THE State V Ranganai Topotsa

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HH 683-18
B 1182/18
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THE STATE

versus

RANGANAI TOPOTSA

HIGH COURT OF ZIMBABWE

CHITAPI J

HARARE, 22 October 2018

Bail Pending Appeal

Applicant In Person

E. Nyazamba, for the respondent

CHITAPI J: The decision on the above application has delayed because despite the application having been filed on 24 August, 2018, the record attached to it was in shambles. The State responded to the application on 28 August, 2018. I am not sure as to what record State counsel used to inform his response. On 29 August, 2018 Muremba J endorsed on record that the record was incomplete because pp 1-7 of the judgment were incomplete with only half pages printed. Reasons for sentence and the applicants’ mitigations were also missing. Muremba J made a further endorsement that the State should request for the record from the magistrates court. This endorsement was not surprisingly not complied with. I use the words “not surprisingly” because in my experience, the State has not been assistive in this regard judging from numerous requests which I made. To back up my point, the record was only availed through my intervention on 26 September, 2018 when I directed the Registrar to arrange for the trial record to be forwarded. Again due to administrative red tape on records movement, the record was only availed to me on 18 October, 2018. It however appears to me that it should not be the duty of the State to facilitate the provision of the record because apart from the State being the opposing party, it is not the custodian of the record. The custodian is the clerk of court who falls under the Judicial Services Commission and not the National Prosecuting Authority.

Before I directed that the record be availed, I had considered the application, the State’s response and the applicant’s reply to the State’s response. Both the applicant and the State Counsel agreed that I determine the application without further reference to them unless I had issues which I wanted to be addressed upon arising from the record. There are none and the following is my judgment.

The applicant was convicted by the Regional Magistrate at Marondera Court of the offence of rape on 21 September, 2017. He was sentenced to 20 years imprisonment with 3 years of that sentence suspended for 5 years on conditions of good behaviour. The allegations against the applicant in brief were that he is aged 30 years, resided at Aksasaba farm in Marondera and was unemployed. He is the father of the complainant a 6 year old juvenile. It was alleged that on 10 September 2017 the accused was left alone with the victim by his wife in their bedroom where the victim was sleeping. The accused’s wife went out to visit her sister in law nearby and expected to return within 20 minutes. The accused allegedly took advantage of his wife’s absence and raped the child. The complainant was said to have bled from her private parts and the accused’s pants were soiled with the complainant’s blood.

The accused’s wife unexpectedly returned and on entering the bedroom, she saw the accused placing the complainant on the bed and that the complainant did not have her diaper on. The accused looked visibly shocked and said that he wanted to change the complainant’s diaper. The accused’s wife then took a new diaper to dress the complainant with. She then noted that the complainant’s private parts were bruised and that she was bleeding. She enquired of the accused as to what had happened to the child but the accused did not respond.

The accused instead walked out of the house and lit a cigarette that he smoked. He then returned into the house and on being against questioned by the wife, he retorted that the complainant should stop putting questions to him and further that she should not disclose the matter to anyone else. On the following day, the wife noticed that the accused’s pant had stains on them. This prompted the wife to report the matter to the police on the same day.

The accused in his defence denied that he sexually assaulted the complainant. I should note that he did not deny that the complainant was sexually violated. The medical report prepared after the complainant was examined on 11 September, 2017 was produced by consent as exh 1. From the report, the complainant had fresh bruises on the bilateral labia majora. Penetration was confirmed as having been effected. The accused outlined that there was never a time in the evening of 10 September, 2017 that he was alone with the complainant because when the complainant’s mother went out to visit her brother’s wife (sister in law) the accused also left to visit his friend Itai Makape. The pant was not forensically examined to determine whose blood was on it. In this respect, the objection by the accused that the pant produced was not the one that he was wearing could easily have been answered by evidence of the origin of the blood on the pant. The other factor is that the accused having given an alibi that he was with his friend, called the witness to confirm his story.

The accused outlined that the complainant’s mother falsely reported him for rape because she had discovered upon prying on his phone that he had a girlfriend which was something that did not go well with her. She then concocted the rape allegation.

I have considered the record of evidence. What is critical is that evidence of sexual assault of the complainant was proved. The complainant did not give evidence. However this did not matter in view of the undisputed evidence of sexual assault. The issues for determination became, what caused the vaginal bruises and if they were a result of an act of sexual intercourse, who caused the bruises. The medical evidence from the medical practitioner was that the diaper or napkin can cause bruises on the victim’s private parts on the outside up to the thighs but not on the labia majora which is part of the inside of the vagina. The medical practitioner said that the nature of the bruises were a result of the application of force on the vagina and that there was reddening of the bruises showing that they were recent. There was in my view a factual and sound basis for holding that the vaginal bruises were a result of force applied to the vagina. The magistrate thus did not misdirect himself in reaching the conclusion that the complainant was a victim of sexual assault.

The only other issue was therefore, whether it was the accused person who sexually assaulted the complainant. The witness Makape was not helpful to the accused because he did not confirm the accused’s alibi but testified that the accused and his wife visited him early on 11 September, 2017 before he went for work. They simply discussed the issue of a phone message to do with a number which sent airtime to the accused’s number. The number belonged to the witness’s wife or girlfriend.

The trial magistrate made credibility findings of the witnesses and was impressed by the State witnesses. The magistrate made significant damming findings that the applicant did not challenge evidence that he was found holding the child and was in the process of placing the child on the bed upon the return of the wife. The accused alibi that he spent time with his witness was refuted by the witness as was the evidence of false implication by the wife. The accused was found not to be a credible witness and his suggestion that the wife injured the child in order to create a case against him was found not to have a sound basis. The court found that it defied logic and was most improbable that a sane mother would do that. One factor which exercised my mind was the accused’s lack of concern. He directed his energies on discrediting the medical evidence instead of being concerned as a caring father as to how the child could have suffered the injuries observed.

I do not find that the applicant’s chances of success are a foregone eventuality. The applicant was granted leave to appeal. The grant of leave to appeal does not translate to an automatic justification to grant bail pending appeal. The applicant must show on a balance of probabilities that the interests of justice will not be compromised by his admission to bail. See Raphel Tshabanga & 2 Ors v S HB 30/10. When the applicant stands convicted of a serious offence where he has been sentenced to a very long term of imprisonment as in this case, the risk of abscondment once let out of custody looms large. It also brings the criminal justice system into disrepute to allow convicts convicted of serious offences on appeal to roam around as free citizens. A wrong message will be sent to society by the admission of such convict to bail. The grounds of appeal filed by the applicant which I will not relist though I have gone through them in depth, do not inspire any confidence in me save to conclude that the appeal does not enjoy reasonable prospects of success. The applicant must pursue his appeal whilst serving.

It is ordered that in all the circumstances of this case, the bail application pending appeal must fail and it is accordingly dismissed.

National Prosecuting Authority, respondent’s legal practitioners