Count
One was indecent assault, in contravention of section 67(1)(a)(i) of
the Criminal Law (Codification and Reform) Act [Chapter 9:23] [“the
Criminal Code”].
The
appellant was alleged to have indecently assaulted his own biological
daughter, Anesuishe Baloyi [“Anesu”]. She was seventeen [17]
years old at the time. The incident happened at the family's
village homestead in rural Mberengwa. ...
Count
One was indecent assault, in contravention of section 67(1)(a)(i) of
the Criminal Law (Codification and Reform) Act [Chapter 9:23] [“the
Criminal Code”].
The
appellant was alleged to have indecently assaulted his own biological
daughter, Anesuishe Baloyi [“Anesu”]. She was seventeen [17]
years old at the time. The incident happened at the family's
village homestead in rural Mberengwa. The appellant allegedly smeared
and applied some foul smelling and bitter tasting herbs onto her
breasts and privates. This allegedly followed advice from a
traditional healer, or n'anga, who had supplied the herbs. The
whole gory business was so that the appellant could amass untold
wealth....,.
The
appeal was against both conviction and sentence in Count One....,.
Certain
facts were agreed or were common cause. The offence in Count One
occurred on the evening of 29 November 2015. The one in Count Two
occurred on 6 January 2017. Both offences were reported to the police
either on 6 January 2017 or so soon thereafter. Thus, for Count One,
the report was being made fourteen months after the event.
Anesuishe
Baloyi was the single witness for the State in Count One. In a
nutshell, her evidence was this:
(i)
She was very close to her father. He sometimes confided certain
secrets in her. For example, he would, from time to time, entrust her
with his money without Susan
Sibanda's
knowledge.
(ii)
On the day in question, Susan
Sibanda had
been away from home attending some agricultural show elsewhere. In
the afternoon, the appellant informed Anesu that he would be coming
to her in the evening. In the evening, at around 21:00 hours or 22:00
hours, whilst she had already retired to bed, the appellant called
her to his bedroom. Everyone else had gone to asleep. Inside his
bedroom, the appellant urged her to sit on the bed. She was hesitant.
He lifted her up and sat her on the edge of the bed. He was wearing a
navy-blue short. Lighting inside the room was from a single candle.
(iii)
From underneath the bed, the appellant took out a black bag. It had
different kinds of herbs inside. They looked like stale potatoes. He
mixed them together to produce some fluids. He asked her if she was
menstruating. She said yes. He ordered her to stand up. She did. He
lifted up her blouse, leaving her breasts exposed. He applied the
herbs all over her body from top to bottom. Afterwards, he produced
some more herbs and ordered her to drink. They tasted sour. He then
gently instructed her to get into his bed and sleep. She hesitated.
She sat on the bed. He pushed her down into a lying position. He had
lowered his shorts leaving his genitals exposed. She freed herself,
bolted from the room, and went back to her bedroom.
(iv)
After about thirty minutes, the appellant followed her. He bade her
to keep her silence over the issue and never to tell Susan
Sibanda or
else he would rot in jail. He gave her $2= which he said she was to
clutch onto as she slept. He went back to his bedroom.
(v)
Anesu said she reported the matter only in January 2017 because after
she had gotten married, she was continuously thinking about the
appellant. Her marriage was collapsing. The incident was tormenting
her. She said she did not “enjoy” her husband.
The
appellant's cross-examination of Anesuishe
Baloyi
was meaningless. In fact, it bolstered the State's case.
When
she gave evidence in Count Two, Susan
Sibanda was
also asked to say what she knew of Count One. She gave several
anecdotes that corroborated some aspects of Anesu's evidence. She
said Anesu had married but that the marriage was facing turbulence.
Anesu's husband had implored them, his in-laws, to assist. Anesu
had come back home. They kept forcing her to go back. They also
consulted some prophets. Anesu eventually disclosed what the
appellant had done to her.
