Lovemore Tapiwa Chipunza v The State

### Preamble
1
HH 304-2012
CRB B247/12
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LOVEMORE TAPIWA CHIPUNZA

versus

THE STATE

HIGH COURT OF ZIMBABWE

MWAYERA J

HARARE, 2 April 2012

Bail Pending Appeal - Ruling

T Mupita, for the applicant

Ms F Kachidza, for the respondent

MWAYERA J: The applicant approached the court with an application for bail pending appeal. The respondent (State) opposed the application. Both the applicant and respondent filed documents for and against bail respectively. They both further orally addressed the court. The court was inclined to agree with the respondent’s argument that the applicant was not a suitable candidate for bail pending appeal.

In coming up with the dismissal of the applicant’s application the court juxtaposed the applicant’s right to individual liberty on one hand and the interest of administration of justice on the other hand. The primary factors for consideration being (1) whether or not there are prospects of success on appeal, the risk of abscondment and the likely delay in prosecution and finalisation of appeal.

It is important to note that these factors are to be considered cumulatively. The application for bail pending appeal from the applicant’s perspective was in respect of both sentence and conviction.

I propose to deal with prospects of success visa vis sentence first. Having been convicted of rape the applicant was sentenced to thirteen years of which six years imprisonment was suspended for five years on the usual conditions of good behaviour, leaving an effective seven years imprisonment. The complainant was disabled in that she was audio challenged and hard of hearing. (Deaf and dumb) to the applicant’s knowledge since they were neighbours. The circumstances surrounding the commission of the offence are such that the applicant took advantage of the vulnerability nature of the complainant and sexually ravished her without consent. The trial court cannot be said to have exercised its sentencing discreation improperly or unreasonably as to warrant interference with the sentence imposed. There is no likelihood of the sentence imposed being interfered with.

Accordingly no prospects of success on appeal against sentence.

Now turning to conviction it is apparent from the record of proceedings of the trial court that the evidence adduced from both the State and defence point of view (a bare denial of rape) is supportive of the conclusion reached by the court of conviction of rape.

The applicant did not dispute sexual intercourse with the complainant but argued it was consentual sexual intercourse. It is apparent from perusal of the record that especially the complainant’s testimony that when the accused (now the applicant tripped her to the ground and inserted his male organ into her, she tried to shrug him off but failed because she did not like it. She tried to push him off but he over powered her. The fact that the applicant called the complainant to where he was and she went can certainly not be taken to be consent to sexual intercourse. The complainant knew the applicant and when he called her he did not disclose his intention to have sexual intercourse with her. When he engaged in the act she protested in the manner expected of a deaf and dump juvenile. The complainant timeously and voluntarily made a report of what had transpired to her sister and from the record of proceedings she was only assaulted after she had reported and it is clear that the aunt assaulted her after the report accusing her of letting people touch her.

The evidence from the applicant on the other hand is that he proposed love to the complainant and she agreed. He then for purposes of bail sought to rely on being mistaken that the complainant had agreed because of his limited knowledge of sign language. On one breath he stressed that the complainant was his girlfriend and they communicated well and on the other sought to portray himself as having laboured under a mistake because of limited knowledge of the sign language which the complainant used. Equating agreeing to go to the road or maize field where the applicant called the complainant to be consent to sexual intercourse is not only absurd but illogical. From the totality of the evidence adduced in the court a quo from the State witness and the applicant himself the evidence is clearly supportive of the conviction retained by the trial court. It is apparent from the evidence that the applicant knew that the complainant was not consenting to his sexual moves and that he had the intention to sexually ravish her hence called her under pretext of engaging in conversation, when he knew her physical challenges. He then took advantage of the status of the complainant and raped her in the maize field. The applicant well knowing the handicap on the complainant set to rape the complainant and sought to portray there was a love affair and consentual intercourse. The trial court in its judgment clearly analysed the evidence and come up with a conviction supported by evidence such that there is no likelihood of interference with the reasoning and decision of the trial court by another court. The fact that there are no prospects of success on both conviction and sentence means that even if it is accepted there are delays in hearing of appeal there will be no prejudice to the applicant in that the fact that there are no prospects of success means that there are higher chances of abscondment on the part of the applicant. This is a case were after considering the interest of the right of the individual to liberty on one hand and interest of administration of justice on the other the situation demands that the applicant is not a suitable candidate for bail pending appeal. The offence which the applicant stands convicted of is serious and the appropriate sentence is imprisonment. These factors coupled with the fact that there are no prospects of success on appeal will certainly act as an inducement for abscondment on the part of the applicant. Once there is risk to abscond then it follows the ends of justice are in jeopardy. Upon considering the totality of the application before the court is apparent the grounds of appeal suggested by the applicant are just bold and general assertions that the court a quo erred. This further buttresses the fact that there are no prospects of success on appeal.

Accordingly having considered the interest of upholding the interest of justice and safeguarding the liberty of the individual it apparent that the interest of justice will not be protected by admission of the applicant on bail. The factors to consider in applications of this nature were lucidly underscored in the case of S v Williams 1980 (2) ZLR 468 and S v Dzawo 1988 (1) ZLR at 556. The factors namely:

Likelihood of abscondment

Prospects of success on appeal

Right of an individual to liberty

The potential length of delay before appeal is heard

These factors were culmilatively considered in relation to the present case and it is apparent there are no prospects of success on appeal and that such a factor plus the lengthy imprisonment will induce the applicant to abscond.

Having said that it follows as that it is not in the interest of administration of justice that the applicant be admitted to bail and for these reasons the application is dismissed.

Mapaya & Partners, applicant’s legal practitioners

Attorney General’s Office, respondent’s legal practitioners