The State v Tapiwanashe Hove

The accused met the complainant, exchanged greetings, and they went their separate ways. Shortly thereafter, the accused reappeared and attacked the complainant, indicating that he wanted to have sexual intercourse with her. The complainant resisted the attack. During the struggle, the accused tore the complainant's clothes. The complainant managed to end the attack by offering the accused USD10, which he took before leaving. Upon arriving home, the complainant narrated her ordeal to her mother and shop owners, providing a description of the accused that led to his identification and arrest. The accused was convicted by a Provincial Magistrate at Zvishavane of attempted rape following a trial. The magistrate, realizing she lacked jurisdiction to pass the appropriate sentence, referred the matter to the High Court for sentencing under Section 54(2) of the Magistrate Court Act.

• Whether the conviction for attempted rape was proper based on the identification evidence
• What is the appropriate sentence for attempted rape
• Whether attempted rape warrants a sentence similar to actual rape
• The jurisdictional limits of a Provincial Magistrate in sentencing for attempted rape

The accused was sentenced to 8 years imprisonment for attempted rape.

The binding legal principles established are: (1) For identification evidence to be reliable, it is insufficient for a witness to be honest; the witness must have had a proper opportunity to make observations, which must be tested against factors including proximity, visibility, lighting, angle of observation, prior opportunities for observation, and noticeable physical features or clothing. (2) Attempted rape is a very serious offence warranting stiff penalties, though sentences should be less severe than for actual rape to reflect the distinction between the offences. (3) A Provincial Magistrate who convicts an accused but lacks jurisdiction to impose the appropriate sentence must refer the matter to the High Court for sentencing under Section 54(2) of the Magistrate Court Act. (4) Sentencing for attempted rape should reflect the seriousness with which courts view the offence while taking into account mitigating factors such as first offender status and the specific circumstances of the case.

The court observed that the accused was fortunate not to have been charged with robbery in relation to the USD10 taken from the complainant. The court also noted that the complainant had been grossly affected by the accused's conduct and called for a severe penalty, but emphasized that severity must accord with established sentencing patterns for the class of offence. The court referenced that Section 189 of the Criminal Code defines attempt and that penalties are provided in Section 65, though courts have not imposed identical sentences for attempted rape and actual rape because attempted rape is less severe.

This case provides guidance on appropriate sentencing for attempted rape in Zimbabwean law, confirming that while attempted rape should attract severe penalties reflecting its seriousness, there should be a degree of variation from sentences for actual rape. The case also reinforces the procedural requirement that Provincial Magistrates must refer cases to the High Court when the appropriate sentence exceeds their jurisdictional limits. The judgment reaffirms the application of South African precedents on identification evidence (S v Mthetwa and S v Mehlape) in Zimbabwean courts.