Anesu
had narrated to Susan the intrinsic details of the incident
concerning the appellant, namely:
(i)
That the appellant had asked her about her menstruation;
(ii)
That the appellant had lifted her blouse and applied herbs all over
her body;
(iii)
That the appellant had made her drink the remnants of the
concoctions;
(iv)
That the appellant had forced her to lie on the bed;
(v)
That the appellant had lowered his shorts and exposed his privates to
her;
(vi)
That she had fled from the room and gone back to her bedroom; and
(vii)
That the appellant had given her $2= to hold onto as she slept.
Susan
confirmed the appellant kept some herbal concoctions; the ingredients
of which included chameleon tails.
In
cross-examination, the appellant asked Susan not a single question in
respect of Count One….,.
In
respect of Count One; he confirmed a n'anga from Beitbridge town
had given him herbs to administer on his daughter so that he could
get rich quickly. The idea to visit the n'anga had been planted in
his head by friends. He admitted calling Anesu to his bedroom.
However, he denied he had himself administered the herbs on her body.
He said he had given them to her to do it by herself. He admitted
this ritual had to be done in the evening when nobody else was
watching. He denied the allegations by the prosecutor that he fondled
her breasts and private parts and that he intended to sleep with
her….,.
In
its judgment, the trial court accepted the evidence of Anesuishe
Baloyi in
its entirety.
On
the question of the delay in Count One, the court said Susan's
objective in divulging the incident after that long was not so that
the appellant could be arrested. It was so that she could be assisted
in her troubled marriage….,.
As
against conviction in Count One, the grounds of appeal were that the
trial court erred in failing to appreciate:
(i)
That Anesu had not made her complaint freely and voluntarily;
(ii)
That there had been an undue delay between the date of the offence
and the time the report was eventually made;
(iii)
That in making that report, Anesu had been influenced by Susan whose
design had been to fix the appellant for having married a second
wife;
(iv)
That the court should not have convicted on the evidence of a single
and unreliable witness….,.
It
is not true that the court convicted on the evidence of a single
witness, even though this would not have been a misdirection in
itself. Both Anesu and Susan gave evidence on Count One.
The
appellant argued broadly about the delay of fourteen months in Count
One. It was said Anesu's report was not made freely and voluntarily
or timeously. Inevitably, the cases of R v Petros
1967
RLR 35
and S v Banana
2000
[1] ZLR 607 [S],
and the general principles espoused in them, were quoted liberally.
Basically, these principles 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.
Plainly,
the appellant was mis-applying those principles.
In
a sense, Anesu's report was not made immediately or voluntarily.
But the circumstances under which it was made actually vindicate her
sincerity. But for the turbulence in her marriage, the result of the
trauma she was suffering, by reason of the appellant's macabre
conduct, she would not have reported the incident. As the court a quo
correctly noted, her disclosure was not so that the appellant could
be arrested. It was so that she could be assisted.
In
fact, 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]…,.
In
this case, there was not much in the form of a defence that the
appellant himself proffered. He admitted virtually everything else
surrounding the commission of the crime, except the intrinsic part
forming the essential ingredient of the offence, namely, his smearing
of the herbs on Anesu's breasts and private parts. He said he
merely gave Anesu the herbs to apply them on her body herself - but
this was at night; with just himself and the vulnerable girl present;
in the privacy of his own bedroom; when everyone else had gone to
asleep; on a day Susan was sleeping out, and for the furtherance of
some occult ritual prescribed by some dubious practitioner of the
nether world.
Anesu's
evidence was quite graphic. It left nothing to imagination.
Evidently, the appellant's singular intention was to rape her. The
charade about smearing herbs on her body and asking her to drink some
of them was evidently to numb her psyche and make it easy for him.
Defence
counsel said, on the authority of R v Difford
1937
AD 370,
no onus rests on an accused person to convince the court of the truth
of any explanation given by him.
That
is too sweeping.
Not
when the State has led such damning and incriminating evidence as to
allow no other inference to be drawn except that of guilty as
charged. The evidential onus shifts to the accused. For him to fool
around with a fanciful; whimsical; far-fetched, and inherently
implausible explanation is to play Russian roulette….,.
1.
The appeal against conviction in Count One is hereby dismissed.
