The State versus Thomas Brighton Chirembwe

Between September 2011 and October 2012, the accused broke into domestic premises at night through toilet or kitchen windows or roofs. Armed with items such as a knife, hammer, and a cell phone with torch, he would wake up victims, threaten them with death, and demand money, cell phones and laptops. In selected cases, he also committed rape as a tool to exercise power and control over victims. He was charged with 30 counts combining unlawful entry (section 131(1) & 2 of the Criminal Law (Codification and Reform) Act) and rape (section 65). Of the 30 counts, 13 were rape counts. He was convicted of 21 counts as complainants in 9 counts had moved or were out of the country. His crime spree ended when he returned to premises of a previous victim who had alerted police, leading to his apprehension. Some complainants identified him at an identification parade and he took police to other premises giving indications of how he committed the offences.

• Whether the charges were split unnecessarily between unlawful entry and rape
• Whether the cumulative sentence of 290 years with 60 years suspended was appropriate
• Whether each count of unlawful entry should be sentenced separately from the rape committed at the same premises
• Whether sentences should run concurrently given their similarity in nature and proximity in time
• The appropriate sentencing approach for multiple counts of rape and sexual violence
• The application of constitutional and human rights principles in sentencing for gender-based violence

The convictions on 21 counts were confirmed. The sentence was altered as follows: Counts 1&2: 10 years; Counts 8&9: 10 years; Counts 10&11: 10 years; Counts 13&14: 10 years; Counts 15&16: 10 years; Counts 21&21: 8 years; Counts 23,24,25&26: 15 years. Total of 73 years of which 18 years suspended for 5 years on condition of not committing crimes involving unlawful entry, violence, or sexual offences. For counts 5, 7, 19, 22, 30 (unlawful entry without rape): 3 years each, totaling 15 years to run concurrently with the effective 55 year sentence.

When sentencing multiple counts of rape and unlawful entry arising from related but distinct incidents: (1) Courts must apply a gendered, constitutional and human rights-based approach recognizing rape as a serious form of gender-based violence that violates fundamental rights to bodily integrity, freedom from violence, dignity and equality; (2) While there is no misdirection in splitting charges of unlawful entry and rape, courts must consider the cumulative effect when sentencing each count; (3) Where counts are similar in nature and closely linked in time, sentences should be ordered to run concurrently to avoid excessive cumulative sentences that induce a sense of shock; (4) Sentencing must balance society's interests in addressing pervasive gender-based violence with the individual rights of the accused, avoiding both excessive leniency and disproportionate sentences that serve no purpose beyond shock value; (5) The State has a duty under constitutional and international law to appropriately prosecute and punish perpetrators of gender-based violence as part of its exercise of due diligence in protecting women's rights.

The court made significant observations on comparative sentencing for rape. It critiqued the approach in S v Ndlovu 2012 (1) ZLR 393 and S v Mukome that rape sentences should not exceed those for murder or culpable homicide, and that rape should attract 5-10 years with only very bad cases exceeding 10 years. TSANGA J observed this approach was "akin to comparing oranges to apples" and "skirts the point of the vast implications of sexual violence for the enjoyment of a range of fundamental rights for women and girls." The court emphasized that "an informed assessment of the sentence to be imposed in cases such as this cannot be reached without utilising an engendered approach to this area of criminal law, as well as engaging a constitutional and human rights perspective." The court noted that fear of violence from non-state actors is a defining feature of women's experiences, and that rape emanates from cultural attitudes towards women that permit the use of sex as an instrument of power and control. The court cautioned courts cannot adopt an overly "softly, softly" approach under the guise of comparative sentencing while being oblivious to the reality of pervasive gender-based violence in society.

This case is significant in South African/Zimbabwean jurisprudence for establishing that courts must apply a gendered, constitutional and human rights-based approach to sentencing in cases of sexual violence and gender-based violence. It recognizes that rape is not merely a crime against an individual but a violation of fundamental constitutional rights including bodily integrity, freedom from violence, human dignity, and equality. The judgment emphasizes the State's duty to prosecute and punish appropriately as part of its exercise of due diligence in protecting women's rights under international instruments (CEDAW, ICCPR, Protocol to African Charter). It provides guidance on sentencing multiple counts, rejecting purely mechanical approaches while also cautioning against excessive sentences that serve no purpose beyond shock value. The case balances the need for deterrence in addressing pervasive gender-based violence with principles of proportionality in sentencing.