adminThulani Ndlovu Sunday News Reporter
A MARRIED mother-of-two who was convicted and sentenced to five years in prison last month for sexually abusing a Grade Two pupil after promising him a pencil and uxakuxaku (snort apples) has been granted bail pending appeal.
She was released from Khami Prison on Tuesday afternoon last week and ordered to pay $200.
Gugulethu Ncube (24), from Bulawayo’s Lobengula West suburb, allegedly undressed the boy in 2009, then aged seven, and asked him to hold his sexual organ which she inserted into hers and later forced him to suck her breasts.
Ncube was charged with aggravated indecent assault, but she pleaded not guilty. Despite her plea of not guilty, regional magistrate Mr Mark Dzira found overwhelming evidence against her.
Through her lawyer, Mr Zibusiso Ncube of Messrs Calderwood, Bryce Hendrie and Partners, she made an application for bail pending appeal alleging that the court which convicted her had erred in law by finding that the State had proved its case beyond reasonable doubt when in fact had not done so.
“The court erred and misdirected itself in convicting me on the evidence led by the complainant which was totally at variance with the State outline of its case. Furthermore, the court erred in law in admitting medical and psychiatric reports without compliance with the requirements of the law,” she said.
“The court that convicted me misdirected itself in accepting the evidence of the complainant wholly without question while placing no weight to my evidence without any explanation.”
Ncube was unrepresented when she was convicted.
Mr Zibusiso Ncube said the trial court failed to fully explain the rights of an accused as regards to the right to cross-examination and other court procedures.
“Court failed to assist an unsophisticated and unrepresented accused to articulate her case and ensure effective cross-examination and relying on such failure to cross-examine as a basis for conviction is unfair,” he said.
He further asked that should the sentence be upheld, the court of appeal should reduce the sentence due to the fact that his client was a youthful female first time offender.
Mr Zibusiso Ncube said the sentence passed by the court was so severe as to induce a sense of shock considering the circumstances.
“The trial court misdirected itself in over-emphasizing deterrence despite its own finding that there was no corresponding prevalence of child sexual cases by women,” he said.
Mr Dzira sentenced Ncube to eight years in prison and suspended three years because Ncube was 18 years old when she committed the crime. He also said he had also considered that she was a mother of two, nursing a three-year-old child.
Mr Tinashe Dzipe, prosecuting, said sometime in 2009, Ncube approached the boy and lured him to her house saying she wanted to give him a pencil. That evening, the boy went to his neighbour’s house where the abuse occurred.
The sickening abuse, the prosecutor said, was exposed when the boy was caught poking other pupils at school with his sexual organ. On being asked by a teacher why he was always threatening to prick other pupils with his sexual organ, he said Ncube had taught him how to use it.
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