14-HH-312

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1
HH 312-14
CA 312/13
CRB R 29/13
SAUL MUKARATI
versus
THE STATE
HIGH COURT OF ZIMBABWE
BERE J
HARARE, 20 May 2014
Criminal appeal
B Pesanai, for the appellant
S Fero, for the respondent
BERE J: The facts in this case which has prompted this appeal are most unusual and
are a constant reminder of how gullible some parents can be. The facts as summarised by the
complainant are as follows:Upon noticing some rash on her 13 year old daughter who is the complainant in this
case, the complainant’s mother referred her to the appellant for treatment. The appellant
projected himself as a prophet and the treatment was supposed to take the form of a cleansing
exercise.
Having ensured the complainant was alone the appellant instructed her to remove her
pant and blouse. The appellant further instructed her to kneel down with her hands on the
ground thereby exposing her back to the appellant who was kneeling behind her applying
some medication on her private parts.
The appellant took advantage of the complainant’s position and inserted his erect
penis into her vagina and pushed it hard to the extent that the complainant almost lost her
balance.
The facts as given by the complainant led to the appellant being charged and
convicted of rape as defined in s 65 of the Criminal Law (Codification and Reform) Act [Cap
9:23]
2
HH 312-14
CA 312/13
CRB R 29/13
Despite denying the charge the appellant was convicted and sentenced to 20 years
imprisonment of which 2 years was suspended on the usual conditions of future good
behaviour.
The appeal which is against both conviction and sentence is what has prompted this
hearing.
As against conviction the appellant has criticised the evidence that was accepted by
the court a quo and argued that, that evidence did not support the conviction.
I do not agree. A simple reading of the judgment of the court a quo clearly shows that
its criticism is most unfortunate and amounts to no more than a fishing expedition on the part
of the appellant.
There was in my view a proper and simple assessment of the evidence given by the
complainant and properly supported by the evidence of her 17 year old sister Faith Mutenga
on one side and the evidence given by the appellant on the other.
One gets the impression that this was a well calculated offence by a cunning appellant
who took advantage of an unsuspecting complainant. It is not possible to accept the argument
as put forward by the appellant that the conviction was unsustainable.
Equally true is the fact that given the repetitive occurrence of matters such as this one,
the sentence itself cannot be said to induce a sense of shock and outrage as to warrant
interference from this court.
Those who commit heinous offences of this nature must accept that they cannot avoid
being removed from society for a fairly long period of time.
Such sentences are a desperate response by these courts to the continued and almost
unabated occurrences of such offences.
Consequently, the appeal against both conviction and sentence is dismissed.
IEG Misimbe and Partners, appellant’s legal practitioners
Attorney General’s Office, respondent’s legal practitioners
BERE J ______________________
HUNGWE J agrees __________________________
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