HB 116-18 CLIFFORD MASUKU versus THE STATE

CLIFFORD MASUKU

versus

THE STATE

 

HIGH COURT OF ZIMBABWE

MATHONSI AND TAKUVA JJ

BULAWAYO 14 MAY 2018 AND 17 MAY 2018

 

 

Criminal Appeal

 

B Madziba for the appellant

T Muduma for the respondent

 

 

MATHONSI J:          The then 42 year old appellant was convicted by the regional court at Bulawayo on 12 September 2012 of one count of rape as defined in section 65 of the Criminal Code [Chapter 9:23] and sentenced to 15 years imprisonment of which 5 years imprisonment was suspended for 5 years on condition of future good behaviour.  He has appealed to this court against both conviction and sentence.

The essence of his attack on the conviction is that the complainant was not a competent witness and therefore should not have been allowed to testify in a court of law by reason of mental incapacity.  The other two state witnesses who corroborated the complainant’s evidence could not have been credible as they narrated only what was said to them by the incompetent complainant.  The court a quo also erred in dismissing the appellant’s defence which was corroborated by her 14 year old daughter, namely that at the time of the alleged offence he had been soundly sleeping in his bedroom while his daughter stood sentinel by the sitting room watching television.  He therefore could not have raped the complainant on the same sofas and in the same room occupied by his daughter.

Regarding sentence, the appellant takes the view that it is unduly harsh considering his personal circumstances.  It should be substituted with one of an effective 4 years imprisonment.  The appeal is contested by the state which supports both the conviction and sentence.

 

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2018