Prince Dube v The State

### Preamble
1
HCC51/25
HCCR518/25
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PRINCE DUBE

versus

THE STATE

HIGH COURT OF ZIMBABWE

MUZOFA & BACHI-MZAWAZI JJ

CHINHOYI, 12 September 2025

Criminal Appeal

MUZOFA J:

[1] After hearing both parties’ submissions, this appeal against conviction and sentence was dismissed in an ex-tempore judgment. The appellant has requested for the written reasons which are provided herein.

[2] The appellant was jointly charged with five others on two counts of robbery and one count of rape in contravention of s126 and s65 of the Criminal Law [Codification and Reform] Act (Chapter 9:23) respectively, hereinafter referred to as the Criminal Code. The State withdrew charges before plea against four of his co-accused. The trial proceeded against the appellant and one co- accused.

[3] After a full trial, the Court a quo, convicted the appellant on both counts. He was sentenced to 8 years imprisonment with 3 years conditionally suspended on the robbery charges. On the rape charge, an effective sentence of 12 years imprisonment was imposed. Effective sentence is 17 years.

Factual background

[4] The common cause facts are that on the 10th of January 2023 at St Ives Chinhoyi, the two complainants who are married were fast asleep in the comfort of their home. In the middle of the night some intruders forcibly gained access into their house. They harassed the couple and assaulted them demanding money. They even threatened to kill one of their children. When they got the money and the cell phone, pots and other items one of them raped the mother of the house on the bed while her husband and children were under the bed.

[5] Subsequently the appellant and his accomplices were arrested. The main issue before the Court a quo was whether the appellants were properly identified as the assailants.

[6] The appellant denied the charges and indicated that he was assaulted when he was taken for indications. He said the recovered Dolphin pots belonged to his wife. They were not positively identified as they were ordinary pots that could be found in any home. He said he was assaulted until he admitted the charges.

[7] In coming to its decision, the Court a quo warned itself of the difficulties associated with identification evidence and the attendant risk of wrong identification by a genuine witness. It referred to leading cases on identification. It found the two complainants credible, that they positively identified the appellant. It also took into account that the pots allegedly stolen from the complainants were recovered from the appellant. In addition, that the appellant’s co accused confirmed that the appellant was part of the assailants. It convicted the appellant and sentenced him as already set out.

[8] Dissatisfied by the outcome the appellant noted this appeal. The notice of appeal sets out eight grounds of appeal impugning literally all the findings by the Court a quo. The grounds of appeal challenge the conduct of the identification parade and the indications, that the complainants’ evidence was inconsistent therefore they were not credible, that the recovered pots were not positively identified by the complainants among other inelegantly set out issues.

Proceedings before this Court.

[9] In his oral submissions, the appellant emphasized that the complainants saw him at court before the identification parade. He also went into detail on what transpired in the room where the offence was committed, that there was no illumination. He urged this court not to place much emphasis on the pots that were recovered from his place as they were neither positively identified by the complainants nor were they unique. Such pots can be found in any home. They belonged to his wife.

[10] As against sentence, he submitted that the Court a quo failed to take into account the highly mitigatory factors, as a result it imposed a sentence that induces shock. He summarised his grounds of appeal against sentence that, the Court ‘used a hammer to crack and egg’, whatever that means.

[11] The State opposed both appeals. On the conviction, the State opined that, although it was not canvassed whether the complainants had described the appellants before arrest as proposed in State v Duri HH 410-23, the State was convinced that there was evidence beyond a reasonable doubt that the appellant was one of the assailants. The Court a quo was alive to the difficulties associated with identification evidence and it properly evaluated the evidence. We were urged not to interfere with the factual findings on credibility since there was no misdirection.

[12] On sentence, the State submitted that since sentencing is in the discretion of the trial Court, an appeal Court can only interfere where a misdirection has been established. In this case no such misdirection was pointed except some dust that was raised. Generally, by its nature robbery involves premeditation and invasion of privacy it is a serious offence which attracts a custodial sentence. It relied on the timeless sentiments in South African Criminal Law and Procedure – Volume II – Common Law Crimes by PMA Hunt and 3rd Ed by JRL Milton at page 660 on the seriousness of the offence. See also the case of The State v Makunike 2015 (2) ZLR 404.

[13] As regards rape, the State submitted that it was committed in the course of a robbery and the Court a quo imposed a sentence within its jurisdiction. There was no misdirection. Both appeals must be dismissed.

Factual and legal Analysis

[14] Before addressing the merits, l am compelled to comment on the grounds of appeal. An appeal Court is always in a quandary when dealing with appeals by unrepresented appellants. The majority of the grounds of appeal simply hang in there. They are usually not properly couched. In the interest of justice, the Court salvages some issues for determination in order not to prejudice the appellant bearing in mind that they are not legally trained.

[15] Even if it is now a broken record that grounds of appeal must be short and concise, it must be stated again. In Dr Nobert  Kunonga v The     Church   Of   The Province Of  Central     Africa SC 25-17, GARWE JA (as he then was) extensively addressed the issue on what constitutes valid grounds of appeal. At paragraph [24] he referred to the remarks of the court in Songono v Minister of Law and Order 1996(4) SA 384 (Eastern Cape Division) the Court at p 385 G-H noted,

“… it has been held that grounds of appeal are bad if they are so widely expressed that it leaves the appellant free to canvass every finding of fact and every ruling of the law made by the court a quo, or if they specify the findings of fact or rulings of law appealed against so vaguely as to be of no value either to the Court or to the respondent, or if they, in general, fail to specify clearly and in unambiguous terms exactly what case the respondent must be prepared to meet …”

See also Chinganga v Shava &Ors SC 12/22, Bonde v National Foods & Ors SC11/21

[16] The first ground of appeal is a mixed bag. The appellant refers to a charge of unlawful entry which eventually linked him to these charges. He then refers to a confession, yet before the Court a quo there was no confession that was relied on. In the same ground of appeal he refers to the confession by his co accused and then to the pots that were recovered.

[17] This is exactly what the Court lamented in the Chinganga case (supra) that it is not for the Court to sift through the ground of appeal and decide what the appellant seeks to appeal against. The ground of appeal is so wide that the appellant can address the court on several issues from a single ground of appeal. This is objectionable.

[18] The second ground of appeal impugns the identification parade, that it did not comply with the rules and procedures. Nothing specifically was alluded to as the irregularity in the process. Even after the oral submissions, the Court remained at sea on what the appellant impugned. He did not even address the Court on the identification parade save to indicate that the complainants had seen his face on social media. I will revert to the issue later in the judgment. We agree with the State there is no valid ground of appeal. No misdirection was highlighted.

[19] Still on the identification parade the appellant also raised issue that the complainants had seen his face on social media in a video that went viral. This was set out in underground number seven. Surprisingly before this Court he said the complainants had seen him in Court. Obviously, he had forgotten what he said in his grounds of appeal. There was no consistency as to where, if at all the complainants saw him. He did not even seek to reconcile the two versions.

[20] The assertion is completely false and unsupported by what transpired during the trial proceedings. In the first place the appellant did not raise the issue as part of his defence. He raised it under cross examination by the Prosecutor. The Court appreciates that the appellant was not legally represented but this was a key issue that he should have raised. It could not have escaped his mind.

[21] As if that was not enough, when the two complainants gave evidence, they were specifically asked if they saw the appellant before the identification parade. They said they had not seen him. He had opportunity to cross examine the two complainants; he did not even ask them about the video clip that went viral.

[22] Similarly, the investigating officer Zacharia Mudzingwa gave evidence he did not refer to any posting on social media. Even if this Court would assume that the officer downplayed the evidence of such posting, the appellant himself did not even suggest what he raises before this Court. In essence the appellant has raised a factual issue that he did not raise let alone cross examine the State witnesses on. The appellant would not expect this Court or the Court a quo to accept the point raised in the absence of any comments from the witnesses.

[23] Under cross examination, he said the photograph that circulated had four people. Asked why the complainants identified only him if they had seen four people he could not explain. The only conclusion that we come to is that the appellant’s pictures were circulated on social media is incorrect. The ground of appeal is dismissed.

[24] Although the inconsistent statements on where the complainants saw the appellant prior to the identification parade and the failure to cross examine the witnesses on the issue do not prove that he is guilty, an adverse inference can be drawn against him. This is what the court grappled with in S v Makoto HH 351/25 where the accused’s defence outline and his evidence in court was at cross-purpose. The court noted that such conduct ‘raises suspicion, affects credibility, and may strengthen the prosecution’s case. Courts rely on consistent, truthful testimony, and when an accused’s statements shift dramatically, their defence becomes questionable’.

[25] The appellant also raised issue that the Court a quo relied on a confession by his co accused to convict him. To put the issue into its context, I must refer to the background facts once again. The co accused in his defence said he was a taxi driver. He was hired by one Brian to take him to St Ives. He dutifully transported Brian; he was told to drop him at some spot and wait. He did.

[26] After sometime Brian returned with other men carrying pots and some stuff. Brian said he had no money to pay for the taxi fare. Brain gave him a cell phone to hold on to until he paid him cash. The appellant was one of the men who returned with Brian. The cell phone was eventually positively identified by the second complainant as hers. It had her name inscribed on it and she knew the serial numbers.

[27] In terms of s259 of the Criminal Procedure and Evidence Act (Chapter 9:07) (the CPE&A) a confession by a person is inadmissible against any other person. It behoves this Court therefore to make a finding whether the appellant’s co accused made a confession.

[28] The CPEA does not define a confession. The Black’s Law Dictionary defines a confession as ‘a statement admitting or acknowledging all facts necessary for a conviction of a crime’. It is apparent that the co accused did not confess to any crime. His statement does not fall within the definition of a confession. It means the court a quo did not rely on a confession by the co accused.

[29] Having addressed the peripheral issues raised by the appellant what remains is to determine the real issue whether there was proof beyond a reasonable doubt that the appellant was one of the assailants.

[30] The two complainants gave evidence and said they identified the appellant. The Court a quo accepted that there was some illumination in the house. The appellant referred us to the complainants’ evidence that they said the intruders had torches on their foreheads, there was no way they could identify him.

[31] We find no misdirection in the Court a quo’s findings on the identification of the appellant. It properly took into account the circumstances under which the appellant was identified as guided in a line of cases including S v Dhliwayo & Anor 1985 (2) ZLR 101 (S) at 107A-D. It considered that although the appellant was unknown to the complainants they had ample time to observe him within close range and the room was illuminated.

[32] The two complainants corroborated each other on critical issues. They both said the appellant had a torch on his forehead. When the intruders entered the house there was no light. The intruders switched on the light. There is no doubt in our minds that there was adequate lighting in the room. The intruders searched for money from different places as directed by the complainants. One of them took keys from the door which had the car keys and went outside to search for money from the car. They counted money while in the room and identified the notes. All this can only happen where there is lighting.

[33] Erida the complainant in the rape charge even described the appellant’s clothes including his pant, she said he had a brown pair of pants. This was not disputed by the appellant.

[34] From the time the offence was committed the complainants were clear that they could identify three of the intruders. At the identification parade they identified the appellant by two distinctive features, a scar on the forehead and a gap between his teeth. The intruders spent about an hour in the house that is enough time to observe a person. They also communicated with each other which resulted in the identification of the gap between the teeth.

[35] Although the medical affidavits produced before the Court a quo did not link the appellant to the offence. They confirm the complainants’ evidence that they were attacked as described. The offence took place on the 10th of January and they were examined on the 11th of January. Both complainants sustained injuries. Erida who was raped had a fresh tear that was bleeding. Of course, she was a married woman but the evidence confirmed recent sexual activity. She had no reason to allege that she was raped out of spite.

[36] Nothing turns on the non-availability of the rape kits or who was supposed to supply such rape kits. The appellant’s ground of appeal on this issue has no merit. The bottom line is that there were no rape kits. Nothing to the contrary was shown before the Court a quo. The police intended to secure this conclusive piece of evidence but resource constraints scuttled the efforts. Non availability of rape kits whether at Police or hospitals is cause for concern. Their availability assists to secure conclusive scientific evidence in rape cases.

[37] As regards the pots the Court a quo accepted that the officer who recovered the pots said the appellant’s wife indicated that they were brought by the appellant some four days before. The difficulty with this evidence is that it was not established when the pots were recovered, it was not even established whether they were all new. The pots were produced in Court; the Court’s duty was to record the condition of the pots as it perceived them. The Court a quo did not address its mind on the challenged indications. We agree with the appellant the pots provide little or no evidence to incriminate the appellant. However, that was not the only evidence.

[38] The cumulative effect of the evidence before the Court a quo shows that the appellant

committed the offence. We find no misdirection.

Ad Sentence

[39] Sentencing is within the province of the trial Court. This was succinctly stated in Munakanwe v The State SC 121/23 where the Supreme Court expressed itself as follows,

‘The position is settled in our law that sentencing is, first and foremost, pre-eminently the discretion of the trial court.  The purpose of discretion is certainly to allow the sentencer to select the sentence which he or she believes to be most appropriate in the individual case having regard to the facts and the circumstances of the offender.

As to when an appeal court can interfere with the discretion of a trial court, it is also settled that interference can only be done where the sentence is disturbingly inappropriate or where the discretion has been exercised capriciously or upon a wrong principle.  The law is impressively captured by MALABA DCJ (as he then was) in Muhomba v The State SC 57/13 …’

[40] Following that guidance, in this case the appellant was convicted of two counts of robbery. The sentence for robbery committed in aggravating circumstances under s 126 (2) (a) of the Criminal Code is imprisonment for life or any definite period of imprisonment. In other forms of robbery, the penalty is a fine not exceeding level fourteen or not exceedingly twice the value of the property that forms the subject of the charge, whichever is the greater.

[41] In terms of s 126 (3) of the Criminal Code, a robbery is committed in aggravating circumstances if the convict or his or her accomplice possessed a firearm or a dangerous weapon; or inflicted or threatened to inflict serious bodily injury upon any person; or killed a person during the commission of the offence. In terms of the sentencing guidelines, a robbery is committed in aggravating circumstances if high value goods or sums were stolen or targeted; or if serious injury was inflicted or threatened; or if a person died. In the circumstances of the present case the learned regional magistrate determined that the robbery was committed in aggravating circumstances. His finding was based on the fact that the appellant and his accomplices were armed with machetes and a knife which are dangerous weapons. They assaulted the complainants, the medical reports showed that the complainants sustained serious injuries though not life threatening.

[42] It cannot be overemphasized that robbery is a serious offence and as correctly pointed by the Court a quo it involves premeditation. The offence was committed in the presence of the couple’ two young children which obviously traumatised them. The Court imposed a sentence within its jurisdiction and cannot be faulted. We take note that the value of the property stolen is not on the high side, however the aggravating circumstances call for a custodial sentence.

[43] As regards the rape charge where the offence is committed in aggravating circumstances a person may be sentenced to life imprisonment or any definite period of imprisonment of not less than fifteen years. Where there are no aggravating circumstances, to a period of not less than five (5) years and not more than fifteen (15) years.

[44] What constitutes aggravating circumstances is listed in ss2 of s65 of the Criminal Code. In this case the Court a quo identified such factors. The appellant was armed. The degree of force that was used, the complainant sustained a tear on her private parts despite the fact that she was a married woman who had given birth. The complainant’s skirt and pant were ripped by a weapon; she was assaulted on her thighs. The appellant was aged 23 years by then, he was fairly young and he raped a married woman in the presence of her husband and children. Surely that was inhuman and degrading. The husband and the children were under the bed while their mother and wife was being raped on the bed. Such inhuman conduct must be censured and the Courts must play its part to curb it by imposing custodial sentences. The personal mitigatory factors placed before the Court a quo pale into insignificance in view of such aggravating circumstances. We find no misdirection in the sentence.

[45] In the whole, the globular sentence of 17 years for two counts of robbery and rape both committed in aggravating circumstances does not induce a sense of shock. See generally S v Kufandada HH233/25 on the approach to sentence on rape and robbery. Retribution is still part of our criminal justice system and long custodial sentences can be imposed in deserving cases. The justice delivery system must ensure that the public is protected and feel safe in their homes.

From the foregoing the Court dismissed the appeal against both conviction and sentence.

The National Prosecuting Authority, the State’s legal practitioners.

Bachi–Mzawazi J            Agrees