News / Local
Tomana's appeal in rape case thrown out
30 Nov 2015 at 00:38hrs | Views
THE Bulawayo High Court has dismissed an application by Prosecutor-General Johannes Tomana who sought a retrial of Johanne Marange Apostolic sect leader, Clement Momberume, following his recent acquittal for rape. Momberume, who was facing a charge of allegedly luring his nephew's wife to a city hotel where he raped her, was in July discharged at the close of the state case by Bulawayo regional magistrate Mark Dzira.
The magistrate concluded that the State had failed to prove a prima facie case against Momberume and acquitted him of two counts of rape. The ruling by Justice Francis Bere follows a chamber application by Tomana challenging Dzira's ruling, arguing that the magistrate was misdirected.
"I'm unable to find any traces of misdirection in the decision arrived at by the court aquo and I accordingly decline to grant the relief sought. The decision of the court-a-quo is confirmed," ruled the judge. In the papers before the courts, Tomana is the appellant while Momberume was cited as the respondent.
Timothy Makoni from the Prosecutor-General's office filed the application on behalf of Tomana. He sought an order quashing Dzira's ruling and remitting the matter back to the regional court for continuation of trial.
"It's the acquittal and the appellant's dissatisfaction with it that forms the basis of this application. The court-a-quo misdirected itself by acquitting the respondent yet the State had clearly established a prima facie case against the respondent and as such he ought to have been put to his defence," argued Tomana.
He said the magistrate who presided over the case erred by rejecting the evidence given by the complainant's husband.
"The court-a-quo erred by disregarding the evidence of the complainant's husband in as much as it proved that the complainant made several attempts to communicate about the abuse. The court erred by relying on conjecture to the extent that the complainant was having a relationship with the respondent," said the Prosecutor-General.
"The appellant seeks leave of this court and genuinely seeks to test the correctness of the judgment of the court-a-quo." Momberume was accused of raping his nephew's wife at a hotel in Bulawayo on the pretext that he was prophesying on her. The court heard that on April 9, 2013, Momberume met the woman at TM Hyper Supermarket and took her to the hotel.
The two sat in the lounge during which Momberume prophesied about the woman's family issues, saying she needed cleansing as he alleged that her husband kept a two-headed snake in Mutare.
Momberume then allegedly gave her a drink which she took and started feeling dizzy. Momberume asked the woman to follow him to his hotel room where he allegedly undressed and raped her once.
The woman later gained consciousness and found herself naked with water all over her body. Momberume called the woman on the next day saying he had confessed to her husband and that they were supposed to meet at the same hotel.
Momberume met the woman at the hotel where he again allegedly offered her a drink which she took and felt dizzy. Momberume placed her on the bed and allegedly raped her once again and told her to go home. The woman narrated the ordeal to her husband and a report was made leading to Momberume's arrest.
The magistrate concluded that the State had failed to prove a prima facie case against Momberume and acquitted him of two counts of rape. The ruling by Justice Francis Bere follows a chamber application by Tomana challenging Dzira's ruling, arguing that the magistrate was misdirected.
"I'm unable to find any traces of misdirection in the decision arrived at by the court aquo and I accordingly decline to grant the relief sought. The decision of the court-a-quo is confirmed," ruled the judge. In the papers before the courts, Tomana is the appellant while Momberume was cited as the respondent.
Timothy Makoni from the Prosecutor-General's office filed the application on behalf of Tomana. He sought an order quashing Dzira's ruling and remitting the matter back to the regional court for continuation of trial.
"It's the acquittal and the appellant's dissatisfaction with it that forms the basis of this application. The court-a-quo misdirected itself by acquitting the respondent yet the State had clearly established a prima facie case against the respondent and as such he ought to have been put to his defence," argued Tomana.
He said the magistrate who presided over the case erred by rejecting the evidence given by the complainant's husband.
"The appellant seeks leave of this court and genuinely seeks to test the correctness of the judgment of the court-a-quo." Momberume was accused of raping his nephew's wife at a hotel in Bulawayo on the pretext that he was prophesying on her. The court heard that on April 9, 2013, Momberume met the woman at TM Hyper Supermarket and took her to the hotel.
The two sat in the lounge during which Momberume prophesied about the woman's family issues, saying she needed cleansing as he alleged that her husband kept a two-headed snake in Mutare.
Momberume then allegedly gave her a drink which she took and started feeling dizzy. Momberume asked the woman to follow him to his hotel room where he allegedly undressed and raped her once.
The woman later gained consciousness and found herself naked with water all over her body. Momberume called the woman on the next day saying he had confessed to her husband and that they were supposed to meet at the same hotel.
Momberume met the woman at the hotel where he again allegedly offered her a drink which she took and felt dizzy. Momberume placed her on the bed and allegedly raped her once again and told her to go home. The woman narrated the ordeal to her husband and a report was made leading to Momberume's arrest.
Source - chronicle
