Gift Ndlovu v The State

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HB 205/19
HCA 111/15
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GIFT NDLOVU

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

BERE & MATHONSI JJ

BULAWAYO 3 MARCH 2017 & 19 DECEMBER 2019

Criminal Appeal

K. Ngwenya for the appellant

T. Muduma for the respondent

BERE J:	The appellant was charged and convicted of one count of rape by the Regional Court sitting at Beitbridge Magistrates’ Court on 5 June 2015.  The conviction came against the appellant’s plea of not guilty.  Upon conviction the appellant was sentenced to ten years imprisonment of which three years were suspended on the usual good conditions.

The appellant appealed against both conviction and sentence challenging mainly the evidence of identification relied upon by the court a quo in identifying him as the assailant.

The appellant’s elaborate grounds of appeal were given as follows;

“The learned trial magistrate erred in placing reliance on the evidence of the alleged positive identification of the assailant at the police station, three (3) months after the alleged crime had been committed, and which identification process was seriously flawed, such that such process did not include the very real possibility of mistaken identification.

The learned trial magistrate erred in her/his reliance on a suspect identification process that was susceptible to manipulation by police officials.

The learned trial magistrate erred in making an adverse finding, as against appellant’s credibility visa-a-vise the credibility of the witnesses, based on appellant’s failure to effectively cross-examine State witnesses, in disregard of the fact that appellant was in his trial, an unsophisticated and unrepresented accused person where appearance in court was a maiden appearance.

The learned trial magistrate erred in placing reliance on the evidence of a young and impressionable complainant without exercising due caution in evaluating the evidence of such young and impressionable complainant.

The learned trial magistrate erred in placing reliance on a medical report compiled three (3) months after the alleged rape, but held out to have been made on the day of the alleged rape, and in failing to draw appellant’s attention to such”.

Briefly, the allegations were that on 19 January 2015 the seven (7) year old female who was on her way to school was raped by an unknown assailant.

On 21 March 2015, the victim’s mother and the victim were invited to Beitbridge Police Station by one Constable Mudzengerere, the Investigating Officer of the case.

Whilst the victim and her mother were in an office at Beitbrdige Police Station, Constable Mudzengeere brought in the appellant who had been arrested for an alleged assault.  It is then that the victim, who had been playing with toys and dolls, stopped playing, looked at the appellant, then at Constable Mudzengerere, and then looked at the appellant and at Mudzengerere again, before approaching her mother, now crying.

Constable Mudzengerere, inquired from the victim why she was crying, and it is then that the victim indicated that the appellant was the person who had raped her, and as a consequence the appellant was arrested, prosecuted and convicted.

When invited to respond to the notice of appeal the learned trial magistrate after seeking guidance from a number of decided cases which included the case of State vs Mutandi 1996 (1) ZLR; State vs Dhliwayo and Anor 1965 (2) ZLR p 101 and State v Ndlovu & Others 1985 (2) ZLR 261expressed a very strong conviction that she may have erred in religiously accepting the victim’s evidence on identification without adopting a cautionary approach.

The position adopted by the trial magistrate was accepted by the State Counsel who submitted that both the conviction and sentence be quashed and the appellant granted the benefit of doubt.

We are equally of the view that the concession made was proper.

Accordingly, it is ordered that:

The appellant’s appeal succeeds.

The conviction and sentence are quashed.

Mathonsi J ………………………………… I agree

T. J. Mabhikwa & Partners, appellant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners