SUPREME COURT OF ZIMBABWE
MALABA DCJ, GOWORA JA & HLATSHWAYO JA
HARARE, JULY 2 & DECEMBER 5, 2013
J Dondo, for the appellant
F Kachidza, for the respondent
MALABA DCJ: This is an appeal from the decision of the High Court sitting as an appellate court dismissing an appeal from the decision of the Magistrates Court against conviction and sentence for rape. The appellant was convicted of rape as defined in s 65 of the Criminal Law (Codification & Reform) Act [Cap 9:23] by the Regional Magistrates Court on 25 September 2007. The allegations were that he had, on 4 September 2007 had sexual intercourse with a 77 year old woman, Evenesi Kanyimbo, without her consent. The appellant was sentenced to twenty (20) years imprisonment of which three (3) years were suspended for five (5) years on the usual conditions of good behaviour.
He appealed to the High Court against both conviction and sentence. The appeal against conviction was on four grounds. The first ground was that the learned trial magistrate misdirected herself by convicting the appellant in light of the fact that the appellant gave a version of events which was reasonably possibly true and was not demonstrated to be false by the evidence led during trial.