Tafadzwa Chirimanyemba v The State

### Preamble
1
HH 653-18
CA 103/17
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TAFADZWA CHIRIMANYEMBA

versus

THE STATE

HIGH COURT OF ZIMBABWE

HUNGWE and WAMAMBO JJ

HARARE, 17 July 2018 & 10 October 2018

Criminal appeal

K Makombere, for the appellant

T Mapfuwa, for the respondent

WAMAMBO J: The appellant was tried and found guilty of contravening s 189 (1) (a) as read with s 65 (1) (a) of the Criminal Law (Codification and Reform Act) [Chapter 9:23] attempted rape. He was sentenced to 36 months imprisonment of which 6 months imprisonment were suspended on conditions of good behaviour.

The appellant now appeals against both conviction and sentence. The facts as presented by the State to the Trial Magistrate are that the appellant and complainant are neighbours in the farming area of Banket. Complainant received a letter requesting her to go to Harry Police Base which she did. At the Police Base it transpires that no one had invited her. Complainant was walking on her way back to her home when she was joined by the appellant. A discussion ensued between the two about a land wrangle between complainant and another lady. Appellant suddenly lunged at complainant and started to fondle her breasts and kissing her. The appellant inserted his hand under complainant’s skirt and held her private parts and in the process tearing her panty. Appellant tried to trip her to the ground but she put up a measure of resistance resulting in appellant losing grip and fleeing.

Complainant cried out for help during her ordeal but no one came to her assistance. After appellant had fled she ran to Christopher Jiji holding her torn pant and reported the matter in a tearful stage.

The appellant’s case is that complainant caused his arrest because of a grudge over a piece of land, sold to her by a Mrs Matibiri. Further that complainant was unhappy, over the appellant’s father not assisting her.

It may be necessary to set out from the onset the fact that the appellant’s father is a village head in the community where the appellant and complainant reside. It also turns out that the letter which invited complainant to the police Base was written by the appellant.

While the appellant confirms that he met complainant on her way from the police station he is emphatic that he never attempted to rape her. In fact he alleges that in the course of what he describes as an argument with complainant she threatened to fix him by making rape allegations against him.

Against the above background the appellant raises a number of technical grounds in his notice of appeal namely that the trial court descended into the area, did not assist the unrepresented appellant and did not afford the appellant the right to re-examine himself after cross-examination.

The State in its response acknowledged that the appellant did not re-examine himself. A reading of the record does not reflect that the court descended into the arena. To demonstrate this the court asked of complainant a number of questions to clarify the evidence. There is nothing in the nature of the questions suggesting bias on the part of the Magistrate.

The trial court asked complainant to clarify whether she saw the appellant on her way to the police Base and how far he was. Further  it asked what time complainant left her home and what time she saw the appellant seated under a tree. Questions were also asked by the court on what distance she and the appellant walked before he grabbed her and the description of the place they walked. Complainant was also asked if she cried for help and whether there were any struggle marks. It was asked of the complainant for how long she had known the appellant and how they related. It was asked of complainant if she established that it was the appellant who wrote the letter involving her to the police station. Lastly the trial court asked if the appellant attempted to lift her skirt.

The nature of the questions asked of complainant are clearly meant to illuminate the facts to the Trial Court.  The questions seek clarity on the circumstances and are not prejudicial to any of the parties.

Some of the questions had already been answered by Christopher Jiji and some confirmed by appellant himself.

The Trial Court only asked two questions to Christopher Jiji on the issue of what he was told by complainant and if anyone went to the scene.

We found that the circumstances as outlined above do not come near what is alleged to be descending into the arena by the trial court.  The allegation that the trial court failed to assist an unrepresented appellant is not borne, by the record. Mr Makombere for the appellant pointed out that the Trial Court did not assist appellant when cross-examining the two State witnesses.

The purpose of cross-examination was clearly explained to the appellant and he indicated that he understood.  To that end, appellant managed to cross examine complainant for about four and half pages on relevant issues, such as how he tore complainant’s panty and where it was torn, how he fondled her breasts, whether he lifted her clothes, whether he produced his penis.  The nature of the questions clearly reflect that appellant was not only aware of the nature of the offense he faced but that he was also aware that he needed to cast doubt in the Trial court’s mind to his advantage

In the circumstances of this case it has not been demonstrated that because of the fact that appellant did not re-examine himself it was an irregularity going to the root of the conviction to such an extent that the conviction must be quashed.

It must be noted that it is not every irregularity that results in a quashing of the conviction. See S v Shikunga & Anor 1997 NR 156 (SC) a Namibia Supreme Court case where MAHAMED CJ reviewed case law from South Africa, Canada, The United States of America, Jamaica and Australia on the question of whether or not a failure of justice has resulted from a trial irregularity.

The trial court closely examined the totality of the evidence before convicting the appellant. There was no link between the alleged grudge and the offence. The probabilities also favour complainant’s version.

Appellant wrote a letter to the complainant for her to proceed to the Police Base where upon arrival she discovered that she had not been summoned to go there by the Police. Along the way from the Police Base complainant met appellant who joined her and later he committed the offence as already described. Appellant embraced complainant, kissed her, fondled her breasts and placed his hands on her private parts yanked her panty resulting in them getting torn. Complainant grabbed appellant’s private parts resulting in him releasing her and fleeing.

Jonathan Burchell in the South African Criminal Law and Procedure, Volume 1, General Principles of Criminal Law, 4th edition at page 557 divides attempts into two types namely completed and uncompleted attempts. At page 557 an example of a completed attempt is given namely where X fires a gun at but the bullet misses.

A discussion thereafter follows on uncompleted attempts under which the instant matter falls. At page 560 it is noted as follows:

“The issue depends largely upon whether the test is subjective or objective. The purely subjective test starts and remains with the state of mind of the accused. If he or she intended to commit the crime in question, the accused will be liable for attempt as soon as he or she does an act in furtherance of that intention, no matter how remote the act may be from the completion of the crime.

On the other hand the objective test “being concerned principally with the danger to the interests of the community involved in different kinds of conduct” requires that the acts of the accused in pursuance of his intention to commit the crime in question must have proceeded a considerable way towards the commission of that crime in order to attract liability.

A subjective approach has been adopted by the Appellate Division for attempts to commit          	crimes that are impossible to commit. In other cases of attempt however our courts have 	preferred the objective test in judging the conduct of the accused, for following the English 	and American law, a distinction is made between those acts which are remote from and those 	which are proximate to 	the commission of the crime itself.

The former are merely acts of preparation and do not entail liability even if accompanied by 	intention, it is only acts immediately connected with the consummation of the completed acts 	which amount to attempts.”

An application of the test as formulated above reflects that by fondling complainant’s breasts, kissing her and placing his hand on complainant’s private parts in such a manner that he tore complainant’s pants went beyond acts of preparation. Only when complainant grabbed appellant’s private parts did he let go.

We are satisfied in the circumstances that the appellant committed attempted rape.

The ground raised on sentence, has not been justified through the heads of argument or by oral argument.

To the contrary attempted rape is a serious offence. It indignifies and brings shame to the victim. It also creates that suspensive fear of what is going to happen next or what could have happened. It is clearly traumatic.

In this case the offence was committed against a 56 year old widow who had to make a report to a male neighbour while holding a panty torn by the appellant.

The sentence passed is within the vicinity of other related cases, if not on the lenient side. See John Magodora v The State HH 245/15, The State v Trymore Kamudzandu HH 215-17.

In the result we dismiss the appeal against both conviction and sentence.

HUNGWE J agrees:………………………………………….

Muchineripi and Associates, appellant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners