Jamu v State (220 of 2025) [2025] ZWHHC 220 (31 March 2025)

1 HH 220-25 HCHCR 285/25 ISAAC JAMU versus THE STATE HIGH COURT OF ZIMBABWE ZHOU AND CHIKOWERO JJ HARARE; 24 and 31 March 2025 Criminal Appeal Appellant in person P A Gutu, for the respondent CHIKOWERO J: [1] This is an appeal against the whole judgment of the Regional Court (the lower Court) sitting at Harare convicting the appellant on a charge of rape as defined in s 65 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Criminal Law Code). He was sentenced to 15 years imprisonment. [2] The appellant and two others were all convicted following a full trial on one count each of robbery, rape and aggravated indecent assault as defined in ss 126, 65 and 66, respectively, of the Criminal Law Code. [3] Each was sentenced to 12 years imprisonment on the robbery charge (which was count 1), 15 years imprisonment on the rape charge (count 2) and 10 years imprisonment on the aggravated indecent assault charge (count 3). Because the second and third counts concerned kindred offences, the lower court suspended 5 years from the total of 25 years imprisonment on the usual conditions of future good behaviour. [4] As regards the robbery charge the lower court found that on 6 October 2019 at a certain house in Waterfalls, Harare, the appellant and the two who are not before us broke into that residence at night and stole various household property and a Mercedes Benz motor vehicle. They were armed with bricks, knives, iron bars, machetes and a hammer. HH 220-25 HCHCR 285/25 [5] During the course of the robbery, one of them, but acting in association with the others, raped IM, a female maid employed at that residence. Her employer, also female, was the victim of the robbery. [6] Again in the course of the robbery, one of the three robbers, acting in association with the others, inserted his fingers into ISM’s vagina and ordered her to suck his penis. [7] The appellant sought leave to appeal out of time and for a certificate to prosecute an appeal against all the convictions and sentences in person. The application was successful only in respect of the count of rape. [8] This we say right from the beginning. The aggravated indecent assault was, as far as the conduct itself is concerned, committed by only one of the three offenders. But all three were convicted because the lower court was satisfied that the other two associated themselves with the commission of that offence. We have already said that the offence of aggravated indecent assault was committed in the course of the robbery. [9] The same pertained to the count of rape. The three’s liability rested on them being co- perpetrators. See S196A of the Criminal Law Code and S v Madzokere and 3 Ors SC 71/21. It matters not that the lower court proceeded on the basis that it was applying the doctrine of common purpose. [10] It was never proved who it was of the appellant and the two not before us that penetrated IM per varginum. But that is immaterial. IM recounted a harrowing tale of the rape. She was awoken by the sound of the offenders bursting into the house. She was sharing the bed with two others. The armed robbers were wearing masks revealing only their eyes, noses and mouths. [11] One went for the phones by removing them from the chargers and pocketed the same. The other stole television sets taking them outside the house. The third, who was wielding a hammer and a sharp-edged iron bar, ordered IM to lower her pants. Terrified, she just looked at him and walked into the corridor. He followed her. Still, she refused to do his bidding. He pushed her with that iron bar. She was by then in the bathroom. She fell into the washing machine. There was water in that machine. He raised the iron bar. Still terrified, she lowered her pants. He lowered his pair of trousers and switched off the bathroom light. At this point in her testimony, IM started sobbing. She picked up her narration. She was ordered to lie down in the tub. This she did as she had no option. The offender placed the iron bar on her chest. He HH 220-25 HCHCR 285/25 asked her if she had engaged in sexual intercourse before. Her answer was in the negative. The complainant again broke down. Since she was unable to continue testifying, the trial was postponed to the following day. [12] When the trial resumed, the complainant said this. The offender raped her in the tub, with the iron bar on her chest. The act itself lasted for about 25 minutes after which he removed the iron bar form her chest and closed the bathroom door. He only stopped raping her after his accomplices had called out to him: “ Tsano Vengido, let us go now.” “Tsano” is informal language for either a brother-in-law or used as a mark of respect when addressing an adult of a certain age even where there is no relationship through marriage. After satisfying herself that the offenders had gone, the complainant immediately told