S v Tapuka (B 272 of 2015) [2015] ZWHHC 406 (22 April 2015)

1 HH 406-15 B 272/15 TALENT TAPUKA versus THE STATE HIGH COURT OF ZIMBABWE MATHONSI J HARARE, 23 April 2015 Bail Application T. Kabasa, for the applicant E. Makoto, for the respondent MATHONSI J: The applicant was 17 years old when the offence was allegedly committed and 19 years old when he was tried on a charge of rape. He was convicted and sentenced to 11 years imprisonment of which 2 years imprisonment was suspended for 5 years on condition of future good behaviour leaving him with an effective sentence of 9 years imprisonment. He appealed against both conviction and sentence. The applicant has now come to court seeking his admission to bail pending appeal arguing that his appeal enjoys good prospects of success in light of the fact that the trial court erred in accepting the testimony of the complainant hook, line and sinker when it was apparent that she was an unreliable witness. Considering his youthfulness and that at the time the offence was allegedly committed he was a minor, the sentence imposed induces a sense of shock. He was convicted of only one count of rape. The state is opposed to bail on the sole ground that there are no prospects of success given that the trial court cannot be faulted in its findings on the credibility of the state witnesses. What the court has regards to in considering an application for bail pending appeal is now well known. The factors for consideration are the risk or likelihood of abscondment, the prospects of success on appeal, the right of the applicant to his liberty and the likely delay before the appeal is heard in view of the sentence imposed; S v Dzawo 1998(1) ZLR 536; S v Benator 1985(2) ZLR 205. However whatever the circumstances, in an application of this nature, the determining factor is the applicant’s prospects of success on appeal considering that he would have lost the presumption of innocence upon conviction. HH 406-15 B 272/15 I do not agree with the state that the findings of the trial court are un impeachable. The complainant was allegedly raped in October 2013 (or September 2013 depending on who you believe between her and her mother). She did not report the rape to anyone until another individual, who incidentally was initially jointly charged with the applicant (see charge sheet and state outline p 29 and p 31), attempted to rape her at a funeral in February 2014. The delay in reporting may not on its own point to incredibility, but there are other pertinent factors. The complainant’s story rings hollow when one considers that she appeared to spring up new facts and surprises depending on the questions that were put to her in her evidence in chief. One would like to assume that the state outline was prepared having regard to the statement the complainant gave to the police. However that outline does not have most of what she stated in evidence. She mentioned for the first time in evidence that the applicant had thrown her onto the bed and tied both her hands from behind using a piece of cloth he had dashed to collect from the wardrobe after they had entered the bedroom. She stated that when they got into the bedroom the applicant had secured the door from outside with a piece of wire, succeeding in placing his hand out of the door through a hole. This, despite the fact that she was adamant that the applicant’s grandmother always left the keys to the bedroom on the shelf. The complainant states that all the time the applicant was dragging her to the bedroom she was quiet. She spoke for the first time (“I spoke this time”) after being thrown onto the bed and “at this point he produced a knife which had a black handle”. All this is not in the state outline. The trial court did not investigate these discrepancies with any zeal and appeared closed to the suggestions by the applicant that the complainant had been sent away from the comfort of her home in Avondale Harare to learn at a rural school because of her unacceptable behaviour. In my view the applicant has an arguable case on appeal. This is a young girl who found nothing wrong with calling her parents by name (record p 35) and her grandparents by name (record p 36). I am satisfied that he has made a good case for his admission to bail pending appeal and at the end of the day Mr Makoto for the state also saw the light. In the result, I grant the order for bail in terms of the draft order. Gutu & Chikowero, applicant’s legal practitioners The National Prosecuting Authority, respondent’s legal practitioners HH 406-15 B 272/15