THE State V Tapiwanashe HOVE

### Preamble
1
HB 163/25
HCBCR 4253/25
---------


THE STATE

Versus

TAPIWANASHE HOVE

THE HIGH COURT OF ZIMBABWE

NDUNA J

BULAWAYO 3 OCTOBER 2025

Reasons for Sentence

NDUNA J: The accused was convicted by a Provincial Magistrate at Zvishavane on one count of attempted rape. She realises that she did not have the jurisdiction to pass the appropriate sentence. She then refers the matter for sentence in terms of Section 54(2) the Magistrate Court Act [Chapter 7:10].

The accused was convicted following a trial at the court aquo. The accused met the complainant and passed greetings. They went their separate ways. Upon walking for a short distance, the accused reappeared and commenced to attack the complainant. During the attack, the accused indicated that he wanted to have sexual intercourse with the complainant. The complainant resisted the attack. She managed to buy her peace by offering USD10 to the accused. The accused took the USD10 and then went away. Prior to that the two had struggled with the accused on the offensive. He tore the clothes worn by the complainant.

Upon her arriving home, she narrated the ordeal which she had gone through. She described the accused to her mother and to some shop owners. The accused was then identified and his arrest was initiated. She correctly described the accused such that the persons to whom she had described her assailant were quick to know that it was the accused.

It is very important in criminal proceedings that a witness makes a positive identification of the person they claimed was the perpetrator. In S v Mthetwa 1972 (3) SA 766 (A) the court adverted to the approach to be adopted when identification of an accused is at issue;

‘Because of the fallibility of human observation, evidence of identification is approached … with some caution. It is not enough for the identifying witness to be honest: the reliability of his observation must also be tested.’ How is this observation tested?

In S v Mehlape 1963 (2) SA 29 (A), it was held that it should not be enough for a witness to be honest but in the circumstances, he must have had ‘a proper opportunity’ to make his observations and that his observations can be relied on. The court further held that such observations should be tested against ‘proximity of the persons, or the visibility, or the state of the light, or the angle of the observation, or prior opportunity or opportunities of observation or the details of any such prior observation or the absence or the presence of noticeable physical or facial features, marks or peculiarities, or the clothing or other articles such as glasses, crutches or bag, etc, connected with the person observed, and so on.’

Witnesses should be asked by what features, marks or indications they identify the person whom they claim to recognise. Questions relating to height, build, complexion, what clothing he was wearing and so on must be put.

A reading of the record of proceedings shows that all these were catered for. In this case the accused did not dispute the evidence of the witnesses meaningfully. It is therefore indeed that the accused was correctly identified by the witness and his conviction is proper.

In The State v Trymore Kamudzandu HH215/2017 the accused was convicted of attempted rape and sentenced by a Senior magistrate. On review, the court stated the following withholding its certificate;

This is a case which warranted the imposition of a stiffer penalty which is well beyond the jurisdiction of even a provincial magistrate. Therefore, this is not a case which should have been dealt with by a senior magistrate or by a provincial magistrate, but by a regional magistrate. In the circumstances of this case a sentence in the region of 8 to 10 years imprisonment with 3 to 4 years thereof suspended on condition of future good behaviour would have met the justice of the case.

The offence of attempted rape is a very serious offence for which the legislature has prescribed very stiff penalties. The court is there to impose a sentence which may be equal to that imposed for rape.

189 Attempt

(1) Subject to subsection (1), any person who⎯

(a) intending to commit a crime, whether in terms of this Code or any other enactment; or

(b) realising that there is a real risk or possibility that a crime, whether in terms of this Code or any other enactment, may be committed; does or omits to do anything in preparation for or in furtherance of the commission of the crime, shall be guilty of attempting to commit the crime concerned

The penalties are provided in Section 65 of the Criminal Code. However, courts have not imposed the same sentence as in attempted rape and the actual rape. This is so because the offence of attempted rape is less severe than that of rape. But its seriousness is not lost. Further to this, the accused was very lucky that he was not charged with the robbery of the USD10 which he got from the complainant.

The State v Ngonidzashe Nkomo and Other HB154/24 outlines the proper sentences which can be imposed on a person convicted of attempted rape. It notes that for attempted rape no person has been sentenced to the same severe penalties with a person convicted on the actual rape. There should be a degree of variation for such offences. However, the sentence must reflect the seriousness with which the courts view the offence of attempted rape. The Sentencing Guidelines also lists the considerations which must be made and taken into account for rape. These must the same as with attempted rape. It means therefore that the accused stands convicted of a very serious offence. The complainant narrates that she has been grossly affected by the conduct of the accused towards herself. She calls on for the court to impose a very severe penalty on the accused. It must be stated that the severity of any penalty must be in accordance with the pattern of sentencing for a class of the offence before the court.

I have also taken note of the fact that the accused is a first offender. He is unmarried and has no children.

It is therefore proper that the accused is sentenced to a term of imprisonment in the following terms: -

8 years imprisonment