Tirivanhu Ndoziva v The State

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TIRIVANHU NDOZIVA
versus
THE STATE


HIGH COURT OF ZIMBABWE
HLATSHWAYO AND KUDYA JJ
HARARE 10 FEBRUARY 2011


Criminal Appeal

S Deme, for the appellant
A. Masamha, for the respondent


       KUDYA J: This is an appeal against conviction and sentence. On 30 November 2006
the appellant was convicted of two counts of rape. These were allegedly committed on 26 July
2004 on two girls aged 4 and 8 years, respectively. He was sentenced to 10 years on each
count. Of the total of 20 years imprisonment, 5 years were suspended for 5 years on conditions
of future good conduct.
       It was common cause that the two girls were sexually interfered with on 26 July 2004.
Both girls were examined by a doctor on 28 July 2004. On the four year old the doctor
observed that her hymen was attenuated and had a deep notch at the 7 o’clock position while
the fourchette had a small scar in the middle. On the eight year old she observed attenuation of
the hymen and a deep notch at the 8 o’clock position. It was common cause that during the
evening of 26 July 2004 the mother of the four year old bathed the girl. In the process she
discovered semen in her female organ. She questioned her about the white substance. She told
her how the whitish stuff had been deposited into her private parts. She took the girl to the
clinic where she was referred to hospital. Thereafter she made a report to the police. The girl
led the police and her mother to one of the three tuck shops that were 50 m from her home.
The culprit was not in that tuck shop. The police took the girl to one of the other tuck shops
where she pointed out one of the three boys as the rapist. The mother admitted under cross
examination that she wielded a switch on the way to the tuck shops. She further stated that
when they were about to reach the tuck shops, the girl stopped in her tracks and only trudged
on after she waved the switch at her. She, however, attributed her reluctance to fright.
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       The four year old gave evidence when she was six. She stated that she was playing
with the eight year old girl close to the three tuck shops that were near their houses. A boy
from one of the tuck shops called them to where he was. She went to him. He asked her to lie
down. She did so. He removed her pants. He took out his urinating organ and inserted it into
her urinating organ. She cried out in pain. He gave her some sweets and ordered her to go
home. She bled. She stated that she used to see him running the tuck shop before the incident
but did not know his name or where he resided.
       The boy also asked her eight year old companion to lie down. She complied. He
inserted his male member into her female organ and she cried out in pain. The pants of her
friend were blood stained. The boy gave her friend some sweets. They went home. At home
her mother discovered blood stains as she was bathing her. She was taken to the clinic and to
the police. She went to the tuck shop where she identified the culprit who was in the company
of two others. Under cross examination she averred that she voluntarily led her mother and the
police to the tuck shops where she freely identified the accused as the perpetrator.
       The eight year old girl, who was born on 14 June 1996, also testified twenty months
after the incident. She confirmed the testimony of the four year old on how they came to be at
the scene of crime and how each of them was sexually abused in turn by the tuck shop
operator. She added that he locked the tuck shop and proceeded to gag their mouths and tie
their hands at the back. She did not bleed. He gave them sweets after wards. She did not tell
her mother for fear that she would assault her. She went with the first girl and the police to
identify the perpetrator. The elder girl’s mother stated that her daughter revealed what had
transpired at the police station where she was accompanied by her late father.
       The accused testified. He knew the younger girl’s mother. She often sought to buy
goods on credit. In line with the tuck shop policy, he declined as it was a cash and carry shop.
She threatened to close the shop because he refused to extend credit to her. Further, he averred
that he had been told by the owner of the tuck shop that her brother stole some cold drinks
from the tuck shop. She came to the tuck shop holding a crying complainant in one hand and a
whip in the other. He stated that the three tuck shops, one of which operated as a shebeen,
were near a school and were so busy such that the offence would have been easily detected. He
called Isaac Kufa, the owner of the tuck shop, who gave irrelevant hearsay evidence which
was unhelpful to the appellant’s defence. For what it is worth he averred that the brother to the
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mother of the four year old once stole some eggs from his tuck shop before he employed the
accused. He did not allege as did the accused that he stole some cool drinks.
       In her judgment, the trial magistrate correctly identified the issue for determination to
be whether or not the appellant was the perpetrator of the two offences in question. She found
it proved that the two girls had prior knowledge of the appellant before the offences were
perpetrated and that he ran one of the three tuck shops that was situated 50m -100m from their
homes. She found both girls credible and relied mostly on the testimony of the elder girl to
found conviction. She was old enough at the time to appreciate the difference between right
and wrong, truth and falsity. She did not volunteer the report of rape for fear that she would be
blamed for what had happened to her. She, however, voluntarily led the police to the tuck shop
run by the accused. At the time the accused was not in the tuck shop. She was able to identify
him amongst two others who were in his company in one of the other two tuck shops. Unlike
the younger girl who might have been impressionable and subject to the influence of her
mother at four, the elder girl was free from these factors. In comparison, her testimony was
more detailed than that of the younger girl. It accorded with the objective facts in that she
correctly stated that she did not bleed. The absence of blood on both girls was confirmed by
their respective mothers. The younger girl’s mother accepted that she carried a switch which
she used to threaten the younger girl when she appeared to falter on the way to the tuck shops.
No such threat was used on the older girl who was also in their company at the time.
       Mr Deme, for the appellant, attacked the elder girl’s evidence on the basis that the State
outline indicated that she was interrogated by the police before she identified the perpetrator.
He suggested that the identification of the culprit was extracted by force. Neither the girl nor
the first girl‘s mother stated that force was used by the police to extract the identity of the
culprit. Rather the evidence revealed that she did not know the name of the perpetrator. She
however knew where he was based and she voluntarily led the police to him. The evidence
does not show that she was intimidated or forced into taking the police to and identifying the
perpetrator. In any event, as long ago as 1991 in the case of S v Nicolle SC 61/91 at p 2 of the
cyclostyled judgment KORSAH JA held that unlike a defence outline which is prepared from
what the accused person tells his counsel and is tendered into evidence with his approval, a
State outline is not prepared on the instructions of the complainant, is not approved by the
complainant before it is tendered in evidence and does not constitute part of the complainant’s
testimony. The word interrogation in the State outline did not constitute part of the elder girl’s
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testimony, was not placed therein by her or with her approval. In fact, it was at variance with
the evidence led at the trial. It cannot, therefore, be used to undermine her testimony.
       The evidence of the younger girl was attacked on the basis that the mother threatened
her with a switch when she appeared reluctant to proceed with the journey as they neared the
tuck shops. The submission being that the reluctance demonstrated that the perpetrator was not
at the tuck shops. The mother’s explanation, which was not challenged or discredited under
cross examination, was that the girl became frightened as they approached the tuck shops. In
my view, her fright was a natural reaction of a girl of her age regard being had to the more
detailed testimony of the elder girl on how they were tied and gagged before they were raped.
She would also have been frightened to approach the scene of crime after the rigmarole of the
examinations and questions at the clinic, hospital and police station that would in reality
amount to secondary rape.
       The two girls gave conflicting versions on two aspects. The first was that the elder girl
said they were first tied and gagged before they were raped while the younger girl said they
simply obeyed his instruction to lie down. The elder said she did not bleed, the younger stated
that they both bled. These discrepancies were not dealt with by the trial magistrate, neither
were they referred to on appeal. The medical report compiled two days latter spoke to a scar
on her fourchette. Both girls hymen were stretched and had notches. Both girls stated that they
felt pain as the accused inserted his penis into their female organs. The interference which left
these marks may have caused bleeding but it could be that the four year old may have
associated semen with blood. After all her mother was emphatic that she saw semen and not
blood. It seems to me that the older girl by virtue of her age had better and more acute powers
of recall than the younger one, thus making her fuller version more accurate. The importance
of their versions lies in the fact that they were raped one after the other by the same perpetrator
at the same place. Both were able to identify this perpetrator when he was in the company of
two others when the police went in search of him.
       I am satisfied that the identification cannot be impugned. I find that the appellant was
correctly convicted of the two counts of rape.
       The basis of the appeal against sentence was that it was too harsh. The appellant was
21 when he committed the two offences and 23 when he was sentenced. He spent 13 months in
custody before sentence. He was a single first offender who however looked after 10 siblings
from his occupation. In aggravation it was found that he raped two young girls. Both cried out
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in pain but where bribed by sweets. The experience was traumatic for them. All these factors
were considered by the trial magistrate before she imposed sentence.
        In S v Chuma SC 165/94 McNALLY JA stated that:

        “All cases of rape are horrible and sentences of rape having been increasing over the
        years.”

        Severe penalties are called for on the basis that rape is a gross violation of the rights,
body and dignity of the victims. Our courts have called for stiff penalties especially against
adults who prey on young children.
        In the present matter, it is clear that the children were physically injured and
psychologically scarred. Rape is a crime of violence which seeks to subjugate the will and
dignity of the victim to that of the perpetrator. The appellant’s moral blameworthiness was
very high. He committed two offences against two young girls within a short space of time.
Young children are easy prey because they can easily be threatened or bribed into silence. It
was fortuitous that the alertness of one of the mothers led to the rapid discovery of the
offences.
        The sentencing of juveniles in rape cases is a difficult exercise. The court has to
perform a delicate balance between the youthfulness of the offender and the seriousness of the
offence. It also throws in the interests of society into the scales. Society expects long periods
of incarceration to those offenders who commit serious crimes. In the same vein it expects that
youthful offenders by reason of their immaturity be afforded an opportunity to reform so that
they become useful members rather than a scourge to society.
        In S v Tendai & Anor (Juveniles) 1998 (2) ZLR 423 (HC) at 430B-C GILLESPIE J
stated that:
        “Before doing so, it would be as well to examine what might be meant by juvenile, or
        young, in this context. As one knows, the legal age of majority is 18 years. Therefore
        every person under 18 is a juvenile. That, however, is too narrow a definition of the
        concept for the present purpose. After all, the law makes express provision for special
        treatment of young offenders extending to the age of 20 years. In addition, as a matter
        of principle, as I have already suggested, persons up to the age of 21 and even older are
        generally treated as young offenders as and with more leniency than other adults. A
        juvenile or young offender, for these purposes, therefore, ought to be anyone up to the
        age of 20 years”.
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       In S v Zaranyika & Ors 1995 (1) ZLR 270 (H) BARTLETT J held that for juvenile
offenders aged between 17 and 19 years who are convicted of rape a sentence in the region of
5 to 6 years with 1½ to 2½ years suspended was appropriate.
       I have considered a variety of cases to guide me on whether the sentence imposed
induces a sense of shock. I have referred to S v Nyathi HB 60/03 where a father was convicted
of ten counts of rape on her juvenile daughter. An effective sentence of 30 years imprisonment
was reduced on review to 18 years. Again in S v Nhire HH 115-05 a 54 year old father raped
his juvenile daughter on divers occasions and had the sentence of 20 years reduced on review
to 17 years imprisonment of which 2 years was suspended for 5 years on the usual conditions
of future good conduct.
       In S v Chakapfava HH 188-04 a 33 year old offender who committed indecent assault
using his finger on a 3 year old toddler was sentenced on review to 7 years of which 2 years
was suspended. In S v Musasa SC 45/02, the age of the accused was not provided but he raped
a 4 year old and had the sentence of 10 years imprisonment of which 1 year was suspended
confirmed.
       In the present matter it seems to me that the accused did not use gratuitous violence on
the two girls. At 21, he was an adult who falls into the category of a young offender. He was
entitled to a measure of leniency. Even though his actions were abhorrent, it seems to me that
imposing an effective sentence of the same magnitude as in S v Nyathi, and S v Nhire, supra,
was inappropriate. The two counts were perpetrated separately but in close proximity. It would
have been appropriate to treat them as one for purposes of sentence. It seems to me that the
sentence imposed was unduly harsh and induces a sense of shock.
       Accordingly, it is set aside and is substituted by the following:

       Both counts as one for sentence:

       10 years imprisonment of which 2 years imprisonment is suspended for 5 years on
       condition the accused does not within this period commit any offence of a sexual
       nature for which he is sentenced to imprisonment without the option of a fine.


HLATSHWAYO J agrees.


Legal Aid Directorate, legal practitioners for the appellant
Criminal Division of the Attorney General’s Office, legal practitioners for the respondent