The
appellant appeared before the Regional Magistrates' Court at Bulawayo on the 4th
July 2013, with a co-accused, one Patrick Tshuma, facing one count of
kidnapping as defined in section 93(1)(b) of the Criminal Law (Codification and
Reform) Act [Chapter 9:23].
Both
accused persons pleaded not guilty to the charge, and, after a full trial,
Accused Two was acquitted, while the appellant was found guilty….,.
The
appellant was not satisfied with both conviction and sentence and filed a
lengthy notice of appeal in support of her appeal. The appellant contends
that the State failed to prove its case beyond reasonable doubt regard being
had to the fact that the credibility of the complainant's story was put into
doubt by the evidence of Patrick Tshuma which appeared to contradict the
complainant's version in material respects.
The
background to this matter is that the appellant was a 59 year old housewife at
the time of the alleged offence. The complainant was aged 6 years old and
resided at Mafanisa Line, Ntabazinduna at the relevant time. The appellant
was a neighbour to the complainant. The complainant was residing with her
aunt, Sibongile Moyo. On or around the 9th February 2013, at
around 1800 hours, the complainant was in a bushy area looking for
goats. It was alleged by the State that the appellant approached the
complainant, closed her mouth with her hand, tied her hands and legs with a
piece of cloth and then forcibly took her to her homestead against her
consent. The complainant, who testified in court, informed the court that
she was taken from a place near an anthill by the appellant who tied her up and
took her to a grassy area at Patrick Tshuma's homestead. The complainant
went further to indicate that she was released from Patrick Tshuma's homestead
the following day.
The
State led evidence from Sibongile Moyo who testified that the complainant was
her brother's child. She averred that the complainant went missing on the
9th February 2013. Her crucial evidence is captured in the
transcript of proceedings…, as follows:
“The child left to look for goats. She then
disappeared. The goats came on their own. I went and called but no
one answered. I then went to my neighbour whom I trusted at Nyathi's
homestead and told her that I was not seeing the child. She advised me to
go back home but the child was still not there…,.”
On
how the complainant was found, the evidence of the witness is contained at page
27 of the transcript of the proceedings in the following terms:
“I then met Patrick Tshuma, Accused Two, who asked me about
the disappearance of the child. I told him that no one wants a child to
disappear. I then started crying. He then got hold of my hand and he
accompanied me. I told them to free her because it was difficult for me to
sleep without seeing the child. I did not mention anyone's names.
Patrick Tshuma took me to
Ntombizodwa Tshuma, who is Accused One, then started to insult me why I was
crying with a loud voice. I then threatened to assault Accused One and she
then said I was assaulting the child. I then told her that the child
belongs to me.
She then told me to be quiet and she told me Accused Two had
found the child in the toilet. I did not answer Accused One.”
It
is common cause that eventually the complainant was brought to the appellant's
homestead by Patrick Tshuma - and that happened in the presence of several
other villagers. The complainant was handed over to Sibongile Moyo.
The
difficulty with the State case commences with the introduction of the evidence
of Patrick Tshuma in his Defence Outline. He testified as follows:-
“Upon my arrival at Ndlovu's place I found that
there were a lot of people. They greeted me and I responded. They
then asked me if there were any people who were searching where I was coming
from. I told them that I had not seen them where I was coming from.
I was then told that they were not seeing their child who
left the previous day to look for some goats. I told them that I had not
seen her. I was at Ndlovu's place for 10 minutes and I then told Accused
One that I was going back home to weed since the aunt of the child was not
there and had gone to the police. I went back to my place of residence and
got into the fields where I had left my hoe and began weeding.
I then left around 6:45pm and went via the toilet and I
decided to go inside and see how the rains fell since it was raining. I
then found complainant in the toilet.
She was not tied, she was okay and I told her that she was
being looked for at her place. She did not answer me. I then asked
her if I was supposed to take her to her place of residence and she responded
that she did not want by lifting her shoulders.
I took her into one of my rooms. She had no
clothes. I then told her to sit in that room. I got into one of the
rooms and took a blanket and covered her with a blanket. I then advised
her that I was going to her place to advise them that I had seen her.”
In
his submissions on behalf of the appellant, counsel forcefully argued that
there was an unresolved conflict in the evidence of the complainant and that of
Patrick Tshuma.
He
averred that the doubt that was created in the State case must be construed in
favour of the appellant.
Counsel
for the appellant further pointed out that the trial court failed to enquire
how the complainant gained access into Patrick Tshuma's house. The
evidence showed that at the time the complainant allegedly went missing,
Patrick Tshuma was away at some farm doing menial work and that when other
villagers were called to Patrick Tshuma's homestead, when the complainant had
been found it is Patrick Tshuma who unlocked the door.
I
must point out that it is clear that no evidence was led to suggest or show that
the appellant had a spare key to Patrick Tshuma's house or that the appellant
had placed the complainant in the toilet at Patrick Tshuma's homestead. A
further problematic piece of evidence which was not controverted is that when
the complainant was seen by Patrick Tshuma she refused to be taken back to her
house. It seems to me that the the trial magistrate erred by failing to
place any weight on the evidence that the complainant used to run away from her
home because of the abuse she suffered at the hands of Sibongile Moyo.
In
this respect, the fact that the complainant was refusing to go home gives rise
to the inference that on this occasion she may probably have run away from home….,.
A
further concern is that the learned magistrate appears to have failed to warn
himself of the need to apply the cautionary rule when dealing with the evidence
of the complainant.
The
complainant was aged 6 years at the material time and at that age she could
have easily been prone to exaggeration, fabrication and fanciful
thinking. See the case of State v Sibanda 1994
ZLR 394 (S).
In
the above matter, the Supreme Court laid down six main issues to look out for
when dealing with evidence of minor children, namely:
a)
Children's memories are unreliable.
b)
Children are egocentric.
c)
Children have difficulty distinguishing fact from fiction.
d)
Children are highly suggestible.
f)
Children make false allegations.
g)
Children do not understand the duty to understand the truth.
Counsel
for the State argued that it was safe to rely on the evidence of the
complainant and that her testimony was credible and worthy of belief.
I
am unable to agree that the evidence presented by the State as a whole is
adequate to provide proof beyond reasonable doubt. There are gaps in the
evidence of the State case which remained unexplained and unresolved.
It
is a trite principle of our law that where reasonable doubts exists, then in
that event, the accused must be acquitted.
The
net effect of the evidence placed before the trial court was that there existed
reasonable doubt as to whether or not the appellant committed the offence and
it behoved the trial court to find the appellant not guilty.
I
have observed that a perusal of the record indicates that the offence alleged
against the appellant is without a discernible motive and there is no
indication from the evidence led why the appellant would have committed the
offence. It is an unusual case.
In
the event, the appeal against both conviction and sentence succeeds. The
appeal is allowed and the conviction and sentence is set aside.
