The
appellant was convicted by a Gweru Regional Magistrate of two (2) counts of
rape as defined in section 65(1) of the Criminal Law [Codification and Reform]
Act (Chapter 9:23)….,. The appellant protests his conviction in this appeal.
The
background facts are the following:
The
appellant was aged 33 years at the time of the alleged rape. He was a Catholic
priest based at Moyomusande Catholic Church, Siyahokwe in Chirumanzu. The
complainant was aged 23 years, resided in the area where this Church was
situated and she is a parishioner at the abovementioned Church. The complainant
was also a girlfriend to the appellant's young brother Vitalis. It is common
cause that the complainant was at a Church service on 17 September 2006. The
appellant approached the complainant and said he had some issues to discuss
with her in private. The appellant
invited the complainant, in writing, to report at the Parish the following day
i.e. 18 September 2006. It is important that this note is quoted in its
entirety. This is what the appellant wrote:
“Sunday
is not a good day to see me on personal grounds. Come tomorrow woga
tizotaurirana. People are looking/watching every step of
yours. Force between 8 & 10.”
The
following day, the complainant went to the appellant's place of abode at the Parish.
The appellant's and complainant's version differ from this point onwards. It is
the appellant's case that he wanted to ask the complainant about the rumours
that was doing rounds in the Parish and the locality that she was having an
affair with him. This concerned him because it affected his reputation. He was
also worried about her alleged previous relationship with a man who has since
passed on yet she was involved with his brother at the same time. The appellant
denies raping her or having sexual intercourse with her.
On
the other hand, the complainant's version is that on 17 September 2006, after
the Church service, the appellant approached her and stated that she had
offended him, presumably by being in love with his young brother. She later,
after 15 minutes, approached him at his office and enquired why he was alleging
that she offended him. The appellant told her that he needed more time with her
and he wrote the abovementioned note. She placed the note in her handbag and
left. When she got home she showed the note to her sister [in the State Outline
it is said her mother]. In the morning of the fateful day she proceeded to the Parish
after notifying her sister-in-law. The Parish is about 5 kilometres from her
homestead so she walked there. She got there around 8a.m. The appellant invited
her into his dining room. Once inside, the appellant sat on a sofa opposite
where she was seated. The appellant accused her of having an affair with one
teacher (name withheld) who was H.I.V. positive whilst at the same time having
a relationship with his brother Vitalis. There was a knock on the door and the
appellant went to attend. When he returned he accused her of not being in good
books with Beauty and other children. He proceeded to grab her. She tried to
stand and a struggle ensued. The appellant eventually overpowered her. He fell
her on a bed and the appellant raped her once. In her evidence-in-chief, and
under cross-examination, she testified of one rape only. When the prosecutor
re-examined she said the appellant raped her twice. She said the second rape
occurred when she was about to depart from the bedroom. He grabbed her and
raped her again. After the rape she said the appellant gave her water and soap
to bath. He ordered her to bath before she left. After she had taken the bath
he gave her lotion which she applied on her body. She left the appellant's
house. She was not crying when she left. The appellant threatened to cut her
neck if she told anyone what had happened. She said that she had previously
been to the appellant's place of abode to visit his brother Vitalis. As she
left, the appellant asked her where she was headed to. She told him that she
was going to phone her mother at the shops. The appellant advised her against
saying bad things about him. She proceeded to the shops and indeed phoned her
mother but did not tell her about the rape. She only told her mother about
death in the family. Thereafter, she proceeded home. She told her sister that
she had stomach pains. She did not tell her about the rape because the appellant
had told her that he knows the law and nothing was going to happen to him. She
believed what he said. On 22 September 2006 she wrote a letter to her uncle,
Alex Jachi, who stays in Gweru and is a police officer. She gave him the letter
on 25 September 2006. The letter contains, inter alia, the rape allegations
subject matter of these proceedings. She testified that she conceived as a
result of the rape and gave birth on 13 June 2007.
Under
cross-examination, she conceded that she had written a letter to the appellant
in August 2006. The complainant was not
asked the circumstances under which she wrote this letter even though there was
an allegation that she was in love with the appellant. Why would she write such
a letter a month before the alleged rape? This issue was not at all canvassed
during the trial. Be that as it may, this is what the complainant wrote in the
letter addressed to the appellant:
“Boma
Res Area
Obsessed
father (Constantine)
I
have taken this initiative to let u know that I am still living. Well let me
say whats up? My dear father as u claimed that I am your daughter. Back to me
I'm not all that okay. Yes as I promised to visit your area today it's very
unfortunate due to the fact that I'm under pressure I didn't manage to fulfill
the promise. Pardon me! I heard a good
comment from my mother she really appreciate the way u preach. It is something
which is good to justify your behavior. I am still having glimpse o your
laughing-tomes. How is ever smiling Liberty? I am missing that boy greet him
but u I'm not missing you at all (jokes). I was suppose to be out for my Beauty
Therapy studies this month but I understand that there is conflicts &
misunderstandings here and there. So everything is boring.
Please
can u sent back my photo w grey outfit I need it for reprint. As for the one w
red top I have done e enlargement to A4. Pliz reply this note mukarega
munochema chete. Today I'm going out for an active immunization for (Black
quarter) around 3pm. If you are to go to Gweru pray for us. STAY AWAY FROM
TEMPTATIONS.
I am
running in short o time
More
time
Daughter
Hazzy Boma
Reply
today”
As
alluded to, the court a quo, the
prosecutor and defence counsel never bothered to canvass the context under
which this letter was written. Why would a young woman write such a letter to
her priest? From the contents of the letter she had given the appellant at
least two of her photographs. Why? All the details in her letter are not what
one would expect in a communication between a priest and a member of his parish
whom he is not close to. The court a quo did not bother to enquire as to
whether it was usual for parishioners to write letters to their priest -
especially with patronizing contents of this kind. Even without seeing this
letter, the evidence shows that the people had already started speculating
about a possible love relationship between the appellant and the
complainant. The source of such
speculation was not canvassed during the trial but would such speculation be
strange in light of the contents of this letter?
In
response to questions by the court, counsel for the respondent conceded that he
did not apply his mind to the contents of this letter. With the benefit of
hindsight, and having gone through the letter in court, he conceded that the
letter seems to suggest the existence of a relationship between the appellant
and the complainant. The complainant's letter to the appellant is characterized
by histrionic contents. The contents suggest that the complainant liked
hobnobbing with the appellant beyond the parishioner and priest relationship.
That is why she gave him her photos. The letter speaks for itself. The issue of this letter should have been
carefully canvassed during the trial. The trial magistrate should have realized
that it is not safe to convict in the face of such evidence. Despite the
abandonment of the cautionary rule, however, the courts must still carefully
consider the nature and circumstances of alleged sexual offences – S v Banana
2000 (1) ZLR 607 (S)…,. In S v Magaya 1997
(2) ZLR 139 (H)…, it was stated -
“Human
experience has shown that in courts girls and women do sometimes tell entirely
false story which is very easy to fabricate but extremely difficult to refute.
Such stories are fabricated for all sorts of reasons…, and sometimes have no
reason at all.”
See
also S v Chamunorwa and Anor 2001 (2)
ZLR 404 (H).
From
the foregoing, the conviction of the appellant is not safe. Accordingly, the
appeal against conviction succeeds and the conviction is quashed and the
sentence set aside.
