The appellant, who was eighteen (18) years at the time of the alleged offence, was found guilty of raping an old woman of seventy-seven (77) years. He appeals against both conviction and sentence.

He raised four grounds of appeal.

(i) The first ground was that the learned trial magistrate misdirected herself by convicting the appellant in light of the fact that the appellant gave a version of events which was reasonably possibly true and was not demonstrated to be false by the evidence led during trial.

(ii) The second ground was that the learned trial magistrate appeared to have unduly placed too much reliance on the age of the complainant and the fact that she broke down during her testimony.

(iii) The third ground was that the learned trial magistrate ought not to have placed any reliance on the medical report in arriving at the decision to convict.

(iv) The fourth ground was that the learned trial magistrate ignored the fact that beside the complainant's word, no other acceptable evidence was adduced to prove that the appellant raped the complainant….,.

As for the second ground, the learned trial magistrate correctly weighed the factors that she ought to weigh in arriving at a proper assessment of the issues of credibility. Her treatment of the emotions associated with the type of offence that she was seized with is beyond reproach as these are not the only factors which influenced her decision to reject the appellant's version. She correctly points to the contradictions within the defence version of the alleged assault on the complainant and settles on a finding which rejects that version.

In our view, there is nothing to be said against her assessment of the evidence….,.

The fact that she was subjected to cross-examination confirm that in spite of a spirited effort to cast aspersions on the quality of her evidence, the defence was unable to proffer any reasonable suspicion on the evidence she gave besides stating that it was not true.

If, indeed, it was untrue how is it that a legal practitioner of experience was unable to show this using the time-tested weapon of cross-examination? It seems to us that such failure can only be explained by the fact that, indeed, the old lady was not trying to besmirch the appellant's name and good character but only relating what took place.

No meaningful submission was made regarding the sufficiency of evidence since both the appellant and respondent were ably represented at the trial. Had this been an issue appropriate attention would have been drawn to this fact in the court a quo.

In our view the appeal against conviction has no merit….,.

We found the concessions by counsel for the respondent regarding conviction quite disconcerting.

It is not a requirement that a rape victim should raise alarm in order to be believed. People react differently to similar situations. The reason why the old lady did not cry out may be found in the fact that she knew her assailant quite well. She was overpowered but she knew that the correct step to take is to make a police report on the assault.

The appellant was convicted by a Regional Magistrate sitting at Marondera Magistrates Court on a charge of contravening section 65 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (Rape).

The evidence led at the trial of the appellant, on the basis of which the magistrate convicted the appellant, established that the complainant came from school and found the appellant at home sitting in the kitchen smoking a cigarette. She greeted him and proceeded to the bedroom to change her clothes. While she was changing her clothes, the appellant opened the door. She was half-naked, as the top part of her body was exposed and her skirt was not zipped.

This far the appellant's and the complainant's evidence agrees.

They differ only on the complainant's evidence that he forced his way in, and when she tried to run out of the house he embraced her, dragged her to the bed and raped her once. After he had completed his purpose he warned her not to tell anyone or he would kill her.

I shall now turn to an examination of the grounds of appeal.

Regarding the first ground of appeal, the applicant submitted that it was suggested to the complainant at the police station that the applicant was the one who had raped her. It was submitted that the paper on which the complainant wrote his name was not produced in court. In support of these submissions, I was referred to pp 4-5 of the judgment respectively.

The relevant evidence on the issue is on pp15 and 17 of the record. On p15, the complainant testified as follows -

“When I went to the police that is when I revealed that the accused was the culprit. Police officer asked me to write down the name of the perpetrator on a piece of paper and give it to aunt. I then wrote down that it was my father.”

Under cross-examination, the complainant testified as follows -

“Q. Were you not influenced by anyone to implicate me.

A. Noone (sic)”...,.

The above evidence does not, in any way, support the applicant's contention that the complainant was influenced to name the applicant. In my view, the evidence proves otherwise.

Counsel for the applicant conceded that the evidence was not supportive of his submissions. He failed to direct the court to any other part of the record where one would deduce that the complainant had been influenced. In fact, it appears the references given by the applicant appear to have been intended to mislead the court.

The bail statement indicated..., that the paper on which the complainant wrote the applicant's name at the police station had not been produced in court. However, at p15 of the record of proceedings, it is clear that the piece of paper was produced in court...,. The record reads as follows -

“This is the piece of paper I (the complainant) wrote on exhibit 3. I never said anything to the counsellors.”

Counsel for the applicant again retracted his submissions that the piece of paper had not been produced.

The accused is a woman aged twenty four years. She was convicted, after a summary trial conducted pursuant to the provisions of section 271(2)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07], of three counts of rape.

As a woman, under normal circumstances, she cannot commit rape.

We dismissed the appeal against conviction and sentence. These are our reasons for doing so.

The appellant, a fifty-six year old man, was convicted by a Bulawayo Regional Magistrate of raping a twelve year old girl, i.e. rape, as defined in section 65(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].  

From the record of proceedings, he was not convicted for want of protestation.

He has appealed against both conviction and sentence.

Most facts are common cause, or at least beyond dispute. The salient facts are the following.

The complainant knew the appellant very well before the date of the crime. The appellant was employed as a security guard at Techno Exports at Northend Shopping Centre. On the 5^th of October 2008, the complainant, and her juvenile (female) friend went to the appellant's place of employment. The appellant was carrying out guard duties at a construction site. At the site, there was a stationary T35 truck. The complainant, and her friend, got into this truck and started playing. It is common cause that the appellant approached these girls.

What transpired when he got there is hotly disputed.

It is the appellant's case, on the one hand, that he chased these children away. The children later returned to play in the truck but he did not chase them, but, instead, let them play until they got tired and left.

This is a review judgment.

This is a review judgment forwarded to me as per the usual procedure.

The facts of this case are that the accused, an eighteen year old young man, was charged with two counts of rape.

The complainant is a mentally challenged woman of twenty-nine years, and was eighteen weeks pregnant at the time of execution by the Doctor on the 5^th day of October 2007.

The accused appeared before the Magistrates' Court facing one count of contravening section 65(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

He pleaded guilty to the charge and was duly convicted.

The facts giving rise to the charge and conviction may be summarised as follow.

The accused and the complainant are brother and sister respectively. At the time of the offence, the accused was aged sixteen whilst his sister, the complainant, was aged twelve.

It would appear that during the day of the 27^th May 2006 the accused person went for a beer drink with his parents. Upon his return to the residence he found the complainant and a younger brother alone. The two ran away when the accused arrived as they were afraid. Presumably they mistook him for an intruder. The complainant and the accused's young brother prepared their respective sleeping places in their mother's room. The accused joined them and insisted on sleeping in the same room with them. He then spread his own blankets in between the two and they all proceeded to sleep. Later, during the night, the accused crept into the complainant's blanket and forcefully removed her short. He then inserted his penis into the complainant's vagina and she resisted him and pushed him away.

He did not persist with his conduct.

The conviction of the accused is proper and raises no issues. The trial magistrate correctly noted that the facts of the matter constituted an offence as the accused inserted his penis into the complainant's vagina – who removed it when she pushed the accused away.

There was legal penetration, even though such penetration could not be medically detected when the complainant was examined some three days later. In this regard, the words of the accused person when entering a plea to the charge are, in my view, telling. This is what he had to say -

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).

At the conclusion of submissions by the parties we upheld the appeal, set aside the conviction of the appellant and quashed the sentence. We pointed out that the reasons for doing so would follow. 

These are the reasons.

The appellant, who appeared in person, was convicted of four (4) counts of rape by the Regional Magistrates' Court in Bulawayo and sentenced to 60 years imprisonment that, is, 15 years on each count and of that total term of imprisonment, 10 years was suspended on condition of good behaviour. This left him with an effective imprisonment term of 50 years. The appellant was not happy with both the conviction and sentence and launched an appeal against conviction and sentence….,.

The allegations against the appellant were that sometime during the month of January 2006 he had waylaid his daughter, the complainant, then aged 11 years, on her way from school and raped her twice. It was further alleged that between January and March 2006 he had again waylaid the same complainant on her way from school and raped her once. In the fourth count, it was alleged that sometime in April 2006, he lured the same complainant to a kraal at his homestead and raped her once but was caught red-handed by his wife who, however, did not report the alleged rape to anyone.

It was not until much later that his wife reported the rape - but only after finding the appellant assaulting their son, leading to the arrest of the appellant.

In convicting the appellant aforesaid, the trial magistrate relied on the evidence of the complainant, her mother and the medical report prepared by the doctor who examined the complainant on 21 April 2006. The complainant told of repeated abuse at the hands of the appellant over a period of time.  She said she did not report the rape to anyone because the appellant threatened her with assault.

The complainant's mother testified that after she had caught the appellant raping the child in the kraal she did not report the matter to the police or her mother-in-law, who was staying with them, because the appellant had threatened to kill her if she did. She testified that she had examined the complainant and observed that her “vagina was seriously ravaged.”

The appellant himself gave evidence at the trial to the effect that the charges against him were trumped up because he was having serious matrimonial problems with the complainant's mother. He had caught her red-handed having sex with a police officer who had earlier victimised him by arresting him on trumped up stock theft charges. He was acquitted of these charges and upon being released from prison he had found the officer being intimate with his wife resulting in him fighting the officer. The appellant says he was arrested for that and the police officer was hospitalised for 5 days. According to the appellant, his wife never forgave him for that and she decided to cause his arrest, again, on false rape charges.

The appellant's story was corroborated by the second State witness, his wife, who admitted, even in her evidence in chief, that she had indeed been caught with an officer she preferred to call a Neighbourhood Watch Committee member. His denial of having abused the complainant is also supported by the State case in the form of the medical report….,.

Although, the complainant's mother claimed to have observed that complainant's “vagina was seriously ravaged” this was not borne by the medical report.

According to the doctor, although the complainant's hymen was “absent” (which is not unusual), the 11 year old complainant was not sexually active as would be expected of someone so repeatedly abused. More importantly, penetration was “not effected.”

This is an appeal against the judgment of the Regional Court sitting at Tsholotsho handed down on the 17^th February 2010.

The allegations against the appellants are that on the 25^th October 2009, the two appellants, together with three other accomplices, assaulted and raped the complainant, one Bongani Ncube. The appellants were both aged 18 years while their accomplices were aged 17 years. The complainant was aged 14 years.

It is the State's case that on the day in question the complainant and her friend, Gugulethu Moyo, were proceeding to see their boyfriends when they met the second appellant who was coming from the opposite direction. While they were still walking the two appellants, together with their three accomplices, approached them from behind running. They, without provocation, started assaulting the complainant all over her body with a leather belt and a sjambok. Gugulethu Moyo ran away. The complainant sustained injuries as a result of this assault. During the assault, the complainant fell down and was dragged to the bush where they laid her down facing upwards. They all took turns to rape her after covering her face. They then left for their respective homes while she also proceeded to her own home. She did not make a report immediately after the assault and rape as she feared reprisals from her parents and the threat from her assailants.  She, however, made a report later after her father had confronted her upon receiving information about the incident.

They pleaded not guilty to both charges but were, nonetheless, convicted.

The accused person was convicted on three counts of contravening section 65 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The complaint was twelve (12) years old at the time she was raped.

The facts on which the accused was convicted are that he, on three different occasions, had sexual intercourse with the complainant. The complainant, in her evidence, on pages 5 and 8 of the record, said on the first occasion the accused did not insert his penis into her vagina but “placed it outside her vagina near the hole.” On the second occasion she said the accused inserted his penis into her vagina and had sexual intercourse with her. She felt pain and bled from her vagina. On the third occasion she said the accused tried to insert his penis into her vagina but she resisted, and the accused's male organ “only touched the outside” of her vagina.

The Regional Magistrate convicted the accused of contravening section 65 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] on all three counts. He reasoned as follows -

“Looking at what the complainant said in all the counts she said in (sic) the first incident, his penis touched the genitallia and near the vulva but did not penetrate inside her vagina. On the second incident his penis penetrated and she felt pain and bled, and on the third incident his penis only touched the vagina. It must have been erect in (sic) all the occasions, the medical affidavit says penetration was effected. In my view, when the complainant said his penis did not penetrate her vagina in the first and third occasions but touched her vagina the slightest penetration is enough from a legal perception point of view. See S v Mhanje 2000 (2) ZLR 20 (H).”

