Pikanos Gahadzikwa v The State

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HH 172-18
B295/18
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PIKANOS GAHADZIKWA

versus

THE STATE

HIGH COURT OF ZIMBABWE

NDEWERE J

HARARE, 13 March 2018

Bail Application

S, M Chisoko, for the applicant

T. Mapfuwa, for the respondent

NDEWERE J: This is an application for bail pending appeal against conviction only. At his trial the applicant was facing three counts of rape as defined in section 65 (1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The victim is aged 12 years and at law incapable of consenting to sexual intercourse. The State alleged that the applicant had had sexual intercourse with the juvenile on the 27th, 28th and 29th November 2017. At the close of the state case. The applicant applied for discharge. The trial court delivered a ruling wherein it made the following observations:-

“In assessing the evidence that is before the court, it is of the view that there are serious inconsistencies with regards count 1 and 2. Which leaves the court in no doubt that there are no offences committed in those two incidents. With regards count 3 however in light of the medical affidavit which was compiled soon after the complainant had allegedly been raped having been examined on the very same day and the findings of the nurse and the accused on suspicious movements from the morning …. and his continued handling of the matter of complainant’s indiscipline when the other teachers had excused themselves….”

The trial court therefore acquitted applicant on counts 1 and 2 at the close of the state case and the trial proceeded leading to the conviction on count 3.

The complainant in the three counts is the same.

This is a matter where the issue of consent is irrelevant in light of the victims age. The victim did not report the rape. Her grandmother acting on suspicion caused the victim to be examined for virginity. The victim was examined by a nurse who found evidence of recent sexual intercourse. The nurse also observed that the victim had a discharge which could have been a sexual transmitted disease or related to sexual transmitted disease. The issue of the discharge was not investigated further. The nurse observed what she believed was to be semen. That again was not investigated further. The trial court considered that the failure by the state to pursue the issue of the vaginal discharge and semen was peripheral.

The trial court may have fallen into error in that regard. The issue at stake at the trial was the identity of the assailant taking into account that it was not only the applicant who had the opportunity to abuse the child. The submission that a child victim can point out an innocent person when questioned in order to protect the real culprit is not far fetched particularly in a case where she had been discovered as opposed to a report by her.

In January 2018 the applicant submitted to HIV tests. The victim is HIV positive while the applicant is negative. The results were before the trial court. The trial court did not comment on the results. The issue was not pursued by the State. The applicant submits that the trial court should have found that the results excluded him as the assailant. The State submitted in argument that, possibly the child was born positive. The State however conceded that it was up to the state to investigate this issue further to exclude the possibility that someone else who is HIV positive could have infected her. I therefore find that the applicant has a reasonably arguable case on appeal.

He is a teacher. He has fixed abode and a family man. The interests of justice will not be prejudiced by his admission to bail pending appeal. Bail is therefore granted in terms of the following conditions:

He deposits $150 with the clerk of court Rotten Row Magistrates Court.

He resides at House No. 696 Ushewokunze, Harare until this matter is finalised.

He reports at Ushewokunze Police Station every Friday between 6am and 6pm.

He does not interfere with any state witnesses.