Lawrence Mashonganyika v The State

### Preamble
1
HH 131-18
CA 1222/12
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LAWRENCE MASHONGANYIKA

versus

THE STATE

HIGH COURT OF ZIMBABWE

HUNGWE & BERE JJ

HARARE, 6 February 2014 & 14 March 2018

Criminal Appeal

A Masango, for the appellant

I Muchini, for the respondent

HUNGWE J: At the hearing we dismissed the appeal against both conviction and sentence and indicated our reasons in an ex tempore judgment. The appellant has written to the registrar requesting for our written reasons for that decision. These are they.

The appellant was convicted of rape as defined in s 65 of the Criminal Law (Codification and Reform) Act, [Chapter 9:23]. He was sentenced to 15 years imprisonment of which 5 years were suspended on the usual condition of good behaviour. He noted an appeal against conviction as well as sentence to this court. He raised five grounds of appeal against sentence and two against sentence. All the five grounds of appeal amount to an attack on the factual findings made by the trial magistrate as well as findings on credibility.

I attempt to summarize the five grounds of appeal as follows. The first ground of appeal is that the court erred in convicting the appellant of rape when the evidence fell short of proof beyond a reasonable doubt particularly where there was no proof that sexual intercourse took place against the complainant’s will. Secondly, the appellant contends that the trial court misdirected itself in its finding on credibility in favour of the complainant when circumstantial evidence suggests that there was consensual sexual intercourse. Thirdly, the appellant alleges that the court misdirected itself when it concluded that the removal of complainant’s trousers and pants by the appellant indicated absence of consent on complainant’s part. Fourthly, the appellant claims that the charges were brought as an afterthought when the complainant realised that he was married. In short, his defence at trial was that the allegations are false and actuated by malice.

It will be seen that the grounds of appeal against conviction are a general attack on findings of fact and credibility.

As against sentence, the appellant complains that the sentence is so harsh as to induce a sense of shock. He also states that the sentence is out of sync with the trend of sentencing is similar cases.

Where an appeal is based on an attack on the findings of fact by the trial court, which findings are a result of an assessment of the credibility of the complainant and other State witnesses, it is important to recall the time honoured practice and role of an appellate court. It is this. The assessment of matters relating to credibility is a matter for the trial court. An appeal court will not lightly interfere with such findings unless these are outrageously irrational and not consistent with the evidence led. See S v van Aardt 1975 (2) SA 372 (RA). Where the appeal is based on an attack on the factual findings by the trial court, as here, there are recognised principles which are applied. These may be summarised as follows.

where there has been no misdirection by the trial court, the presumption is that the conclusion is correct; the appeal court will only interfere and reverse the trial court’s findings where it is convinced that the finding is wrong;

where the lower court’s finding is based on demeanour and credibility of the witness, an appeal court will be reluctant to upset the finding, provided that the evidence of the witness is otherwise satisfactory;

similarly,  if the trial court misdirected itself and the misdirection seriously affected the court’s view of the appellant’s credibility, the appeal court should ignore the lower court’s findings on credibility and approach the appellant’s evidence as it stands on the record and see whether the evidence on the record justifies the conviction (R v Sibanda (1) 1964 RLR 360);

even in drawing inferences, the trial court may be in a better position than the appeal court, in that it may be more able to estimate what is probable or improbable in relation to the particular people who it observed at the trial;

however, sometimes the appeal court may be in as good a position to draw inferences as the trial court was, where the inferences are drawn from admitted facts or from facts found by the trial court;

there may be a misdirection on fact by the trial court where the reasons are either on their face unsatisfactory or where the record shows them to be such; there may also be a misdirection where though the reason as far as they go appear satisfactory, the trial court overlooked other facts or probabilities;

an appeal court should not seek anxiously to discover reasons adverse to the conclusions of the trial court. No judgment can ever be perfect and all-embracing. Simply because something was not mentioned, it does not mean that it was not considered. See S v Swanhawk (Pvt) Ltd 1973 (2) RLR 70, citing R v Dhlumayo & Anor 1948 (2) SA 677 (A) at 705-6.