It is apparent that the Regional Magistrate's understanding of penetration is not correct nor is it in agreement with the case law he cited. In the case of S v Torongo SC206-96 KORSAH JA …, said -

“As far as the law is concerned, placing the male organ at the orifice of the female organ, resulting in the slightest penetration constitutes rape.”

In the case of S v Mhanje 2000 (2) ZLR 20 (H), which the Regional Magistrate relied on, it was held -

“that the medical perception of what constitutes penetration does not coincide with legal penetration. For rape to take place, it is not necessary that there should be full penetration. The slightest degree of penetration will suffice.”

In the case of S v Sabawu 1999 (2) ZLR 314 (H).., CHATIKOBO J said -

“It is a trite proposition that for the purposes of the crime of rape, penetration is effected if the male organ is in the slightest degree within the female body. It is not necessary to prove that the hymen was ruptured. If authority were required for this settled proposition I would refer to S v Mhlanga 1987 (1) ZLR 70 (S) at 72F and S v Torongo SC206-96.”

In S v Sabawu 1999 (2) ZLR 314 (H)…, the two girls' genitals had been penetrated as bruises were found inside the labia minora, and the other girl's hymen was reddish, though not ruptured, showing the accused's penis had had contact with her hymen but failed to penetrate it.

These cases clearly demonstrate that rape can only be committed when the accused's penis penetrates the victim's vagina. The penetration need not be full penetration as the slightest penetration is sufficient. There must, however, be evidence that there was penetration. In the absence of such evidence an accused person cannot be convicted on a charge of rape. In the case of S v Mhanje 2000 (2) ZLR 20 (H)…, GARWE J…, said -

“For purposes of the case at hand the essential element that needs close examination is the aspect of sexual intercourse. HUNT supra at p440 says:

'There must be penetration, but it suffices if the male organ is in the slightest degree within the female's body. It is not necessary, in the case of a virgin, that the hymen should be ruptured, and, in any case, it is unnecessary that semen should be emitted. But if there is no penetration there is no rape, even though semen is emitted and pregnancy results.'

The fact that there would be no rape if the accused fails to penetrate his victim's vagina, but emits semen which flows into his victim's vagina leading to her pregnancy, proves that the crucial contact is that of the accused's penis penetrating the victim's vagina.”

In this case, the accused, according to the complainant's own evidence, failed to penetrate her on the first and third occasions, but succeeded in penetrating her on the second occasion. In respect of count one, she said he “placed it outside her vagina near the hole.” This means the accused's penis was not inside her vagina but outside it near the hole. There could therefore not have been any penetration when his penis was outside the complainant's vagina.

The Regional Magistrate therefore erred when he convicted the accused of rape in count one, when the complainant's evidence proved that there was no penetration.

On count three, the complainant said “the accused tried to insert his penis into her vagina but she resisted, and the accused's male organ only 'touched the outside' of her vagina.”

The complainant's evidence clearly proves there was no penetration as the accused's penis “only touched the outside of her vagina.” To touch is to be in contact with, but does not mean there was penetration. Contact which constitutes rape is that which includes the accused's penis' penetration of the female's vagina, even if such penetration is slight.

At the hearing of the appeal, we held that the appeal was partially successful. We set aside the conviction on five counts of rape and substituted them with two counts of the unlawful performing indecent acts with young persons as defined in section 70 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]….,.

We indicated that our reasons will follow and these are they.

This is an appeal against both conviction and sentence which was imposed by the Regional magistrate sitting in Bulawayo on the 14^th January 2011.

The State case, as outlined by the respondent, is that the appellant was aged fourteen (14) years at the time of the alleged offence. The complainant was aged four (4) years at the time and is the appellant's neighbour.

The allegations are that on the 25^th December 2010, in the afternoon, but, before 1600 hours, the complainant was playing alone at the gate when the appellant called her outside to play with him.   When she got to him, the appellant ordered her to lie down facing upwards. He then proceed to remove her pants and removed his too. He inserted his penis in her vagina, thereby having sexual intercourse with her.

The question of consent does not arise as she is legally incapable of making such consent.

The appellant pleaded not guilty to the charge, but, was convicted of rape.

This is an appeal against sentence only imposed by the Regional Magistrate Court sitting in Bulawayo.

On the 24^th November 2009, the appellant, together with her accomplice, one Sibuthene Ndlovu, aged 24 years, were charged with  five (5) counts of contravening section 65(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (Rape).

They pleaded not guilty to all counts but were, however, convicted….,.

The facts, as outlined by the State, are that between the 15^th September 2009 and the 19^th September 2009, the complainant was subjected to rape by Sibuthene Ndlovu with the assistance of the appellant.

The appellant and complainant are related as aunt and niece respectively. Sibuthene Ndlovu was employed as a herdboy in the neighbourhood.

Both the appellant and complainant were staying with one Monica Ndlovu who is their grandmother. The appellant, though at the time was at Monica Ndlovu's homestead, she was infact residing elsewhere and had, at the relevant period, visited Monica Ndlovu's homestead. Monica Ndlovu had left for Bulawayo and asked the appellant to remain looking after the complainant at her homestead.

On the 15^th September 2009, while the appellant and the complainant were asleep, Sibuthene Ndlovu came and called the appellant outside. She went outside and they talked. After a while, the appellant came and asked the complainant to accompany her where Sibuthene Ndlovu was and she obliged.  Upon arrival, the appellant told Sibuthene Ndlovu that she had brought him a wife, referring to the complainant. The appellant asked the complainant to comply. Sibuthene Ndlovu then held the complainant by the arm, led her out of the homestead and forcibly had sexual intercourse with her. The following day, Sibuthene Ndlovu, again, came at night, made a similar request to the appellant who then forced the complainant to accompany Sibuthene Ndlovu. Sibuthene Ndlovu again forced the complainant to engage in unlawful sexual intercourse.

On Counts 3, 4, and 5, Sibuthene Ndlovu came to where the appellant and the complainant were sleeping in a hut, he knocked on the door and was let in by the appellant.

On all the three occasions, the appellant would first have sexual intercourse with Sibuthene Ndlovu in the presence of the complainant. After finishing the act, she would lift the complainant onto the bed and thereafter force her to have unlawful sexual intercourse with Sibuthene Ndlovu in her presence.

The offence came to light when Monica Ndlovu returned and noticed that the complainant was limping. She took her to the clinic for a medical examination and a report was compiled which indicated that, indeed, penetration was effected. A report was then made to the police. Both the appellant and her accomplice, Sibuthene Ndlovu, were subsequently arrested. They were charged, tried, convicted and sentenced as stated…,.

The appellant has appealed against the conviction and sentence in the rape charge.

After hearing counsel for the appellant, we dismissed the appeal in its entirety without hearing counsel for the respondent. We indicated that our reasons for doing so will follow. These are they.

It is common cause that on the evening of 27 September 2000 the appellant met the complainant and her boyfriend, Tanaka Ncube, on a path at Centenary Park, Bulawayo. The appellant alleged that the two had been making love before his arrival at the scene and blew a whistle pretending that he was alerting other policemen. The two were reprimanded for doing so in the public. They denied that they were making love but said they were merely chatting. Save for the blowing of the whistle, these facts are beyond dispute. The appellant denied that he purported to be a policeman at the time he rebuked them.  The trial court accepted the complainant's version of events of what transpired thereafter. The complainant testified that after the appellant rebuked them, he ordered them to go separate ways. They obliged believing that the appellant was a policeman. The appellant later followed her after she had separated from her boyfriend. When the appellant caught up with her he walked by her side. The appellant then stated that since her boyfriend had absconded he was going to arrest her. He ordered her to follow him to the other side of the park. She complied as she was under the impression that he was a police officer. The appellant threatened her with eighty (80) days incarceration. He then said if he was to free her, he had to have sexual intercourse with her first. Against her will he dragged her by the arm to a shrub in the park. He ordered her to take off her trousers, which she did. She said he pulled out a condom from his bag but she is not sure whether or not he used it during the sexual act. He raped her once. Thereafter, he ordered her to dress up properly and leave. He ordered her not to look back as he walked away from the scene. 

She complied and left the scene.

As she left, she walked to the City Centre and ended up near Bulawayo Health Studio. She met her cousin, Martin Sibanda, who enquired why she was crying. She told him that she had been raped at the Centenary Park. Martin Sibanda hired a taxi and they went to the scene and proceeded to the side of the park where there is a police post and reported the matter. About a week later, when she was in the company of Martin Sibanda in a commuter taxi she spotted the appellant and informed Martin Sibanda. A report was made to the policeman at the taxi rank and the appellant was arrested.

The above cases have been referred to me for review. As they present a similar issue I have decided to deal with them together.

Rabson Dube: CRB 143/10

The facts of this case were presented and captured in the following manner:

The accused, a forty-nine (49) year old man, was charged with four (4) counts of rape which occurred between 2003 and 11 April 2008. The accused is related to the complainant as he is her step-father.

Stephane Sibanda: CRB 102/10

On the second case, the accused is twenty-two (22) years of age while the complainant is fifteen (15) years. The facts of the case are that sometime in August 2009 the complainant was sent to fetch some firewood in the nearby bush, at Village 5, Zimdabule Bushes, Nyamandlovu.  The accused is alleged to have had sexual intercourse with the complainant on three different occasions between August and October 2009. The rape was discovered when the complainant made a report to a neighbour Saneliso Ndlovu. This led to the accused's arrest.

At the end of hearing this matter we dismissed the appeal against both conviction and sentence and said our reasons for dismissing it will follow. The following are the reasons.

The appellant was convicted by the Regional Magistrates Court, Bulawayo on the 9th August 2007 of three counts of rape…,. He appealed to this court against both conviction and sentence on the following grounds:-

“1. ON CONVICTION

(a) The trial magistrate erred in holding that the Appellant was guilty on the three counts of rape and ignored without any rational basis that:

(i) The complainant had, during the investigations, told the police that she had been raped by one Alberto from whom a warned and cautioned statement had been extracted and one Jethiro a schoolmate.

(ii) The complainant's evidence was manifestly contradictory. What she said in court was very different from what she told the police and was recorded in her statement.

(b) The trial magistrate erred in holding that the Appellant was guilty on the three counts of rape in the basis of the evidence tendered by the complainant and her mother in that it is manifestly inconceivable that the mother of the complainant would, having learnt of the rape on the first day of its alleged occurrence, send back the complainant to school the following day to face her alleged molester instead of taking action instantly.

(c) The net result of the magistrate's judgment constitutes a serious miscarriage of justice which this Honourable Court should interfere with.

2. ON SENTENCE

(a) The sentence imposed on the Appellant by the trial magistrate is manifestly excessive as to induce a sense of shock considering that:

(i) The magistrate took all three counts as one for purposes of sentence.

(ii) The Appellant spent over a year waiting for the judgment. Judgment was supposed to have been passed on the 25th July 2006 but it was delivered on the 9th August 2007.”

In our law, a young person under the age of twelve (12) years is incapable of consenting to sexual intercourse, and, as such, age alone vitiates consent.

The complainant was a ten (10) year old Grade 5 pupil at the material time while the appellant was her class teacher. The evidence led in the court a quo established that the complainant had recently been raped because she was a ten (10) year old who was incapable of consenting to sexual intercourse and…,  the medical affidavit of Andrew Ndiweni, a Clinical Officer at Plumtree Hospital showed that she had recently been raped. This arises from the fact that she had bruises in her vagina, had a discharge and the hymen was absent. That report concluded that penetration had been “surely effected.”

It follows, therefore, that somebody must have raped the complainant at the material time….,.

Counsel for the appellant strongly attacked Regina Sibanda for failing to report the matter to the school authorities or the police immediately upon discovery, and, instead, letting the complainant return to the school only to be raped two more times. He submitted that that pointed to the fact that both the complainant and her mother were not credible witnesses.

This is a review matter forwarded to me as per the usual review procedure for reviews.

This matter came to me by way of a review procedure.

The brief facts of the case are that the accused, who was aged fifteen (15) years at the time, and was in Form 3, was staying with the complainant who was in Grade 2 and aged nine (9) years. The circumstances surrounding the offence is that the complainant had been left in the house by her grandmother, Chipo Sibanda, when the accused raped her once. The accused is a minor so is the complainant.

The issues which were before the trial court in this matter were very narrow indeed and presented very little difficulty.

A three (3) year old girl complained to her aunt of being hurt in her private parts by one Nhlanhla. At first they ignored her complaint but she persisted over a long period of time until they were forced to investigate. On a day when she wet herself in her sleep they examined her and discovered that her vagina was dilated. This prompted her mother to take her to hospital where she was examined by a doctor who compiled a medical report. The said medical report was produced in court by consent and was never challenged at all. It concluded that the complainant had been sexually abused. That therefore put to rest the issue of whether she had been raped.

The appellant was arraigned before the Regional Magistrate at Bindura on a charge of rape as defined in section 65 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He pleaded not guilty but was convicted after a trial.

He now appeals against both conviction and sentence.

The appellant was convicted by the Regional Magistrate, Eastern Division, of rape as defined in section 65 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] after a contested trial. Dissatisfied with both his conviction and sentence, he now appeals against both conviction and sentence.

The facts upon which he was found guilty of the crime of rape in the court a quo can be summarised as follows.

Sometime in December 2006, the complainant and her younger brother stayed at the appellant's residence after they lost their mother. The appellant, a priest with the Anglican Church, was a family friend of the complainant's deceased mother. Around 1900 hours, on an unspecified day, but during the month of December 2006, the complainant was playing outside the residence with other children when the appellant called her into the house. He took her into the spare bedroom where he lowered his pair of trousers, laid her on the bed and ravished her. He warned her against telling anyone of the event.

She did not.

The appellant was arraigned before the Magistrates Court at Harare on a charge of one count of rape as defined in section 65 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He pleaded not guilty but was convicted after a protracted trial.

The appellant now appeals against conviction and sentence. He raises thirteen (13) grounds of appeal against conviction and two (2) against sentence. The respondent has aptly summarised the appellant's grounds of appeal against conviction, which summary I find to be a true reflection of the essence of the same. The summary is in the following terms:

“i) The court a quo erred in convicting the appellant on the basis of the complainant's evidence which was not credible because she gave two inconsistent and irreconcilable statements to the police and her evidence in court was contradictory to the 2 different statements given to the police.

ii) The court a quo erred in convicting the appellant where there was no evidence adduced to corroborate complainant's evidence.

iii) The court a quo erred in accepting the evidence of the complainant despite the inconsistencies and rejecting that of the appellant when his version of events was reasonably possibly true.

iv) The court a quo erred and misdirected itself by calling Doctor Okwanga as a witness after the State and defence case had closed. This was tantamount to calling evidence to rebut the defence version.

v) The court a quo erred and misdirected itself by refusing the defence the right to reply to the submissions by the State when it was clear the State had filed its submissions after the defence.”

The outline of the State case, as presented to the court by the State, was to the effect that on 29 August 2010, at 6.00 hours, the complainant, an 11 year old girl, passed through the appellant's business premises. She was on her way to Dzivarasekwa in search of her relatives. As she was walking past, the appellant called her and asked her where she was going. He asked her if she had bus fare for her journey. She said that she had no money and he gave her $2= for bus fare. This was in the presence of one John, a security guard at the appellant's business premises. At Dzivarasekwa, the complainant failed to locate her relatives. She went to Dzivarasekwa police station where she remained until 31 August 2010. She went back to the appellant's place arriving there at about 1500 hours. She saw the security guard, John, and asked to see the appellant. She was directed to the receptionist Emelda who showed her into the appellant's office. The appellant told the complainant to go and sleep at a cottage behind the garage. She slept in the room. During the night, the appellant came and joined the complainant in the room where she was. He got into the blankets in which she was and raped her. In the morning the appellant gave the complainant US$80= to buy what she wanted. He threatened her not to tell anyone about the incident or she would be arrested. The complainant went to Mutare where she made a report at Dangamvura Police Station from where the matter was referred to Southerton Police Station.

On a perusal of the evidence adduced before the trial court, as recorded in the record of proceedings, the following are discernible as the circumstances of the alleged sexual offence. These are that the complainant met the appellant for the first time on 29 August 2010. She spent the nights of 29 and 30 August 2010 at Dzivaresekwa police station. On 31 August 2010 she was taken to Glen View 2 police station from where she went back to the appellant at around 1500 hours. She slept at the appellant's company premises on the night of 31 August and 1 September 2010. She was raped on the night of 1 September 2010. She was given money by the appellant on the morning of 2 September 2010. She arrived in Mutare on the same day and on that same day Mrs. Jongwe took her to the police and the offence was discovered. A medical examination conducted the following day revealed a fresh tear on the hymen and a discharge from her vagina. The doctor concluded from these observations that the complainant may have been sexually abused and that the discharge may have been a sexually transmitted disease. He said that his findings were consistent with her allegations. The complainant named the appellant as the perpetrator.

In his defence outline, the appellant denied raping the complainant or committing any other offence. He stated that the charge is fabricated and was meant to extort money out of him, but because he resisted the attempts to extort money out of him this led to his arrest. He rather portrayed himself as a Good Samaritan who offered assistance to the complainant out of pity for her dire situation. In his evidence, the appellant confirmed or did not dispute all other events except the alleged spending of the night of 31 August 2010 to 1 September 2010; he also denied the rape.

This is an appeal against both conviction and sentence.

The facts of this matter, as per the State Outline, are that the appellant and the complainant are neighbours and are aged 18 and 13 years respectively. On the 15^th May 2011, at around 0700 hours, the complainant was playing outside the gate with other children when the appellant came and called her. She refused and he pulled her by the hand. She resisted and bit him on the hands but he refused to release her. He took her far away from other children. At this juncture, one Talent remonstrated with him to leave the complainant alone but the appellant would not listen. He got to a secluded spot where he removed the complainant's pant and had sexual intercourse with her without her consent. She felt pain and cried. The appellant got off her. She wore her pant and ran back to other children. She was then medically examined and the Doctor who carried out the examination noted that there was very likelihood of penetration….,.

The basis of his appeal against conviction is that:

(1) The State did not prove its case beyond reasonable doubt as:

1.1 The State witnesses contradicted themselves.

1.2 There was no evidence linking him to the crime.

On the 12^th June 2012, the appellant filed a Notice of Appeal challenging the conviction of two counts of rape for which he was sentenced to 20 years imprisonment of which 4 years imprisonment was suspended for 5 years on condition of good behaviour.

The State's allegations with regards to Count 1 are that the accused, who was aged 50 years at the relevant period, and is the complainant's grandfather. The complainant was about 12 years at the time of the alleged offence.

Sometime in 2009, the complainant, who was in Form 1, was at House Number 2559 Cowdray Park, Bulawayo with her 8 year young brother, was left in the custody of the appellant as their parents went away for a night. At about 2000 hours, the appellant ordered them to go and sleep, which they did. At about 2200 hours, the accused went to the room where the complainant and her brother were sleeping. He was armed with a kitchen knife which he poked at the complainant's forehead at the same time threatening to kill her. He removed his pair of trousers and at the same time forcibly removed the complainant's pants and proceeded to have sexual intercourse with her without her consent. He, thereafter, threatened to kill her if she reported the incident.

On the 3^rd January 2010, the complainant's family moved to House Number 509 Nguboyenja, Bulawayo together with the appellant. Sometime in February 2010, the complainant was asleep in the sitting room together with other 4 children when the appellant entered their room at around 2300 hours. She was awakened by the appellant's insertion of his sexual organ in hers. This caused her pain. When the appellant noticed that she was awake, he produced a knife and poked it on her forehead with a threat to kill her. The appellant then continued to have sexual intercourse with her. She did not tell anyone at the time. During the school holidays she went to Kombo Area, Matabeleland South where she discovered that she had developed genital warts. Upon her return to Bulawayo she reported her medical condition to her aunt Beauty Ncube who examined her and subsequently took her to Mpilo Hospital for treatment.

The appellant, through his legal practitioner, argued that the trial court erred by convicting him for rape as the complainant had initially stated that she had been raped by one Polite. He also argued that the complainant had been found with a sexually transmitted infection yet he did not have it.

The complainant alleges that she was raped sometime in July and the beginning of August 2013. The complainant is a 13 year old minor. She said she did not tell anyone about the alleged rape. She said that the offence came to light when her mother and aunt noticed changes on her and that she was no longer active. The complainant said she did not report to her mother as the applicant had told her not to tell anybody. The aunt who discovered the offence stated that she noticed, through observation, that the complainant was not happy and that she had bodily changes on her; she became suspicious and decided to ask the complainant about it. At the same time, she consulted the complainant's mother.

She said she asked the complainant if she was alright and the complainant said “No.” She further asked the complainant what was the matter with her. The complainant then mentioned the applicant by his nickname of ''Dot com.'

This witness said it was on 30 August 20113 at 0830 am. She further explained that the applicant had sexual intercourse with her without her consent. The trial magistrate dealt with the issues surrounding the making of the report. It is common course that the complainant and the applicant knew each other well prior to the commission of the offence and that they were close and the complainant referred to the applicant as ''Dot–Com.''The applicant also referred to the complainant as ''Petty'' in the proceedings. The complaint itself was made on the 30^th of August 2013, a few weeks, or at most, about a month after the alleged rape. There is seemingly nothing that turns on such a period of time warranting that the complaint should then be thrown out. Again, on the issue of the circumstances under which it was made, nothing turning on that as the complainant's aunt, upon observing that something was wrong with the complainant simply asked her if she was ok and the complainant said she wasn't, she then asked her what was wrong and she mentioned ''Dot-com'' - meaning the applicant. There is nothing that can be said to be interrogative, suggestive or probing in nature to warrant a finding that such a complaint was not made freely and voluntarily.

I accordingly find that there is nothing anomalous with the circumstances in which the complaint was made and I accordingly find that there are no prospects of success on appeal. 

The appellant is a registered and practising medical doctor. On 16 April 2012, the appellant was arraigned before the Regional Court sitting at Harare charged with the offence of raping his 21 year old patient. He was found guilty of the offence charged….,.

This is an appeal against conviction only. The appellant was convicted by a Regional Magistrate at Bindura on a charge of rape in contravention of section 65 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

On 24 February 2012, the appellant was convicted at Harare in respect of two counts of rape as defined in section 65 of the Criminal Law (Codification and Reform Act) [Chapter 9:23] after a contested trial….,.

Irked by the whole judgment of the court a quo, the appellant has appealed against both conviction and sentence.

The facts in this case, which has prompted this appeal, are most unusual and are a constant reminder of how gullible some parents can be. The facts, as summarised by the complainant, are as follows:-

Upon noticing some rash on her 13 year old daughter, who is the complainant in this case, the complainant's mother referred her to the appellant for treatment. The appellant projected himself as a prophet and the treatment was supposed to take the form of a cleansing exercise. Having ensured the complainant was alone, the appellant instructed her to remove her pant and blouse. The appellant further instructed her to kneel down with her hands on the ground thereby exposing her back to the appellant who was kneeling behind her applying some medication on her private parts. The appellant took advantage of the complainant's position and inserted his erect penis into her vagina and pushed it hard to the extent that the complainant almost lost her balance.

The facts, as given by the complainant, led to the appellant being charged and convicted of rape as defined in section 65 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The appellant is the pastor of his own church based in Marlborough, Harare. He was convicted by the Harare Magistrates Court on 3 February 2014 of four counts of rape and one count of contravening section 26 of the Censorship and Entertainment Control Act [Chapter 10:04] i.e. possession of pornographic material.

He was sentenced to a term of 50 years imprisonment with 10 years suspended on condition of good behaviour. He has since appealed to the High Court against his conviction and sentence.

That appeal is pending.

The appellant also applied to the High Court, as a court of first instance, for bail pending appeal. His application was dismissed. He now appeals against that decision in terms of section 121 of the Criminal Procedure and Evidence Act [Chapter 9:07].

The court a quo found that the evidence of the complainants, in relation to three of the four counts of rape, was credible in material respects. The court also found that the complainants' reports of the alleged rapes were voluntarily made and that, although the delays in making those reports were lengthy, the reasons given for those delays were plausible. Moreover, the sentences imposed by the magistrate, in respect of the rape counts, were appropriate.

As regards the censorship offence, the court a quo found that the evidence adduced as to the possession of obscene material was sound and that the appellant had no lawful excuse for his possession of that material. However, the sentence imposed for that offence was probably defective as the magistrate had advanced no reasons for sentence on that count.

In the event, the court a quo held that the appellant generally had no prospects of success on appeal and dismissed his application for bail. The court also held that there had been no violation of his constitutional rights to liberty and a fair trial.

The principal ground of appeal herein is that the Magistrates Court did not properly analyse the evidence before it and that, therefore, the case, on appeal, was arguable. Moreover, this cursory analysis of the evidence violated the appellant's constitutional rights.

Additionally, the High Court erred in disregarding the effect of the magistrate's mistaken references to cases dealing with mentally defective victims of rape. The High Court also erred in finding plausible explanations for the inordinate delays in reporting the alleged offences. Again, the reports were made in circumstances showing a likelihood of their having been made in response to leading, inducing, or intimidating questions.

Having regard to all of the foregoing, the central issue for determination in this matter is whether the court a quo erred or misdirected itself in finding that there were no prospects of success on appeal from the decision of the Magistrates Court.

The test to be applied in this regard is relatively uncomplicated: Is the appeal “reasonably arguable and not manifestly doomed to failure?” See State v Hudson 1996 (1) SACR 431 (W).

The main point taken by counsel for the appellant is that the learned magistrate did not evaluate the evidence and assess the credibility of witnesses on the rape charges (Counts 3, 7, 8 and 9). He thereby erred in accepting the evidence of a single witness without adequate analysis in respect of each Count.

Count 3 relates to Precious Kapfumvuti (Precious).

Her evidence was that she was raped on several occasions during the period stretching from 2007 to 2013, having succumbed to the appellant's exercise of authority rather than physical force.

It is submitted, for the appellant, that, her assertion of having been subjected to indoctrination cannot be sustained. She understood the nature of the sexual acts that she engaged in and the appellant's influence could not have deprived her of the capacity to give her informed consent. Moreover, her explanation for having reported the alleged rapes at a late stage is totally unreasonable. She could have reported the matter to various people over the years and after she left the appellant's premises in 2013. It is further submitted that her misrepresentation of certain biblical passages that she relied upon while giving evidence in court rendered her veracity questionable.

In short, she willingly subjected herself, sexually, to the appellant as an integral part of worshipping him and then later changed her position after talking to others.

Counsel for the respondent submits that the appellant stood in the position of being a guardian over Precious Kapfumvuti. She received counselling and religious teachings from him, including the notion that a master could do as he willed with his servant. The subjective effect was that she believed what she was told by the appellant about his authority and that differences between them should not be taken to court for fear of her being placed in the hands of Satan. It is further pointed out that she did report her first rape to a fellow congregant but no assistance was forthcoming. Thereafter, she was always accompanied or guarded either by the appellant's principal wife or by his brothers. She therefore remained silent out of fear and eventually escaped after realizing that what the appellant was doing to her was wrong.

Count 7 pertains to Winnie Sakahuhwa (Winnie).

Counsel for the appellant submits that she was aware of the appellant's reputation before she went to stay with him in December 2011. Nevertheless, she allowed herself to be sexually intimate with him. In effect, she consented to sexual intercourse because of his authority and understood sex with him as being necessary to create a bond between them. Moreover, her account of one of their sexual encounters is physically improbable in terms of their respective bodily positions. She admits to having denied any sexual assault when queried by at least three other people and did not even confide in her mother after police investigations had commenced. Additionally, her mother's evidence does not corroborate that of Winnie Sakahuhwa and the former could not explain why the latter did not confide in her. Again, Winnie did not make any report to the representatives of Child Line who attended her school for counselling.

For the State, it is submitted that Winnie Sakahuhwa was warned by the appellant not to make any report because she would then be placed in the hands of Satan. She genuinely believed his teachings. She did not tell her mother anything about her sexual assaults because her mother suffered from hypertension and she did not want her to be over-stressed. Furthermore, she did not report her predicament to anyone else because the appellant claimed that the police belonged to him. She only reported the matter to the police after learning of his arrest and realising that he was not invincible.

Counts 8 and 9 relate to Hazvinei Samanyanga (Hazvinei).

As is correctly pointed out by counsel for the appellant, the court a quo entertained considerable doubt as to the propriety of the appellant's conviction on Count 9.

The learned judge found that it was possible that she may have been raped on the first occasion (Count 8) as her evidence was credible on that score. However, she appears to have acquiesced to sexual intercourse on the subsequent occasions (Count 9), having voluntarily returned to the appellant's residence during weekends.

Moreover, she spent several months in South Africa before reporting the matter to the police when they contacted her in connection with Precious Kapfumvuti.

These are matters that were not adequately interrogated by the Magistrates Court.

Counsel for the respondent submits that Hazvinei Samanyanga's evidence, on Count 8, shows that she was forcibly raped on the first occasion and that the appellant was correctly convicted on that Count. He concedes, however, that her conduct in respect of Count 9 was inconsistent with the absence of consent, particularly as she continually returned to the appellant's residence of her own accord.

Count 10 pertains to the appellant's unlawful possession of two obscene DVDs.

There is no doubt that the appellant was properly convicted on this Count.

At the hearing of this appeal, counsel for the appellant quite correctly abandoned the technical point raised in his heads of argument as to the propriety of inspecting the material in question after the appellant was arrested.

As regards the concurrent sentence of four (4) months imprisonment imposed by the learned magistrate, the court a quo highlighted the obvious misdirection of the magistrate in failing to provide any reasons for sentence.

In any event, as was accepted by counsel for the appellant, this misdirection has been rendered academic and irrelevant by the fact that the appellant has already served four (4) months in prison following his conviction on 31 January 2014.

As regards the credibility of witnesses, the general rule is that an Appellate Court should ordinarily be loathe to disturb findings which depend on credibility.

However, as was observed in Santam BPK v Biddulph (2004) 2 ALL SA 23 (SCA), a court of appeal will interfere where such findings are plainly wrong.

Thus, the advantages which a trial court enjoys should not be over-emphasised. Moreover, findings of credibility must be considered in the light of proven facts and probabilities.

In the instant case, the learned magistrate convicted the appellant on four out of the total nine counts of rape. He rejected the testimony of three complainants and acquitted the appellant in respect of the five counts pertaining to them.

With respect to the three complainants presently under consideration, his assessment of their credibility is not as detailed as might have been expected.

Nevertheless, I am not persuaded that any of his critical findings of credibility can be said to be manifestly wrong in light of the proven facts and probabilities of this case.

I am inclined to agree with the State that he correctly analysed the subjective effect of the appellant's behaviour and teachings on the complainants.

Admittedly, in so doing, he erroneously cited case authorities revolving around victims of rape who are mentally disordered or incapacitated and their capacity to consent to overtures and acts of sexual intercourse. However, as was correctly noted by the court a quo, the magistrate's reference to these cases was designed to show that the complainants were not freely consenting individuals.

His misquotation did not go to the root of the convictions and does not, in my view, constitute a fatal misdirection.

In the court a quo, the learned judge elaborated “the subjective nature of religious dogma” in more cogent terms.

To paraphrase and summarise his findings, the complainants were subjected to frequent indoctrination in the notions of total separation and submission to authority. They were not allowed to fraternise with their relatives and were conditioned to believe that matters of church should not be discussed with outsiders. The appellant displayed a pattern of predatory behaviour, characterised by rampant sexual perversion, manipulating and luring the complainants to accept and endure his deceptively benign patriarchal authority.

As was eloquently observed by Justice DOUGLAS in United States v Ballard 322 US 78 (1944), quoted by both of the courts below, religious doctrines and beliefs cannot be subjected to the rigours of legal proof.

I would take this sentiment further to opine, in the circumstances presented by this case, that the quasi-mystical force of religious dogma might overwhelm its conscripts and devotees to the point where it operates to vitiate and negate any meaningful consent to sexual abuse and exploitation by their spiritual masters.

Taking a broad conspectus of the facts and probabilities in casu, it appears to me that the complainants, having been enmeshed within the overpowering cocoon woven by the appellant, unwittingly succumbed to his sexual advances and predations. Thereafter, constrained by fear and misconception, they remained taciturn for several years and only reported their respective ordeals after appreciating the full nature of their sexual bondage.

To sum up, it must be accepted that there are certain deficiencies in the State case.

Nevertheless, I take the view that none of the grounds of appeal raised in this case is entirely sustainable.

Apart from the conviction on the second charge pertaining to Hazvinei Samanyanga (Count 9) and the sentence imposed in respect of the possession of obscene materials (Count 10), I am satisfied that the appellant has no prospects of success on appeal and that his appeal is doomed to failure.

In that event, he will remain subject to a prison term totalling 40 years, with a period to be determined suspended on condition of good behaviour.

The above conclusion does not necessarily end the matter.

An issue that was raised in the court a quo, but not addressed in its judgment, is the possibility of the appellant absconding in the event of being granted bail. I think it appropriate to deal with this aspect for the sake of completeness.

Counsel for the appellant submits that the appellant is unlikely to abscond because he has huge family responsibilities. Moreover, he is prepared to offer his main residence as security for bail.

Counsel for the respondent counters that the appellant will be induced to abscond by the presence of another charge of rape that is pending against him and because of the 40 years sentence imposed in respect of Counts 3, 7, 8 and 10.

I note that the pending charge arises from the same period but was deferred because the complainant in that matter had fallen pregnant. In any event, the appellant has denied that charge.

As was highlighted in Manyange v The State HH01-03, there is a clear distinction between the principles governing the grant of bail pending trial and those relating to bail pending appeal.

In the former situation, the presumption of innocence, which resides within the constitutionally guaranteed right to liberty, operates in favour of granting bail unless there are positive reasons for refusal.

In the latter situation, on the other hand, the presumption of innocence is inoperative because the accused is a convicted and sentenced offender. The accused must go further than showing that he has prospects of success on appeal. He must establish that there are positive grounds for granting bail and that the grant will not endanger the interests of justice.

In this regard, the public perception is an integral factor to be taken into account. Where the grant of bail would result in a public outcry, the courts should be slow to grant bail in order to safeguard the integrity of the justice delivery system: see Gardner v The State HH60-08.

The possibility of public outrage is something that I am not in a position to assess without any compelling evidence in that regard.

What is more significant in casu is that the appellant has not proffered any positive grounds for allowing him to proceed on bail.

The existence of a huge familial entourage, comprising 11 wives and 32 children, is a condition of his own making and does not really advance his claim to bail.

Moreover, he has failed to satisfactorily demonstrate his prospects of success on appeal.

Apart from this, there is nothing else to commend his right to liberty.

In my view, the prospect of a protracted prison term, coupled with his fresh experience of post-trial incarceration, affords abundant incentive for him to abscond.

In all the circumstances, I am amply satisfied that the appellant is not a good candidate for bail.

For all of the foregoing reasons, the appeal must fail and it is accordingly dismissed.

This is an appeal from the decision of the High Court sitting as an appellate court dismissing an appeal from the decision of the Magistrates Court against conviction and sentence for rape.

The appellant was convicted of rape, as defined in section 65 of the Criminal Law (Codification & Reform) Act [Chapter 9:23], by the Regional Magistrates Court on 25 September 2007. The allegations were that he had, on 4 September 2007, had sexual intercourse with a seventy-seven (77) year old woman, Evenesi Kanyimbo, without her consent….,.

He appealed to the High Court against both conviction and sentence. The appeal against conviction was on four grounds;

(i) The first ground was that the learned trial magistrate misdirected herself by convicting the appellant in light of the fact that the appellant gave a version of events which was reasonably possibly true and was not demonstrated to be false by the evidence led during trial.

(ii) The second ground was that the learned trial magistrate appeared to have unduly placed too much reliance on the age of the complainant and the fact that she broke down during her testimony.

(iii) The third ground was that the learned trial magistrate ought not to have placed any reliance on the medical report in arriving at the decision to convict.

(iv) The fourth ground was that the learned trial magistrate ignored the fact that beside the complainant's word, no other acceptable evidence was adduced to prove that the appellant raped the complainant….,.

The accused person in this matter was arraigned, initially, appeared before one magistrate charged with the offence of having sexual intercourse with a minor, as defined in section 70(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

Midway during those proceedings, they were stopped as the evidence led prompted the State to alter the charge to that of rape, as defined in section 65 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (hereinafter referred to as the Code).

The facts of the matter, as stated in the State Outline, point to the existence of a love affair between the accused and the complainant. It was alleged there in that the accused person, on an unknown date between December 2011 and October 2012 fell in love with the complainant and started having sexual intercourse with her and yet the complainant was aged fifteen (15).

In his Defence Outline, the accused person stated that he had proposed love to the complainant who accepted and that he had sexual intercourse with her by consent. He also told the court that the only problem was that the complainant's aunt caught them having sex in the bedroom and that is when they were later taken to the police.

The complainant, in her evidence, accepted that the accused did propose love to her but that she did not accept his proposal. She told the court that they lived in the same house with the accused who had his own bedroom.

The complainant said she shared a bedroom with her other two sisters and her aunt. She told the court that the accused person would give her monies to buy lollipops. She said on one occasion, the accused person raped her in the sitting room. On another occasion, the accused person raped her when she was in the bathroom. And yet on another occasion, the accused person raped her when she was in the bedroom sleeping on the floor. Her aunt and the other children slept on the bed. The accused came and slept on top of her whilst she was fast asleep. Her aunt woke up intending to go to the toilet and she saw the accused person on top of the complainant. The matter was then reported to the police.

Crucial from the complainant's version of events is that the report of the sexual assault was made after their aunt discovered it and she talks of several other occasions where the accused had forced sex with her. She says the accused person told her not to tell anyone and that she was afraid of her aunt.

The aunt confirms that indeed she discovered the accused sleeping on top of the complaint as she was leaving for the toilet. We are not told if ever the complainant screamed or showed any signs of resistance.

It is my view that the complainant's conduct on that night is consistent with the accused person's defence; that he went there on agreement with the complainant as she was his girlfriend. The aunt also says she never spoke to the accused about the issue until the day she came to give evidence in court.

Why would she not query what the accused person was doing?

She also said she did not know if the accused was in love with the complainant. A crucial question that the court should have asked itself, dealing with an unrepresented accused person, is that why would he sneak into a bedroom that is fully occupied by other people, including an adult, to commit an offence of rape? The second crucial question that the court should have asked itself is that why would the complainant be raped quietly in a bedroom with other occupants? The next crucial question that the court should have asked itself is, does the complainant have any incentive to lie against the accused person? Which incentive the court would have found in that they had been caught by adults and she could be denying the issue of consent to save her own skin. The next crucial question that the court should have asked itself was if the accused person's version could safely be dismissed as being improbable, unreasonable and not possibly true?

I do not think the accused's defence can be found as such in the circumstances I have just queried.

An accused person's defence should not be disbelieved by the court and rejected where what the accused person proffers as a defence cannot be dismissed as improbable, unreasonable and possibly untrue. The fact that he failed to ask certain questions in cross-examination of the aunt does not, in my view, render his defence improbable or untrue as the aunt's evidence did not, in my view, add much to the State case.

It is the complainant's evidence that was crucial.

The required standard of proof beyond a reasonable doubt was aptly put in the case of S v Makanyanga 1996 (2) ZLR 231. The court in that case stated thus:

“A conviction cannot possibly be sustained unless the judicial office entertains a belief in the truth of a criminal complaint, but the fact that such credence is given to the testimony of the complainant's testimony does not mean that conviction must necessarily ensue. Similarly, the mere failure of the accused to win the faith of the Bench does not disqualify him from an acquittal. Proof beyond reasonable doubt demands more than that a complainant be believed and accused disbelieved. It demands that a defence succeeds wherever it appears reasonably possible that it might be true.”….,.

The accused person's version that the complainant had consented has not been shown in the court record to be palpably false in my view.

It is for these reasons that we find that the conviction of rape, in contravention of section 65 of the Code cannot be safe in light of the factors alluded to herein. A proper conviction would be that of contravention of section 70(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code).

The conviction and sentence are accordingly set aside.

The accused, a 15 year old juvenile was charged with and convicted of rape as defined in section 65(1) of the Criminal Law (Codification and Reform) Act [Cap 9:23].

The accused raped a 14 year old neighbor during the night as they were both sleeping in the same hut. The accused is friends with one of the complainant's brothers. On the fateful night, the accused went to the complainant's home to see his friend. Unfortunately, the friend was not at home. When the complainant and her other brothers retired to bed the accused joined them. The complainant and her brothers were sleeping in the same hut. During the night, the accused raped her. The accused denied the charge and was convicted after a full trial.

I find the conviction proper and it is hereby confirmed.

The State further alleges that on a date unknown to the prosecutor, but sometime in December 2008, on 6 different occasions, at Richmond and Waterford in Bulawayo, the accused knowingly and unlawfully had sexual intercourse with his daughter, then aged 12 years, without her consent or realising that there was a real risk or possibility that she had not consented to the sexual acts.

The accused denied the rape allegations….,.

The Rape Charges

On the rape allegations, the State led evidence from the following witnesses: Maidei Chasi, Prisca Moyo, Barbra Mbizo and Rutendo Chasi.

I propose to analyse the evidence of each of the witnesses in turn:-

Maidei Chasi

She testified that on six different occasions, at Richmond and Waterford, at Bulawayo, during the year 2008, the accused ravished her and had sexual intercourse with her without her consent. She was in Grade 6 at the relevant time and aged 12 years.

Count One

On the first count, Maidei Chasi testified that sometime in 2008 her mother had gone away. She remained at the Richmond house with her father. One evening, after preparing a meal for her father, she went to sleep. The accused came to her bed and woke her up. He was carrying a bucket with water. He was not wearing any clothes, save for a towel wrapped around his waist. He warned the complainant not to say a word or he would kill her. The accused instructed her that she should not tell anyone what they were about to do. The accused ordered the complainant to undress. The complainant complied and she remained with a pant. The accused then instructed the complainant to go outside the house. Once outside, the accused ordered the complainant to face, East, West, North and South. The accused placed a white piece of paper in the bucket with water and then threw away the water. The complainant went back into the house to sleep. The accused later came and lifted the complainant from her bed. The accused threatened to kill the complainant if she ever told anyone what they were going to do. Despite protestations, the accused proceeded to remove the complainant's pant before inserting his penis into her vagina. The complainant said the accused made some coital movements and was breathing heavily. After the sexual encounter, the accused ordered the complainant to sleep. The complainant says when she asked the accused, the following day, what he had done, the accused replied that they were performing some rituals.

Count Two

On the second sexual encounter, the complainant said the accused repeated what he had done on the first occasion, save that on the second occasion he did not take her outside to face the four cardinal directions. The second sexual encounter occurred at the Richmond house. After having sex with her, without her consent, he threatened to kill her if she told anyone what had happened.

Count Three

The complainant testified that sometime in 2008, and at the same house, at Number 7 Sturton Drive, Richmond, Bulawayo the accused had sexual intercourse with her without her consent. The complainant said after the first incident the accused seemed to have gone into the habit of having sexual intercourse with her. Again, she did not make a report concerning the rape because of the threats made by the accused.

Count Four

The complainant testified that the fourth incident occurred at Waterford. The main house was occupied by another person whilst they used the cottage. The cottage had one room attached to a garage. The accused slept in the garage and the complainant and her siblings used the other room. The complainant stated that one evening, after preparing the evening meal for her father and brothers, they ate and then went to bed to retire. She stated that the accused had a tendency of having tea after the evening meal. The accused instructed the complainant to make him a cup of tea and bring it to his room (the garage). The complainant complied with the accused's demands. She took the tea to her father's room and as she was about to leave the accused reminded what would happen to her if she told anyone about what they had done at Richmond. The accused told the complainant that it was all about a family ritual. The complainant asked the accused whether he wanted to do what he used to do to her before. The accused did not respond. He instructed her to get onto the bed. The accused removed the complainant's clothes and had sexual intercourse with her without her consent. He, again, threatened to kill her if she told anyone about the sexual act.

Count Five

The fifth sexual encounter occurred at Waterford. On this day, the complainant said that her father asked her to prepare some food and bring it to his room. The complainant said she decided to prepare the meal and the cup of tea at the same time. When she presented the tea and the meal at the same time to the accused said she should wait for him until he finished his meal. After the meal the accused ordered the complainant to get on the bed. The accused removed the complainant's clothes and had sexual intercourse with her without her consent. She says on that occasion he had been wearing a black suit just before the sexual act.

Count Six

On the last count, the complainant testified that one evening the accused came home and said they should not cook. He had brought some pizza and drinks. The accused went straight to his room. The complainant prepared some tea for the accused and took it to him. The accused did not drink the tea. He ordered the complainant to get onto the bed. The complainant said she knew what was to follow. The accused removed her dress. The accused had sexual intercourse with the complainant without her consent.

The complainant said that on one occasion that year some people came to her school and spoke about child sexual abuse. She was hesitant to make a report but she made a decision to approach one teacher whom she thought she could trust. She told her story to Prisca Moyo, a teacher at Waterford Primary School. The following day, the complainant was called by Prisca Moyo who was in the company of other school teachers. She was asked to narrate her ordeal which she did. She was told to bring her mother to school. The complainant told the teachers her mother was away.

It is not in dispute that the complainant's mother later went to the school and discussed the matter with the teachers. The matter was referred to Childline but the outcome of the reports are not entirely clear. What came out of the evidence is that the deceased's aunt was summoned from Marondera and when she came she was upset at the reports and said the issue would be resolved as a family affair.

We found the evidence of the complainant to be straightforward and credible. The reports she made to her teachers were corroborated.

Prisca Moyo

This witness testified that she is a teacher at Waterford Primary School, Bulawayo. Sometime in 2008 she was approached by the complainant, at her house, who made certain allegations against her father. She informed the court that the complainant told her that her father had sexual intercourse with her on a number of occasions saying what he was doing was in accordance with his custom. The complainant confirmed that the accused had penetrated her. This witness said that she referred the issue to the school Head who then dealt with the issue.

The evidence of this witness corroborated the evidence of the complainant in material respects. It is evident that when the sexual acts occurred, the complainant's mother was not at home and therefore the accused had the opportunity to abuse the complainant. The evidence of the witness was not contradicted in any way.

Barbra Mbizo

This witness is also a teacher at Waterford Primary School, Bulawayo. She was a teacher at the school at the relevant time. She knew the accused person prior to the offence. She knew him as a resident of Waterford.

This witness essentially corroborated the testimony of Prisca Moyo. She narrated how the complainant had given details of the alleged rape at the hands of her father, the accused. The witness confirmed that the accused's sister had come to the school to inform them that it had been a mistake to report the case to the school authorities and that the issue should be resolved as a family issue.

In our assessment, the evidence of this witness was credible. Her evidence was not contradicted under cross-examination and there was no reason for her to exaggerate. We believed her evidence as a truthful version of what transpired.

Rutendo Chasi

This was the last State witness called by the State on the rape allegations. She is now aged 45 years. She is the accused's daughter. The complainant is her half-sister. The deceased, Dorcas Majola, was her step-mother.

She testified that, sometime in 2008, the deceased informed her that the complainant had made a report at school about a certain issue and that the school authorities had invited her (deceased) to come to the school. The deceased asked if this witness could accompany her to school. The witness confirmed that the complainant narrated how the accused had sexually molested her on diverse occasions. The witness further confirmed that according to the complainant the accused had said that the complainant must have sexual intercourse with him as part of some rituals that would enhance his wealth.

This witness, however, gave a somewhat different version of what actually transpired. She testified that the complainant said she had been made to undress by the accused; the accused had then penetrated the complainant and then taken semen from his male organ which he placed in a bucket with water and made the complainant to bath in the water. This witness stated that when the complainant was pressed on whether penetration had indeed occurred she said that the accused had not effected penetration.

The witness further said she personally did not confront the accused about the allegations because she was not comfortable with the issue. It was quite evident that Rutendo was not a comfortable witness. She was at pains to agree that the complainant was not prepared to report the matter to any of the close relatives, choosing to report to the teachers at school, because she was not sure whether her report would be taken or even accepted.

In our view, the evidence of Rutendo Chasi strengthens the view that the report by the complainant was not a fabrication. The report was made in 2008, and with the assistance of accused's relatives, the matter was swept under the carpet. It is therefore safe to accept the evidence of this witness where it corroborates the version of the complainant.

Analysis of Evidence and Findings

This matter involves child sexual abuse. The accuser in this matter was a 12 year old daughter of the accused. Such matters are difficult to deal with and the court must take special care to ensure that the danger of false incrimination is eliminated. It is necessary to delve into the evidence of the complaint and seek to establish whether the evidence is credible, reliable and consistent.

In all six counts, the modus operandi is the same.

The complainant was faced with her own father demanding sex from her for “supposedly” ritual purposes. The accused stood in a position of authority in relation to the complainant. Besides her own mother, her father was the ultimate authority. Her narration of events reads and sounds true and credible. There appears to have been no motivation for her to fabricate the events. She was able to describe, in detail, all the six events with a reasonable degree of clarity and consistency. Her story did not waiver or crumble under intensive cross-examination by defence counsel.

We found the complainant to be credible and worthy of belief and therefore accept her evidence as being truthful.

The accused person proffered a feeble defence to the rape accusations. His claim that the deceased's relatives had conspired with the complainant to avenge the death of their relative lacks any cogency and cannot be acceptable. The facts show that the allegations of the sexual assaults were made in 2008 - before the death of the deceased. At the time the allegations were made, the accused was conspicuous by his absence in that he did not come up to deny the allegations or to explain what problems there could have been with the complainant at that time. It is interesting to observe that the accused's sister travelled all the way from Marondera to Bulawayo to advise the school authorities at Waterford Primary School that it was a mistake to report the matter at school. The matter was a family issue. With that, the matter was taken no further.

It is not for the complainant, who, at the time, was a child to explain why the matter was not taken to the police. It seems to us, however, that the accused's hand was involved in the arrival of his sister at Waterford Primary School to ensure that the allegations levelled against him would be concealed. The court also noted that in any event, the allegations were never pursued because the accused was then arrested and sentenced to serve a prison term around that same time.

In our view, the evidence against the accused, on all six counts of rape, is compelling and indeed overwhelming. There can be no realistic possibility for the complainant to have concocted the allegations against the accused.

Accordingly, and in the result, the State has proved its case beyond reasonable doubt and the accused is found guilty, in respect of all counts, of rape.

The case for the State was that the then 47 year old appellant was a school teacher at Foundation College in Bulawayo. At the same time he was a private tutor for the 16 year old complainant. On 4 March 2012 the complainant had attended a lesson at his lodgings in Tshabalala suburb, Bulawayo and had paid her fees for the extra lessons, in the sum of $24=, to the appellant.

At around 1300 hours, the complainant was leaving the appellant's house when the latter called her back and asked her to formally hand in her assignment. This forced the complainant back into the appellant's house where she picked up the exercise book intending to hand it to the appellant but he took advantage to close the door and lock it. He fondled the complainant's breasts before inserting his finger into her vagina and then pushing her onto the bed where he pinned her down using his knees and forcibly had sexual intercourse with her.

It was common cause that after the event the complainant left the appellant's home in a huff and was heard saying; “men are dogs.” It was common cause that the appellant tried to give the complainant the $24= she had paid him but she turned it down. It was also common cause that immediately after she left, the complainant went straight home and reported the sexual attack to her mother and that her parents immediately confronted the appellant at his home before a report was made to the police.

The appellant admitted the act of sexual intercourse with his 16 year old pupil but said that it was consensual with a girl who was prostituting herself, she having accepted a dollar airtime and $3= on a previous encounter during the third week of February 2012 and $4= on another occasion he could not particularise in return for sexual favours.

The court a quo embraced the evidence of the complainant which found corroboration in that of her mother. It found that the State had proved its case beyond a reasonable doubt and convicted the appellant. The court's task was made easier by the medical evidence which was unchallenged. The medical doctor who examined the complainant, a day after the event, on 5 March 2012, confirmed not only that penetration had taken place but other evidence of forced entry. On evidence of penetration he remarked:

“Definite penetration effected as evidenced by bruising on anus and hymenal tears.”

Counsel for the appellant conceded that the medical evidence was not consistent with consensual sexual intercourse. He however insisted that the complainant had consented to sexual intercourse because she had not screamed to raise alarm which would have drawn the attention of other people who were nearby including Nicholas Hlatswayo who testified as a defence witness that he was sitting “about 5 metres from accused's room.” Counsel for the appellant submitted that the door and windows were open, and, as such, if the complainant was not consenting she could have easily escaped. He added that the fact that the appellant was able to put on a condom in the presence of the complainant before the act also pointed to consensual sex.

I do not agree.

While it used to be a requirement for the court trying cases of a sexual nature to apply the cautionary rule because of the danger of false incrimination by not only believing the complainant but also to seek corroboration or evidence excluding such danger, that approach was thrown out through the window by the Supreme Court in S v Banana 2000 (1) ZLR 607(S). The position of our law now is that it is no longer warranted to rely on the cautionary rule of practice in such cases.

However, the courts are still required to carefully consider the nature and circumstances of the alleged offence.

One of the strongest evidence which the State may rely on is the medical evidence. Where the medical evidence led by the State shows injuries consistent with forced sexual contact that will be cogent evidence of the complainant's allegation of rape.

I have already referred to the doctor's findings on the injuries sustained by the complainant, in particular the bruises to her anul cavity which are consistent with rape and completely at variance with what the appellant sought to suggest in court that he had routinely indulged in sexual activity with the complainant as he had done before on two other occasions.

In addition to that, the conduct of the complainant immediately after the sexual experience is consistent with absence of consent. As she left the appellant's house she was cursing and bitterly complained that “men are dogs.” When the appellant offered her the $24= she had paid for tutorial fees, she sharply rejected the money before finding her way to her home in another suburb, Nkulumane 12, which is a considerable distance away from Tshabalala.

Upon arrival at home she was still seething with anger. She reported the rape to her mother. That conduct cannot be said to be that of a naughty girl who took the initiative of soliciting for sex from her tutor and demanded payment for services rendered. If she was that kind of person she would have accepted the money- but she did not. In fact, the entire defence of the appellant constituted an un-mitigated insult on the complainant whose trust had not only been betrayed by a tutor 31 years her senior but betrays immeasurable disdain, disrespect and lack of contrition by an un-repentant rapist deriving sadistic pleasure out of victimizing a girl young enough to be his last born daughter.

Lack of consent is not determined by the question of whether the complainant put up a bulldog fight to ward off an attack or whether she screamed herself hoarse during the attack. The appellant wallowed under that misapprehension as it is not all cases of rape where the victim has to express her disapproval by screaming. It will help those who engage in such activity to appreciate that when a woman says “No” she means No. No can never be “yes but no.” See S v Nyirenda 2003 (2) ZLR 64 (H)…,.

In our view, the State managed to prove the commission of the offence beyond a reasonable doubt. The findings of the court a quo in that regard cannot be faulted….,.

1. The appeal against conviction is hereby dismissed.

The appellant was, on 19 January 2015, convicted of rape in contravention of section 65(1)(a) of the Criminal Law Code [Chapter 9:23] after a full trial….,.

He was dissatisfied with the conviction only and noted an appeal to this court on the grounds, inter alia, that the complainant was not a credible witness; that there were serious discrepancies between the State Outline and the evidence led by the State; and that the complainant had gone to put up at the appellant's house freely and voluntarily and that for that reason sexual intercourse was consensual.

It is an appeal which is strongly contested by the State on the basis that there was no misdirection whatsoever on the part of the court a quo in its findings, and, as such, the appellant was properly convicted.

Counsel for the appellant submitted, in the main, that the appellant and the complainant were once lovers and that it is not clear when the relationship was terminated. The court should have taken that into account in determining whether sexual intercourse was consensual or not.

The facts are generally common cause. The appellant is a member of the SDA church while the complainant is a fellow church member and a former girlfriend of his. On 15 June 2013 they, along with other church members, had gone for a church crusade at Mawabeni in Esigodini and only returned late at night. With the driver of the minibus they were using having allegedly run out of fuel and unable to deliver them to their respective homes, the complainant and her sister went to sleep at the appellant's house in Mzilikazi fearing having to find their way home as danger is always lurking on the way at night.

At the appellant's house, the complainant was severely assaulted by the appellant and sustained serious injuries which were still visible when she appeared to testify in court on 20 August 2013 - more than two months later. Hence, the magistrate was able to observe that “at the time she testified, complainant's eye was visibly still swollen. She had a black eye…,.”

She also had sexual intercourse with the appellant which she says was rape but the appellant says it was consensual. The issue which the court had to decide was whether intercourse was consensual or not.

The complainant narrated what had transpired on the night in question at the appellant's house. She said they had arrived in Bulawayo at around 2100 hours in a hired minibus which was supposed to deliver them to their homes but the driver could not do so as he said he had run out of fuel. Not even an offer to pay him more money could persuade him to deliver them to their homes. She was in the company of other members of the church including the appellant and one Mathe.

When she suggested that they would walk home other members of the church discouraged her as walking at night was dangerous. They suggested, instead, that herself, her young sister and Mathe should seek refuge at the appellant's house in Mzilikazi, Bulawayo. She reluctantly compiled.

At that house, the appellant and Mathe were cooking while watching soccer. When she wanted to retire to bed with her young sister the appellant requested to talk to her in private. As Mathe occupied the sitting room while watching football they treated to the appellant's bedroom to talk. The appellant was on bended knees when he asked her for reconciliation because she had, some weeks earlier, terminated their relationship after she had found nude pictures of a woman in his cellphone. That night, of course, she was to be another victim of nudity when the appellant took pictures of her private parts after forcibly having sexual intercourse with her.

The complainant says she refused to reconcile with the appellant making it clear that she was no longer interested in him and did not love him anymore. The appellant forcibly kissed her. When she received a call on her cellphone the appellant got angry and started assaulting her with open hands asking about the person she was talking to. He continued assaulting her and also strangled her. When she screamed he put a teddy bear in her mouth and increased the volume of music playing on his laptop connected to speakers.

While still assaulting her he ordered her to lie on the bed and remove her clothes. He then removed his clothes telling her that he wanted to find out if she still had feelings for him. Although she told him she no longer had feelings for him he insisted that he wanted to taste a prostitute from the Seventh Day Adventist Church. He forced open her legs cursing that she did not know who he was. He then forced himself on her. After the act he sarcastically asked her if she was feeling any pain and whether he was not better than her boyfriends. He brought water to soothe her and food to eat but she refused to partake in any of that. When she dressed up and tried to leave the bedroom he told her he wanted to taste her for the last time. He tried to force her to hold his penis and insert it in her vagina and when she refused he did it himself and had sexual intercourse with her for the second time without her consent.

After the second act he interrogated her demanding to know if she still had no feelings for him insisting that she should look him straight in the eye. When she did not, he twisted her neck demanding to be looked in the face. The ordeal lasted more than two hours. At the end of what must have been a harrowing experience the appellant is said to have taken his camera and photographed her private parts. He threatened her with disappearance or that he would cut her into pieces.

The appellant's version was that it is the complainant who seduced him and lured him into the bedroom where they had consensual sexual intercourse. It was after the act that he found her talking on the phone. He interrogated her until she confessed to having affairs with two other men. He then assaulted her and promptly terminated their relationship.

In deciding which version to accept, the court a quo took into account the following, namely;

(a) That the complainant had been forced by circumstances to go to the appellant's home. It was late at night; the minibus driver refused to take them home and when they offered to walk other members dissuaded them because of the risk. The appellant and Mathe were trusted church members and the appellant offered shelter.

(b) During the night, the complainant was heard screaming (initially denied by the appellant but later admitted and explained as groans of sexual pleasure).

(c) There was high volume of music either from speakers connected to a laptop or from Happy Valley Night Club across the road, depending on whose version you work with, which muffled the screams.

(d) The complainant was severely assaulted by the appellant who inflicted serious and visible injuries.

(e) The complainant reported the rape immediately to her 17 years old young sister, a very impressive witness who charmed the court by her truthfulness and honesty.

All the above factors, which were generally common cause, vitiated consent.

One should add that after her ordeal the complainant left the appellant's bedroom leaving her clothes behind and did not put up with him for the night. She went and shared a bed with her young sister - something inconsistent with the picture of a seducer who was having a nice time with her boyfriend, which the appellant sought to portray.

Even the text message which she later sent to the appellant, vague as it was, was adequately explained as the fruit of despicable pressure from other church members, who should in fact be hanging their heads in shame for appearing to condone what was an unmitigated abuse of a 19 year old girl by a man 9 years her senior who simply could not accept rejection and thought he had a God-given right to do as he pleased on a defenceless and vulnerable church member. He took undue advantage of his religious association with the girl to turn her into a sex slave in the most ungodly manner.

In our view, the court a quo meticulously dealt with the evidence and correctly accepted the State case and rejected the version of the unrepentant appellant who, as late as then, still did not see anything wrong with battering a girl and having sex with her at the same time. It was typical behavior of a sexual pervert, a treacherous sadist who was deriving pleasure in torturing a young girl for warped sexual fulfillment or to force her to have feelings for him.

There was no misdirection whatsoever and this appeal is spectacular by its lack of merit. It is accordingly dismissed.

The issue in this matter which should have exercised the mind of the trial court is whether the sexual act between the accused and the complainant was consensual.

While the learned Regional Magistrate properly identified this issue she seemed to have somehow allowed her mind to wander rather aimlessly and failed to properly analyse the evidence placed before her. The judgment by the learned Regional Magistrate is rather perfunctory.

After realizing that there is a potential grave miscarriage of justice in this matter when the record was referred to me for automatic review I decided to seek the Prosecutor General's views on the propriety of the conviction in accordance with the provisions of section 29(1)(c) of the High Court Act [Chapter 7:06]. It provides as follows;

“29. Powers on review of criminal proceedings

(1) For purposes of reviewing any criminal proceedings of any inferior tribunal, the High Court may exercise any one or more of the following powers -

(a)…,.

(b)…,.

(c) Where the proceedings are not being reviewed at the instance of the convicted person, direct that any question of law or fact arising from the proceedings be argued before the High Court by the Prosecutor General or his deputy or any legal practitioner appointed by the High Court.”

I am indebted to Mr Zvekare of the National Prosecuting Authority for his well-researched and presented response. Indeed, my fears were confirmed. Mr Zvekare believes there is a miscarriage of justice in this matter.

I now turn to the matter in question.

The 22-year-old accused was convicted, after trial, by the learned Regional Magistrate sitting at Masvingo for raping a 20-year-old complainant in contravention of section 65(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The offence is said to have been committed on 23 September 2015 at Chamakani Village, Chief Chikwanda, Gutu in Masvingo.

The accused and the complainant are fellow villagers and they fell in love in July 2015. The complainant, who is an orphan, stayed at her uncle's homestead but was alone most of the time as the uncle and his wife would be away at work at some school where the uncle teaches. The accused had therefore unlimited access to the complainant except over the weekends when the complainant's uncle would be at home. The complainant had completed her 'O' level but it is not clear when this was.

The State case is that on 23 September 2015, during the night, the accused visited the complainant in the company of the complainant's cousin, Denis Nyamukamba, and another boy called Chamuka Majoni at about 20:00 hrs. After some time the accused remained with the complainant. The State alleges that the accused caused the two boys to leave. The accused is alleged to have unsuccessfully requested to be intimate with the complainant. The complainant remained dis-interested and told the accused to leave. The accused is said to have refused to leave, and, instead, followed the complainant who had gone to her bedroom where he continued to beg to be intimate with the complainant to no avail.

It is the State case that after the accused realised he was unable to convince the complainant otherwise and obtain her consent he resorted to brute force in order to prevail upon the complainant and satiate his sexual desires. It is alleged he forcibly removed the complainant's blouse, bra, and pants. The accused also removed his trousers and pants. Again, using brute force, it is alleged the accused separated the complainant's legs and forcibly effected penile penetration. It is said after the forced sexual act the accused locked the complainant inside the house, took the keys, and went to his residence.

It is alleged that on an unspecified date the complainant fell ill. She was taken to Harare for medical attention. It was thereafter discovered that she was pregnant. It is at that stage the complainant revealed that she had been impregnated by the accused and that the preceding sexual act was non-consensual on 23 September 2015.

This resulted in the accused's arrest.

As per the medical report, the complainant was examined on 4 December 2015 and found to be 3 months pregnant. Needless to state that her hymen was found to be not intact and that indeed penile penetration was confirmed. At the time the matter was tried the complainant had given birth to twins.

The accused's basic defence, which he maintained throughout the trial, is that he had consensual sexual intercourse with the complainant who was his girlfriend. In fact, the accused revealed that he had several sexual acts with the complainant after 23 September 2015 as the complainant's relatives who stayed with her would be away. The accused said what led to his arrest is that when it was discovered that the complainant was pregnant he declined to marry her. A report of rape was then made to the police. The accused said on 23 September 2015, when he had consensual sexual intercourse with the complainant, he never chased away the two boys who were in his company but they left in order to allow him to have quality time with his girlfriend.

The issue which should have loomed large in the mind of the trial court is to exclude the possible danger of false incrimination in this case.

This is so because the accused and the complainant were in love. The matter only came to light when the complainant fell ill and or was pregnant. No timeous report of rape was made. The date the report was made is not even clear. The accused gave a possible motive for the complainant to allege non-consensual sexual act. These are the critical issues the court should have grappled with to ensure that the danger of false incrimination was eliminated.

The State led evidence from two witnesses only, being the complainant, Melody Matereke, and her aunt, Pettie Tigere who resides in Hopley, Harare. The accused gave evidence. He intended to call the two boys who were in his company but it is not clear why these two boys did not testify.

It is useful to summarise the evidence placed before the trial court in order for one to appreciate the deficiencies of the State case.

The complainant

According to the complainant, she fell in love with the accused in August 2015. Most of the time she would be alone at home as her uncle and his wife would only be available during weekends. The accused would visit her to while up time as he did in the company of the two boys on the night of 23 September 2015.

It is the complainant's evidence that the accused asked the two boys to leave as the accused wanted to discuss certain issues with the complainant. She said after the departure of the two boys the accused asked to be intimate with her but she told the accused that she would only be intimate with him after marriage. An argument then ensued between the two until she told the accused to leave as she wanted to retire to bed. The complainant said she was holding keys to her bedroom; the accused snatched them and put them in his pocket. She proceeded to her bedroom to retire leaving the accused outside.

The complainant said after a while the accused followed her in the bedroom and locked the door. She said the accused joined her on the bed and started to caress her. She inquired from the accused what he was up to.

The complainant explained how she said the accused raped her. She said the accused proceeded to tear her skirt as he pinned her down on the chest. She, in turn, proceeded to bite the accused on his hand but did not inflict any visible injuries. She tried to push away the accused but he overpowered her and inserted his penis into her vagina after pulling down her pants. It was her first sexual experience and felt pain inside her vagina. She bled from the vagina. The accused told her not to scream. She did not scream. The accused completed the sexual act, stopped on his own, and wore his clothes. Thereafter, the accused locked her inside the bedroom from outside as he went to his residence and left with the keys. She said the accused later gave one of the two boys, Denis Nyamukamba, the keys but by then she had used spare keys to open the bedroom. The next day she said she washed the blood-stained blankets.

The complainant explained how the matter came to light. Without giving dates, she said she fell ill and was taken to hospital where she was given tablets. She said she only revealed the rape to her aunt in November 2015 after she had been taken to Harare because of her illness. She said she was vomiting and after being questioned by her uncle and aunt in Harare who told her not to waste resources she decided to reveal the rape.

The evidence of the complainant is rather unclear on why she did not make a timeous report. Her explanation is that she was staying alone at the homestead and the uncle she stayed with only came home with his wife during weekends. She said when her uncle came home during the weekends she could not reveal the rape for fear of being chased away from home as an orphan. She had nowhere else to go. Further, she said she did not disclose the rape to Denis Nyamukamba, who had been given the keys by the accused, as she was ashamed. In fact, the complainant said had it not been for the pregnancy she would not have revealed the rape since she thought she would be accused of misbehaving. She disputed that there were any arrangements made for her to marry the accused.

The accused, despite being a self-actor and feeble in his cross examination, did, nonetheless, put pertinent questions to the complainant. The following exchange took place between the accused and the complainant;

“Q. Why did you not tell others that you had been raped?

A. I did not tell anyone because my parents passed on and I grew up being looked after (sic). I would be told that if I misbehaved I would be left alone. I even wanted to commit suicide.

Q. If you had not fallen ill were you going to report the rape?

A. No.

Q. Would you have been chased away from home for being raped?

A. Yes, I could be chased away from home depending with the guardians who were looking after me (sic).”

The learned trial Regional Magistrate did not put any questions to the complainant in order to appreciate her mindset as to why she did not make a timeous report. No follow up was made to the questions put to the complainant by the accused.

Pettie Tigere (Pettie)

Pettie Tigere is the complainant's aunt who resides in Hopley, Harare. She is the first person to whom the complainant disclosed the alleged rape and therefore sheds light on how the matter came to light.

Pettie testified that she was advised by the complainant's custodians at the rural home in Gutu that the complainant was ill. A decision was made that the complainant should proceed to Harare for possible treatment. Pettie said upon the complainant's arrival her husband suspected that the complainant could be pregnant as the complainant would vomit after eating food. This prompted them to question the complainant. The complainant then disclosed that the accused had raped her after he had chased away some two boys and locked her inside the bedroom. In fact, Pettie, contrary to the complainant's evidence, said she was only rescued by one of the two boys after the accused had locked her inside the bedroom and later gave the keys to one of those boys. Contrary to the complainant's evidence Pettie Tigere said the complainant's report was that she cried out or called out for help during the rape hoping her neighbours could help her, but, apparently, no one heard her distress call. As regards why she had not made a timeous report of the alleged rape the complainant's explanation to Pettie was that she was afraid that her uncle's wife would assault her.

According to Pettie, after the complainant disclosed the alleged rape they sent her back to rural Gutu where it was confirmed that she was pregnant at the local hospital. Again, contrary to the complainant's evidence, Pettie said the complainant was thereafter taken to the accused's home for possible marriage but apparently the accused was unwilling to take the complainant's' hand in marriage and the complainant was returned to her home. It was only after this that a report of rape was made to the police leading to the accused's arrest. Again, Pettie Tigere was not probed why the accused was being asked to marry the complainant if indeed he had raped her.

The accused

The accused's version is that indeed he first had consensual sexual intercourse with the complainant on 23 September 2015 but that sexual intercourse took place several times thereafter until about 5 October 2015. The accused reiterated that he did not forcefully have sexual intercourse with the complainant and that none of the complainant's clothes was torn. In fact, the accused wanted to call the two boys who were in his company but they were not available at court and he was asked if the matter could proceed without them. As a lay person he agreed.

This was the evidence placed before the trial court.

In its judgment, the trial court never made any meaningful attempt to analyze the complainant's evidence. All what the learned trial Regional Magistrate said is that the complainant gave her evidence well and that the court would accept her testimony. No basis was outlined as to why the complainant's evidence was acceptable and the accused disbelieved. The court went further to accept that indeed the complainant did bite the accused during the sexual act without explaining why it accepted such evidence, moreso as no injuries were inflicted on the accused. Amazingly, the finding by the trial court was that the complainant made a voluntary report of rape to Pettie Tigere in Harare and did not bother to analyse the circumstances under which that report was made. To cap it all, it was the trial court's view that a timeous report of rape was made by the complainant since she was allegedly raped in September 2015 and disclosed the alleged rape in November 2015!!

In fact, out of the many reasons the complainant gave for not disclosing the alleged rape timeously the trial court simply picked one reason and justified her conduct on the basis that as an orphan she was afraid to be chased away from home by her custodians. The reasonableness or otherwise of such a reason by a 20-year-old girl who had completed 'O' level was never considered.

A proper assessment of the complainant's evidence clearly shows that it does not meet the requirements of admissibility as espoused in our law. In a seminal judgment which is the locus classicus in a case of this nature GUBBAY CJ, in S v Banana 2000 (1) ZLR 607 (S)…, set out in very lucid and simple terms how the court should approach complaints made in sexual matters as follows;

“Evidence that a complainant in an alleged sexual offence made a complaint soon after the occurrence, and the terms of that complaint, are admissible to show the consistency of the complainant's evidence and the absence of consent. The complaint serves to rebut any suspicion that the complainant has fabricated the allegations.”

The learned Chief Justice went on to state as follows;

“The requirements for admissibility of a complaint are;

1. It must have been made voluntarily and not as a result of questions of a leading and inducing or intimidating nature. See R v Petros 1967 RLR 35 G at 39 G–H.

2. It must have been made without undue delay and at the earliest opportunity in all the circumstances, to the first person to whom the complainant could reasonably been expected to make it. See R v C 1955 (4) SA 40 (W) at 40 G–H; S v Makanyanga supra at 242 G–243 C [1996] (2) 2LR 231 (H).”

It is abundantly clear from Pettie Tigere's testimony that the complainant did not make a voluntary report of rape. The complainant fell ill in rural Gutu and went to hospital where she got treatment as per her evidence. She did not disclose the rape. The illness remained un-abated and still she decided not to disclose the alleged sexual assault. A decision was then made to take her to Harare for treatment but she still did not reveal anything. It was in Harare that Pettie's husband, sensing that she could be pregnant as she vomited after taking food, who questioned her if she was pregnant and that she should not waste resources as it were. It was only after this probing that she then revealed the sexual act between her and the accused in rural Gutu. In fact, the complainant herself stated that if she had not fallen pregnant (or ill) she had no intention to reveal the alleged rape.

There lies the problem with her testimony. She had to be probed in order to reveal the alleged sexual assault.

It is clear that the complainant did not make a timeous report of the alleged rape. From the evidence led she could have made the report to Denis Nyamukamba who brought to her the keys she said the accused had taken that same night. She did not. Her explanation is that she was ashamed to disclose such an issue to Denis. The next day she did not disclose the alleged rape to any of her relatives or neighbours. Again, when her uncle and his wife came home she made no report of the alleged rape. Even when she fell sick and was hospitalised she remained mum about what she alleges had been done to her. She had to travel from Gutu to Harare where she disclosed the alleged rape - after being confronted that she could be pregnant. A period of about two months had lapsed. To cap it all, she gave various reasons as to why she did not make the report without undue delay. These range from personal shame, fear of assault, and her personal circumstances as an orphan.

In my respectful view, the complainant is not a toddler who did not fully appreciate what the accused had done to her. She is an adult girl who had long completed 'O' level. The explanations she gave for not disclosing the alleged rape timeously are not only implausible but unreasonable in the circumstances.

The conduct of the complainant leaves much to be desired and negatively impacts on her credibility. It is not clear as to what she did with the alleged torn skirt. She decided to destroy the available evidence by washing the bloodstained blankets.

The danger of false incrimination on the aspect of consent is very real in this case. The trial court should not only have been alive to such inherent danger but should have endeavoured to exclude it: see S v Zaranyika 1997 (1) ZLR 539 H…,. All what the trial court did was to accept the complainant's evidence hook, line, and sinker without appreciating the circumstances of the case that she was in love with the accused.

How then was this danger of false incrimination on the aspect of consent eliminated? Did the complainant not have a motive to misrepresent facts on the aspect of consent? Why was she taken to a rapist for possible marriage? Why was the report of rape only made to the police after the accused had refused to take her hand in marriage?

These are the questions which should have loomed large in the mind of the learned Regional Magistrate.

In my view, this was a poorly prosecuted case aided by the undiscerning mind of the trial court. The trial court should have been alive to the fact that this was an unrepresented rural accused person. Crucial witnesses in this matter were not called. These include the complainant's custodian who could have shed light on their relations with the complainant and whether her fears were indeed well grounded. The two boys who were with the accused and the complainant on the night of the alleged rape were critical witnesses. The Investigating Officer was not even called to explain as to what happened to the torn apparel of the complainant.

The trial court should have invoked the provisions of section 232 of the Criminal Procedure and Evidence Act [Chapter 9:07] which provide as follows;

“The court –

(a) May, at any stage, subpoena any person as a witness or….,.

(b) Shall subpoena and examine or recall and re-examine any person if his evidence appears to it essential to the just decision of the case.”

The duty of the court to assist an unrepresented accused was aptly put by McNALLY JA in the case of S v Ndhlovu 1992 (2) ZLR 231 (S)…, where the learned Judge of Appeal said;

“One final point needs to be made. The magistrate held it against the appellant that he did not put it to the complainant, in cross-examination, that he never inserted his hand in complainant's pocket. It is true he did not put it to the complainant. But it was clearly stated in his Defence Outline. If the magistrate thought the point should have been put - he should have put it himself…,. Such an intervention is not taking sides or 'entering into the arena'. It is simply an attempt to ensure that the accused's case is properly commented by the witness.”

The point is made, therefore, that the trial court should not simply draw an adverse inference from the accused's failure to raise certain points in cross examination when such points are apparent from the accused's Defence Outline. The trial court has a duty to assist an unrepresented accused to ensure that justice is done.

It is saddening that the trial court went on to convict the unsophisticated and unrepresented accused instead of giving him the benefit of the doubt in relation to the issue of consent. The doubt is created by the complainant's inconsistent and contradictory actions after the alleged rape. I have no doubt that the trial magistrate presided over a shoddy trial. This led to a miscarriage of justice. The danger of false incrimination on the aspect of consent is very real in this case. The accused ought to be given the benefit of the doubt in the circumstances. The conviction of the accused is clearly unsafe as the State failed to prove the rape charges against the accused to the required standard of proof in criminal matters.

Accordingly, the conviction of the accused is hereby set aside and the sentence quashed.

I have issued a warrant of liberation of the accused.

The general principles espoused in the cases of R v Petros 1967 RLR 35 and S v Banana 2000 [1] ZLR 607 [S] are that a complaint in sexual assault cases must be made freely and voluntarily, and without undue delay, to the first person to whom the complainant could reasonably be expected to have made it…,.

It is our considered view that some legal practitioners misconstrue the true import of the principles laid out in such cases as R v Petros 1967 RLR 35; S v Banana 2000 [1] ZLR 607 [S]; and S v Nyirenda 2003 [2] ZLR 64 [H], to mention just but a few. An early complaint in a rape case, or any other sexual offence, is admitted, not as proof of the rape or of the sexual offence. It is admitted, not to corroborate the complainant…,.. Rather, it is admitted to show consistency by the complainant. It is admitted to negative a defence that the act was consensual: see S v Nyirenda 2003 [2] ZLR 64 [H]…,.

This is an appeal from the Regional Magistrate's Court, Bindura. The appellant was convicted of rape as defined in section 65 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]....,. He appeals against both conviction and sentence. The appellant raises six grounds of appeal against conviction and a further four grounds against sentence.

(i) The first ground of appeal is that “the court a quo misdirected itself in failing to give a conscious consideration of the likely risk of false incrimination and ensure that false incrimination is excluded before exposing its complete confidence in the complainant.”

(ii) The second ground put forward on the appellant's behalf is that the court “erred in failing to discern that the version given by the complainant was fabricated by a spiteful young child and her custodian with a hidden malice for revenge after complainant had been assaulted by appellant's wife on the day in question.”

(iii) The third ground recites that “the learned magistrate erred and misdirected himself in holding that the bruises on complainant's labia were caused by the accused yet the tendered medical report did not rule out any previous genital sexual experience (sic) nor state whether the lesions were fresh or healed.”

(iv) The fourth ground states that the “the learned magistrate fell into error by being moved by a subjective and unduly sympathetic acceptance of the testimony of this eleven year old girl who was healthy and walked properly with a normal emotional state and who did not show any signs of distress and shock a day after the alleged rape upon examination thereby failed to discern that that version could not establish beyond reasonable doubt the guilt of the accused.”

(v) In the fifth ground, it is said that “the court a quo erred in failing to give due regard to the need for special caution in scrutinizing and weighing the evidence of a young complainant in a sexual case especially where the accused was unrepresented.”

(vi) Finally, it is said that “the court a quo misdirected itself in failing to call for the evidence of the examining medical officer to support his findings of legal penetration in a matter where the appellant insisted that he did not rape the complainant and the medical report indicating that no penetration was noted.”

The trial court convicted the appellant after a contested trial.

The State alleged that the rape occurred under the following circumstances. On the day in question, the complainant was coming from school in the afternoon. Her way passed through the appellant's homestead. When she got there, the appellant lured her into his kitchen hut with buns and mangoes. Once inside, the appellant grabbed her, removed her pants, laid her on a bench and raped her once. After this act, the complainant dressed herself up but soon thereafter, the appellant's wife entered the hut. After asking the complainant what she wanted, the appellant's wife slapped the complainant twice. The complainant left this homestead. She reported the rape that same day to her aunt who, in turn, alerted the complainant's parents. The next day, 12 February 2014, a report of rape was made to the police leading to the appellant's arrest. In the medical examination report compiled on the same day, the nurse noted that there were bruises on the complainant's private parts. He also noted that there was no penetration noted.

In his judgment, the trial magistrate remarked that the complainant gave an impressive account of the events leading to the allegations of rape against the appellant in a manner that hamstrung the appellant from meaningfully challenging her during cross-examination. Indeed, a reading of her evidence on the record justifies this conclusion. The aunt, Sarah Mbauya, who is the first responsible person to whom the complainant made a report of rape, gave evidence which, in essence, corroborated to detail the nature of the report that the complainant gave to her. In the end, the trial court rejected as false the bare denial given by the appellant in his defence.

In our view, the dangers of false incrimination were remote in this matter.

First, the appellant himself does not say he was falsely implicated in the offence. His defence is that he did not do anything to the complainant when she came round to his homestead. He states that the complainant had knocked and entered and sat on the bench where she remained until his wife came from church. He says his wife insulted the complainant and she left weeping. The appellant, under cross examination says that the complainant may have been influenced to lay these charges against him. He does not say who by or why that person would have done so.

It is only when the matter was on appeal that he claims that the complainant's friend may have influenced her to lay the charges of rape as revenge for the assault on her by his wife.

This, so the argument went, was done to fix both him and his wife for the assault upon her person when she found her inside the kitchen. But, this argument begs the question; why, in the first place, did the wife assault the complainant anyway?

In our view, the appellant's wife's reaction was actuated by a suspicion of some liaison of sorts between the two. She vented her frustration on the complainant.

The appellant alleges malice and revenge as the motivation for the report. A fair assessment of the evidence does not in any way suggest that prior to this encounter there may have been a source of malice between the appellant and the complainant. In any event, the older appellant was unable to controvert or cast doubt on the version of events as given to the trial court by the complainant. That, on its own, does not in any way render the complainant's evidence suspect. She told her friend what the appellant had done to her and her fears regarding how she would report to her elders; hence, the friend offered to accompany her to her aunt to make the report.

In short, the first and second ground of appeal must, for those reasons, fail.

The existence of bruises inside the complainant's private parts confirm her claim that she was ravished. Who did so? She says it is the appellant.

The appellant confirms, for good measure, the fact that on the day she claims this incident occurred, the complainant and himself were, at some point, alone inside his kitchen. There is, in our view, sufficient corroboration of the complainant's claim that the appellant raped her. That corroborative evidence also confirms her version of events so as to discount any possibility of false incrimination. As such, the need for special caution is obviated in the process. In our view, the overwhelming nature of the available evidence is such that there is no possibility of the appellant being falsely accused by the 11 year old girl. Thus, it is unfair to label the findings of credibility by the trial court as “subjective and unduly sympathetic acceptance.” The record does not support this type of criticism.

No-one adverted to the complainant's emotional state nor her gait soon after the incident. In our view, the finding of credibility is beyond reproach.

The third and fourth grounds of appeal cannot be sustained on the evidence on record. The need for caution appears to have been exercised from the reasoning of the court a quo.

In sexual assault cases, there is already one well-known exception to the rule against hearsay which holds that evidence of a complaint is admissible to show the consistency and therefore support the credibility of the person who gives evidence of being sexually assaulted. See S v Banana 2000 (1) ZLR 607 (S).

This general rule is, of course, subject to certain conditions, namely, that the statement was reasonably contemporaneous with the event in question and was not induced by improper interviewing techniques.

The complainant reported the rape promptly. The evidence was gathered quickly. The conviction is proper. The appeal against conviction must fail.

A rape report or complaint must be made without undue delay. It must be made at the earliest opportunity, which, under all the circumstances, could reasonably be expected, to the first person to whom the complainant could reasonably be expected to have made it: see S v Banana 2000 [1] ZLR 607 [S] and S v Nyirenda 2003 [2] ZLR 64 [H]....,.

A complaint in a rape case, or any other sexual offence, is admitted, not as proof of the rape or of the sexual offence. It is admitted, not to corroborate the complainant…,. Rather, it is admitted to show consistency by the complainant. It is admitted to negative a defence that the sex act was consensual: see S v Nyirenda 2003 [2] ZLR 64 [H]....,.

It is another trite requirement that for a rape complaint or report to be admissible, it must have been made voluntarily and not as a result of questions of a leading and inducing or intimidating character: see R v Petros 1967 RLR 35 [G]; 1967 [2] SA 497 [R] and S v Banana 2000 [1] ZLR 607 [S]. In a nutshell, the requirements for admissibility of a sexual complaint are:

[a] That it was made voluntarily and not as a result of questions of a leading and inducing or intimidating nature; and

[b] That it was made without undue delay but at the earliest opportunity, in all the circumstances, to the person to whom the complainant could reasonably be expected to make it: R v Petros 1967 RLR 35 [G]; 1967 [2] SA 497 [R]; S v Banana 2000 [1] ZLR 607 [S] and S v Nyirenda 2003 [2] ZLR 64 [H]....,.

It is also trite that rape victims react differently. Every case depends on its own facts. There is no rule of thumb.