DPP frustrates Zim refugee appeal for rape conviction

Lebogang Mosikare | Friday April 8, 2016 15:51

 

High Court Judge, Lot Moroka weighed in into the matter, saying he would order the registrar to serve both parties with a complete record of proceedings.

“I don’t like anyone to be prejudiced on account of lack of resources or any other invalid reasons by the state,” said Moroka.

This, after the DPP had conceded that they did not obtain full records from the magistrate court.

At that juncture, Moroka said he would order the Registrar to serve both parties with a complete record of proceedings.

Jacob Gumiro, a Zimbabwean refuge, was last year sentenced to 10 years in jail by Chief Magistrate Dumisani Basupi for raping a fellow refugee from Burundi at Dukwi Refugee Camp in January 2012.

 Gumiro told the high court that the matter was set for status hearing, but they were served in the morning (of Thursday) with an incomplete record of proceedings from the magistrate court that convicted him.

“The record of proceedings is defective in that some parts from it are missing from it, mainly the defence side of the case, judgement, mitigation and sentence. This could mean that we will have to send the record back to the lower court,” said Gumiro’.

He added that they were having a bit of problem taking the record back to the magistrate because it took a year for the applicant to be furnished with the record.

He said: “We are a bit skeptical to send it back to the magistrate to complete it because it may take a long time again.”

The applicant further stated that in the next hearing they will apply for bail if they are again furnished with an incomplete record of proceedings.

However Moroka told him not to second-guess what is going to happen during the next mention.

When passing sentence last year, Principal Magistrate Basupi had said that he took into account that the accused is a first offender and is diabetic.

“Offences of rape as stipulated in the penal code are serious offences. As it appeared in the evidence placed before court, the accused used force when he committed the offence.

“It is the duty of the courts to protect women from any form of violence including rape. I found no exceptional extenuating circumstances that may have led the accused to commit the offence,” said Basupi.

He had added that Gumiro’s case is a clear case of a senior abusing his junior.

“She said that at times the accused will approach her and tell her to come and ‘kiss him and do it’ but she refused since she knew the accused’s wife. She also said that at one point she contemplated

quitting her job because the accused was vigorously pursuing her,” said Basupi. Apparently, the woman then started recording the conversations she had with Gumiro with her cell phone, according to Basupi.

Gumiro had argued, in his defence, that he had proposed love to the complainant but she had initially denied, but later accepted on condition that nobody should know about their relationship because he was married.

“He also denied kissing the complainant and having sex with her without consent because he was mindful of the consequences of doing so. He also said that during that fateful day, other people were present and there was no way how he could have raped her in their presence.”

Basupi added: “It should be noted that at one point during trial the accused, through his attorney, applied for the case to be withdrawn because the condom and examination kit were lost but I declined that application.”w

“I found the complainant to be a credible witness who did not contradict herself when giving evidence while the accused gave contradictory evidence. He is therefore guilty of the offence as charged,” Basupi had said. 

Gumiro, a former teacher at Skillshare International School at Dukwi, where  the complainant is a cleaner, is due in court on May 12 for another status hearing.