her employer and another female adult in the house that she had been raped. She was bleeding from the vagina and could hardly walk. Those two literally dragged her into the dining room. After the complainant had testified in chief, the following transpired: CROSS-EXAMINATION BY ACCUSED PERSONS BY ACCUSED 1 (TO WITNESS) “Q. Did you see me on the day this offence was committed? A. I did not see you. NO FURTHER QUESTIONS BY COURT (TO Accused 2) Q. A. Do you have any questions to put to the witness? I have no questions to put to the witness because I did not commit the offence. By Court (To Accused 3) Q. Would you have any questions to this witness? I do not have any question because she had never saw me committing the said offence. I A. did not commit the offence” [13] What the foregoing demonstrates is that none of the three, the appellant included, disputed that IM was raped. We have said the rape was committed in the course of the robbery, by the robbers. They also committed the aggravated indecent assault. HH 220-25 HCHCR 285/25 [14] The appellant was convicted of the robbery and the aggravated indecent assault and duly sentenced. Those convictions and sentences are not the subject of the appeal. What this means is that those convictions are correct. Since the robbery and aggravated indecent assault were committed by the same persons who committed the rape there is no way that the appellant’s appeal against the judgement of the lower court convicting him of rape can succeed. That really is the end of the matter in as far as the appeal against the conviction on the charge of rape is concerned. [15] But this we say also. The appellant did not cross examine the complainant at all. This means that the lower court had no reason not to find that the complainant was a credible witness. The appellant did not challenge her credibility at the trial. He cannot do so for the first time on appeal, through grounds of appeal. [16] If follows that the appellant cannot attack the correctness of the lower court’s factual finding that the complainant was raped. He cannot, on appeal, question the fact of the rape having been committed. It is too late for him to do so. If he thought that the complainant had not been raped at all, he should have raised that issue in his defence outline and cross-examined the complainant in that regard. We record that his defence was an alibi, which was rejected. He has raised no ground of appeal questioning the correctness of the finding rejecting his defence. [17] It is not a requirement of the offence of rape that the victim be a virgin. Nothing turns on the appellant’s endeavour to question the complainant’s virginity at this stage. It suffices that we say, for what it is worth, that even at the trial the appellant did not take issue with the complainant’s evidence that the offender took away her virginity. [18] [19] [20] The appeal against the conviction is completely devoid of merit. So is the appeal against the sentence. The mitigation was considered. His age, family responsibilities and status as a first offender were taken into account. But these were outweighed by the aggravating factors. Rape is a heinous offence. A high degree of violence was used in the commission of this offence. This judgement has already captured the same. The rape was committed in an extremely aggressive manner. The complainant was terrified. She was traumatised. The trauma was evident in her repeatedly breaking down as she testified. The complainant was humiliated, subdued and ravaged. The crown it all, the robbers defecated in a bucket full of mealie-meal. HH 220-25 HCHCR 285/25 This is disgusting. The lower court correctly took the view that our society does not deserve to have in its ranks persons such as the appellant. This was rape committed in the course of robbery. [21] The appellant was convicted and sentenced on 20 May 2021. The penalty for rape is imprisonment for life or any definite period of imprisonment. The appellant was extremely fortunate that the lower court imposed a sentence of only 15years imprisonment for this rape and then proceeded to suspend 5 years on the conditions of good behaviour. It matters not that the 5 years was suspended from the total of 25 years after taking into account the 10 years imprisonment for the aggravated indecent assault court. [22] There is no room for contending that the sentence for the rape should have been ordered to run concurrently with the sentences for the robbery and aggravated indecent assault counts. The rape is a grave offence on its own. It deserved a much more stiffer sentence than the one which the appellant got away with. The sentence imposed is not manifestly harsh and excessive. It does not shock us. [23] The appeal be and is dismissed in its entirely. CHIKOWERO J…………………………………………………… ZHOU J…………………………………………………………… Agrees The National Prosecuting Authority, respondent’s legal practitioners.