The complainant told a plain and simple story regarding how the charges of rape arose. It reads well and the learned trial magistrate correctly considered the issues of demeanour and credibility and concluded that her evidence be accepted. She met up with the appellant whilst on her way to fetch children from a party in the neighbourhood of the appellant. The appellant was known to her. When he invited her to accompany him to fetch his cell phone which was being charged somewhere, she readily agreed. She considered him a brother. When they arrived at a residence, he went in then came out to tell her that his grandmother wanted to greet her. She asked if the grandmother cannot come out and meet her. He went back into the house. When he came out, he literally pulled her into the house. She expected to see his grandmother. She did not see her but instead, she saw his friend who then left the room where they were. The appellant then pushed her onto a bed. He forced his tongue into her mouth preventing her from crying out. He, at the same time, pressed her down and removed her dress and “tights” before pulling down her pair of pants. He then raped her.

After the rape he asked her to dress up and promised to buy her a pair of shoes. He accompanied her home. She had difficulty in walking due to the experience coupled with the effects of a stroke she had previously suffered, she had difficulty in walking. He, therefore, supported her as they walked home together. She cried all the way. He left her close to her residence promising to come back. Her grandmother, who she was visiting at the time of this incident, asked her why she was crying. She disclosed to her grandmother that the appellant had rapes her. The matter was reported to police the same night.

For his part, the appellant claims that the complainant had consented to sexual intercourse but had suddenly became spiteful upon discovering that he was married.

The learned trial magistrate had rejected this defence of consent for various reasons, but mainly for the reason that the narrative given by the complainant was consistent with the probabilities of the matter. He found that there was no affair existing between the two prior to the incident. The forced removal of the undergarments, in the court’s finding, was consistent with lack of consent. In any event, there was sufficient corroboration of the report of rape being made soon after the incident to the person the complainant could have been reasonably expected to have reported. The torn pair of pants which were also blood stained, were taken as an exhibit by the police and were produce at the trial. Her evidence in court was corroborated by the person to who she made the report of rape implicating the appellant the same night.

In his judgment the learned trial magistrate dealt with all the factual issues raised by the appellant in his grounds of appeal. I do not find any misdirection in the manner he assessed issues of demeanour and credibility. There is no basis for the claim that the complaint of rape was maliciously brought because complainant and her relatives discovered that he was married. It needs to be repeated that the complainant reported rape upon being asked why she was crying. This was well before the visit to appellant’s residence where the appellant claims the party then discovered that he was married. The evidence shows that Karen Mujaji, complainant’s sister who lives in the neighbourhood took complainant to the appellant in order to confront him over the rape allegations before a report to police because she knew him. She also knew that he was married. She could not understand why he did this to her sister who he knew had suffered a stroke. The matter exhibited all the hallmarks of a rape rather than consensual intercourse.

The appellant protested that the sentence imposed was manifestly excessive. We disagree. The appellant was known to the complainant who regarded him as a brother. He knew that she had suffered a stroke and had lost the full functionality of her right hand. He took advantage of her in that he could force himself upon her with minimum resistance. He chose his victim carefully so as to ensure he satisfies his sexual desires against her will. She clearly was traumatised by the experience at the hands of a trusted person. The Criminal Law Code provides up to life imprisonment for this type of crime. There is no excuse for such a crime. It is the maximum humiliation that a woman can be subjected to. We were not referred to any authority for the submission that a sentence of 15 years is out of sync with the sentences imposed in similar circumstances. In fact, this sentence appears to be the norm, more or less.

It was for these reasons that we dismissed the appeal on the turn.

BERE J authorises me to state that he agrees with this judgment.

Musunga and Associates, appellant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners