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Court Reporter

A VICTORIA Falls-based teacher who was recently sentenced to two years in jail for fondling a Grade Seven learner in class, was yesterday released by the High Court on $50 000 bail pending appeal against his conviction and sentence.

Austin Shoko (43) of Mkhosana suburb, a teacher at Chinotimba Primary School was last month convicted of indecent assault by Victoria Falls magistrate Ms Linda Dzvene.

Shoko was in a laboratory with the 13-year-old girl and other learners when he started touching her breasts in February this year.

He was sentenced to 24 months in jail of which six months were suspended for five years on condition he does not commit an offence of a similar nature within that period.
Bulawayo High Court judge Justice Martin Makonese granted Shoko bail following his application through his lawyers Maposa and Ndomene Legal Practitioners
Justice Makonese ordered Shoko to continue residing at his given address and to report once a month at Victoria Falls Police Station as part of the bail conditions until the appeal is finalised.

“It is ordered that the applicant (Shoko) is hereby admitted to bail pending appeal on charges of indecent assault on conditions that he resides at the given address. He should deposit $50 000 as bail with the clerk of court of Victoria Falls Magistrates’ Court,” ruled the judge.

“The applicant should also report once every Friday of the month at Victoria Falls Police Station between 6am and 6pm until the appeal is determined.”

In papers before the court, the State, which was represented by Mr Khumbulani Ndlovu, was cited as respondent.

In his appeal, Shoko argued that the magistrate misdirected herself in deciding that there was overwhelming evidence against him.

“Throughout the trial, I gave a consistent defence that the allegations were fabricated at the instigation of the complainant’s mother who thought I had disclosed her secret love affair to her husband,” he said.

“The prosecution failed to rebut my defence and my evidence was also corroborated by the deputy headmaster.”

Shoko further submitted that the complainant’s evidence regarding the indecent assault was questionable because she did not raise any alarm to alert other learners who were passing by.

“She also did not give a prompt report at the school, and had to wait until she was not allowed to collect her results. It cannot be safely concluded that there was overwhelming evidence against me,” he argued.

Shoko said the magistrate erred when she concluded in her judgment that the prosecution had proved its case beyond reasonable doubt.

“Throughout the trial, I maintained that I never took the complainant to the computer laboratory as alleged. I took the complainant to the deputy headmaster and assisted her to see her results in his presence,” he said.

Shoko said the court erred by accepting the evidence of the complainant without applying the cautionary rule.

He contended that girl’s evidence did not show that the magistrate was alive to the need to exercise caution.

“This is a clear misdirection which goes to the root of the conviction. There is no evidence adduced by the State to show beyond any reasonable doubt that my explanation is false,” he said.

Shoko argued that the magistrate erred by failing to give reasons why community service was not an appropriate sentence.

“It is also submitted that the trial court misdirected itself in overemphasising my moral blameworthiness at the expense of my personal circumstances. I was a first offender and family man who should have been spared custodial sentence,” he said.

Mr Ndlovu opposed the application, arguing that the lower court exercised its sentencing discretion when it imposed a sentence of 24 months.

“The trial court properly assessed the evidence of the complainant and rightly found and held that caution attendant to this type of evidence had been overcome in this case.

Nothing turns on the applicant’s conviction and there are no prospects of success in the appeal against conviction,” he said.

Mr Ndlovu said there were irregularities and misdirection on the part of the magistrate.

“In casu, it has been submitted that the allegations against the applicant were engineered and fabricated by the complainant’s mother for fear that Shoko would expose her love affair with his friend.

“Noteworthy, complainant first reported the abuse to her cousin, and from the foregoing, it is clear that the victim was traumatised by the experience,” he said.

“The assertion that the allegations were fabricated are thus seemingly far-fetched in my view. It must be noted that there is no standard reaction to sexual abuse.

“The magistrate rightly noted, it not our law that complainant should report to any first person she meets.”

Mr Ndlovu said Shoko was not contrite as he defended himself to the bitter end during trial.

“The applicant’s moral blameworthiness is very high in this case. The trial court justifiably imposed an effective custodial sentence, and held that community service would have trivialised the offence,” he said.

“Wherefore, respondent prays that the application for bail pending appeal be dismissed.”

According to court papers, it was stated that on February 18 at around 7am, Shoko was at the computer laboratory with the complainant when he grabbed the girl from behind and fondled her breasts without her consent.

The matter was reported to the police leading to Shoko’s arrest.