	In 	uncompleted attempt the accused fails to do what he sets out to do because he is 	thwarted by 	the intervention of some external agency or by changing his mind and desisting. The 	question of when commencement of execution starts has always 	vexed the courts and no 	attempt has been made to lay a test as everything should 	depend on the facts of a particular 	case.  The case of R V Schoombiee 1945 AD, 541 helps to elucidate the issue at hand.

In that case, the accused was charged with attempted arson.  He had gone to a shop 	with a tin of petrol.  Having placed the tin of petrol against the door he proceeded to, 	pour petrol, some of which flowed under the door. He was then interrupted by a 	police 	officer whilst in the process of pouring the petrol.  Having been convicted, he noted

an appeal.  The argument advanced on his behalf was that his conduct amounted to mere 	preparation as he had neither a box of matches in his hand nor had he lit a matchstick.

Dismissing the appeal Watermeyer CJ acknowledged the difficulty posed in 	determining 	when preparation ends and when perpetration commences. He also made 	reference to the two 	types of attempt discussed by Burchell and Hunt.  Having observed that the case 	before them 	concerned an interrupted attempt at 547 he made the following remarks:

“It seems therefore that in the case of interrupted crimes an attempt to commit such crime is proved when the court is satisfied from all the circumstances of the case that the wrongdoers at the time he was interrupted intended to complete the crime and that he had at least carried his purpose through to the stage at which he was “commencing consummation.”

In applying the above principles in the instant case we are satisfied that the appellant

had indeed “commenced consummation” and thus that the conviction is unassailable.

On sentence the appellant advances the argument that it was excessive in the

circumstances. In an apparent abandonment of the appeal against sentence the issue of sentence is not addressed at all in the appellant’s heads of argument nor in oral argument.

In the light of similar decided cases however the sentence passed accords with the circumstances of the case, the appellant and the interests of society.

Attempted rape is a serious crime. In this case like in many others it carries elements of violence, indignity, fear and anxiety of what will or might happen next. The sentence passed is in the vicinity of other similar decided cases. See The State v Trymore Kamudzandu HH 215/17, John Magodora v The State HH 245/15.

In the result we dismiss the appeal in its entirety.

HUNGWE J: agrees ……………………..

Chibaya & Partners, appellant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners