The complainant did not lodge a voluntary complaint immediately or within a reasonable time to anyone...,. Despite close questioning by her mother and nurses she consistently refused to disclose her paramour...,. Her mother threatened not to take her to the hospital for treatment. It was only after such threats that the child succumbed and alleged that it was the accused who had raped her in 2009...,. The accused left her father's employment in January 2010 yet the complainant was not prepared to voluntarily disclose the identity of her molester five months after the accused had left employment....,. The accused denied the charge.

The courts have sounded a warning, time without number, that sexual offences ought to be treated with special care and due diligence in order to avert the danger of convicting an innocent person. The inherent danger of convicting an innocent person in cases of this nature in the past prompted the courts to adopt the now discredited cautionary rule of practice which went rather too far in trying to give undue protection to the accused person. Despite the disuse and abandonment of the archaic cautionary rule there is, however, still need to handle sexual offences with extreme care and due diligence.

This prompted me to remark, in the case of..., that: The proper modern approach in handling cases of a sexual nature was laid down in the well-known case of..., where the Supreme Court, the highest court in the land had occasion to remark that:-

"..., the cautionary rule in sexual cases is based on an irrational and outdated perception, and has outlived its usefulness. It is no longer warranted to rely on the cautionary rule of practice in sexual cases. Despite the abandonment of the cautionary rule, however, the courts must still carefully consider the nature and circumstances of alleged sexual offences."

Thus, on the basis of the ratio laid down in the..., case, the abandonment of the cautionary rule did not mean a wholesale relaxation of the court's ordinary standard of proof beyond reasonable doubt which is meant as a safeguard against condemning the innocent together with the guilty in the difficult course of the due administration of justice. On the contrary, the courts must exercise special care and diligence when presiding over sexual cases for the reasons given in the case of..., where WATERMEYER J had this to say:

The appellant does not deny having sexual intercourse with the complainant. He, however, claims it was consensual...,. To the contrary the complainant's evidence was that she knew the appellant as a prophet or healer who used to assist her in respect of an ailment that she suffered from...,. Her sister, with whom she resided and who worked at the same premises as the appellant, referred her to the appellant for help. The complainant was thus emphatic that the intercourse was not consensual. The complainant also explained that she became afraid after the appellant threatened her with aggravation of her illness or death...,. She thus kept quiet and made no report about the rape...,.  It is common cause that he gave himself out to be a person endowed with healing powers.

Regarding the first ground, whether the explanation given by an accused person can reasonably possibly be true is a function of the subjective approach rendered to both witnesses for the State and for the defence in the light of all the relevant facts before the trial court.

Believing the testimony of the one witness over that of the other depends on several factors including the nature of the evidence being and led the availability of corroboration on material aspects of the essential elements making up the crime charged. The advantage enjoyed by triers of fact in this regard put them at a better position to determine whether a witness before them is worthy of belief taking into account the probabilities of the matter. Accepting the abandonment of the cautionary rule, the court must still carefully consider the nature and circumstances of an alleged sexual offence. See S v Banana 2000 (1) ZLR 607 (S).

In his first ground of appeal, the appellant alleges that the trial magistrate did not give due consideration to the fact that whereas the offence is alleged to have occurred in September 2007, it was reported at far much later date in October. Furthermore, no reasonable explanation was given to indicate what really prompted the complainant to make a report to her aunt and mother.

According to the appellant, when the complainant told him that she was changing her clothes, and he had seen that she was not fully dressed, he backed off and went away.

It is common cause that the incident took place on 15 September 2007. The State's evidence from the complainant, Fungayi, to whom the complainant first made her report, and the complainant's grandmother, establishes that the complainant made a report to Fungayi the next day.

The magistrate believed the complainant and the State's witness. The appellant confirmed that by admitting that he was questioned by his wife about the rape the following day.

Counsel for the appellant submitted that the complainant reported the rape to her aunt, and mother, in October 2007, when the incident on which the rape charge arose had occurred in September 2007. Counsel for the respondent argued that the report was made the following day, as per the evidence of the complainant.

It is true that the complainant said she was raped on Friday afternoon, and she made her first report to Fungayi on Saturday, which was the following day. This is confirmed by the appellant's own evidence...,.

There is, therefore, no merit in the appellant's first ground of appeal. It is based on the appellant's counsel's failure to correctly read the evidence led at the appellant's trial...,.

The appellant's counsel also missed the point when he said that the report to the complainant's aunt, and mother, was made in 2008 after which the complainant's mother, and father, confronted the appellant at Masomera. The complainant's mother then made the report to the police...,.

The appellant's second ground of appeal alleges that the trial magistrate did not give adequate consideration to the fact that despite the fact that the complainant made a report to her aunt, and mother, in October 2007, the matter was reported to the police on 2 July 2008, that is some eight months later...,.

The second ground of appeal is also a result of the appellant's counsel's failure to appreciate the evidence led.

The evidence led is to the effect that the complainant reported to Fungayi the next day, who, on the same day, reported the case to the complainant's grandmother. The complainant's grandmother, and Fungayi, did not take the matter any further.

The applicant then went to stay with her mother where she exhibited signs of distress. She moved on to her father's house. Her father noticed that she had something troubling her, and encouraged her to open up. She asked to be allowed to go and stay with her father's young brother.

She eventually made her second report to her uncle's wife.

Her father was then informed, and he, in turn, informed his former wife, the complainant's mother. They, together, went to the appellant's home and confronted the appellant, who had previously been confronted by his wife about the same issue.

The complainant's mother then reported the case to the police on 2 July 2008.

In his third ground of appeal, the appellant alleges that the trial magistrate failed to give due consideration to the fact that, initially, the complainant alleged that the appellant had attempted to rape her but later changed her story and alleged that the appellant had actually raped her.

Counsel for the appellant submitted that that shows inconsistency on her part.

Counsel for the respondent submitted that the correct sequence of the evidence led was that the complainant reported to Fungayi that the appellant had raped her. Fungayi called her mother-in-law, who is the complainant's grandmother and the appellant's wife. It is to her grandmother that the complainant changed her story and said the appellant had attempted to rape her. He argued that the complainant said she was afraid of her grandmother. The fact is corroborated by the complainant's grandmother...,.

The correct sequence of the evidence on record is the complainant reported to Fungayi that the appellant had raped her. Alarmed by the nature of the complainant's report, Fungayi went and called her mother-in-law, the complainant's grandmother, to come and hear the complainant's report. When Fungayi asked the complainant to repeat her report to her grandmother, the complainant then said the appellant had attempted to rape her. The complainant's grandmother demanded the truth from her. The complainant did not tell anything further. She left her with Fungayi for two days, hoping she would open up to Fungayi, with whom she was more comfortable with than herself.

It must be noted that in her evidence, the complainant confirms the sequence of events and details of the evidence given by her grandmother and Fungayi, but adds that she told her grandmother that the appellant attempted to rape her as she was afraid of her. Her fear of her grandmother is confirmed by her grandmother's confession that she was more comfortable with Fungayi than herself.

It is also apparent from the complainant's grandmother's evidence that she was not gentle with the complainant.

She said she demanded the truth from the complainant. The use of the word demand, by the complainant's grandmother, suggests firm and harsh questioning, which must have further intimidated the complainant who had, according to her evidence, been threatened with death if she revealed what had happened between her and the appellant. She was immediately taken to the appellant where the appellant was given an opportunity to question her about what she had revealed to Fungayi. This, in my view, further intimidated the complainant into silence, even over the two days she was left with Fungayi.

In this appeal, it is important to note that the evidence of the complainant, and the appellant, converges on the following:

1. That the complainant came from school on the afternoon of Friday 15 Septemebr, 2007;

2. She found the appellant seated in the kitchen smoking;

3. She greeted him, and proceeded to the bedroom to change her clothes;

4. The appellant followed her to the bedroom where he opened the door and found her half-naked;

5. The complainant said to him: “Grandfather, I am still changing.”

6. That he entered the entered the bedroom when the complainant was changing, and was half-naked;

7. That the appellant was confronted about the rape by his wife the following day; and

8. That in July 2008, when she was taken to the appellant's home to confront him, the complainant persisted with the allegation that the appellant had raped her.

This makes the complainant's evidence convincing.

She is obviously not talking about imaginary things. Her story was corroborated on minute details by the appellant's own evidence.

Only the sexual act was disputed by the appellant, yet the appellant clearly attempted to mislead the court when he..., said he arrived from where he was coming from, and entered the bedroom where the complainant was changing her clothes. He later agreed with the complainant's sequence of events; that she arrived from school and found him smoking in the kitchen. She greeted him, and then went to change her clothes.

The appellant must have agonised over how he could reasonably have followed the complainant to the bedroom when he knew she had gone there to change her clothes. To avoid that difficulty, he, in his defence outline, proffered an innocent explanation by saying that he was arriving from where he had gone when he entered the bedroom where he saw the complainant half-naked. He must have realized that if he said he followed her to the bedroom, conscious of the fact that she had gone there to change her clothes that would raise the question: why follow her into the bedroom at that time? That question now arises and tilts the scales of justice against him.

His defence crumbled under cross-examination when he conceded that the complainant found him in the kitchen, and that he followed her to the bedroom.

It is, therefore, clear, that the complainant is a more credible witness than the applicant, who attempted to mislead the court on an essential portion of the events which took place on the day in question.

Our courts have, since the case of S v Banana, 2000 (1) ZLR 607 (SC), moved away from the cautionary rule, which required the court to start assessing the complainant's evidence, in sexual cases, from a suspicious angle.

In that case, GUBBAY CJ..., said –

“Recently, in S v K, 2000 (4) BCLR 405 (NMS), the Supreme Court of Namibia followed the decision in S v Jackson supra. It held that the cautionary rule had outlived its usefulness. There were no convincing reasons for its continued application. It exemplified a rule of practice that placed an additional burden on victims in sexual cases which could lead to grave injustice to the victims involved (See at 418H-419D)

It is my opinion that the time has now come for our courts to move away from the application of the two-pronged test in sexual cases, and proceed, in conformity, with the approach advocated in South Africa. In so holding, I have not overlooked the well-researched judgment of GILLESPIE J in S v Magaya, 1997 (2) ZLR 138 (H). But, having regard to the abrogation of the obligatory nature of the rule in such countries as Canada, the United Kingdom, New Zealand, and Australia, as well as by the State of California (See Chaskalson, et al, Constitutional Law of South Africa at 14-62; Hatchard, 1993 Journal of African Law 97 at 98; (1983) 4 Canadian Journal of Family Law 173), I respectfully endorse the view that, in sexual cases, the cautionary rule of practice is not warranted. Yet I would emphasize that this does not mean the nature, and circumstances, of the alleged sexual offence, need not be considered carefully.”

It must be mentioned that the appellant, through his legal representative, appears to be insensitive to the boys ordeal, when he stated that he was a young man of twenty-one years “while the complainants' are small boys of nine and ten years, not babies. The trauma on the victims is a matter of conjecture.”

Counsel for the respondent also made the startling submission that the testimony of the first two State witnesses needed to be corroborated as they had an interest in the matter.

One would assume that all complainants have an interest in the matters where they testify otherwise they would not be complainants or witnesses in the first place. To then suggest that the testimony of each complainant must be corroborated is not only without precedent but goes against the clear provision at law that the testimony of any one witness shall be sufficient to ground a conviction.

The law requires the court to apply the cautionary rule in examining the evidence of young children.  However, in doing so, the court is entitled to take into account the absence of evidence suggesting the child is lying; see HOFFMANN and ZEFFERTT, The South African Law of Evidence, 4^th Edition 1992, Butterworths…., where the learned author said -

“The danger of acting upon such evidence (of young children) must be borne in mind by the trier of fact.  It makes no difference whether the child's evidence has been sworn or unsworn. The court is entitled to take into account the falsity or absence of evidence by the accused or any other features which show that the child's evidence is unquestionably true and the defence story false.”

See also S v Banana 2001 (1) ZLR 607 (S).

The appellant's biggest problem is that he is the first person to have been pointed by the complainant as the culprit when she had just been raped and this report was made to the very person, the mother, to whom the report was expected to be made.

He has not shown why the young girl would have falsely accused him.

The trial magistrate went to great lengths in evaluating that issue going through the evidence of the appellant and his three witnesses - none of whom could shed light as to why the complainant could falsely accuse the appellant. It was also accepted that Regina Sibanda did not even know the appellant. 

This is a case in which the State led evidence from a single witness, the complainant, with absolutely no other supporting evidence or corroboration - not even a medical report to support the alleged assault…,.

It is surprising that the trial magistrate accepted all the  uncorroborated evidence of the complainant hook, line and sinker to the extent of making findings that all that she was saying in court was “common cause”- even when all of it was being challenged by the appellant. While the trial court is entitled to convict on the single evidence of the complainant, for that to happen the evidence must be clear and satisfactory in every material respect. To the extent that the complainant had an interest to serve, it being common cause that the parties were fighting over occupation of the matrimonial house, the learned trial magistrate was required to approach her evidence with extreme caution and should have sought corroboration of her evidence. See S v Zimbowera 1992 (1) ZLR 41 (S)….,; S v Shoniwa 1990 (1) ZLR 311 (S); and R v Ellis 1961 R & N 468 (FS).

The evidence of the complainant was far from being clear and was certainly not satisfactory. It was generally incoherent, and, in answer to simple questions, she went on a tirade of irrelevant and extremely unhelpful stories like the claim that the appellant goes on expensive holidays alone, does not allow her to have access to vehicles and that he has not hired a messenger for her.

Counsel for the appellant argued that not only was the complainant vindictive but she also had a motive to benefit herself, and, as such, her evidence should be treated with caution.

I am inclined to agree with counsel for the appellant because one can assign no other reason for the complainant's failure to seek medical treatment if she had injuries and to press charges of assault some seven (7) months after the alleged offence was committed. It is not clear why everybody, including senior doctors like Dr Omara, nurses and employees would turn against her, insult her at every turn and some assault her as she claims. There is substance in counsel for the appellant's submission that the complainant exhibited some instability in her character. Indeed, she may have been suffering from a persecution complex.

In addition…, the complainant did not immediately report the assault, if she did, nothing was done to prosecute the appellant for seven (7) months. No cogent explanation for the delay was given with the complainant telling the trial court that she initially forgave the appellant and did not press charges but changed her mind when, months later, the appellant assaulted her again assisted by an employee, Kuda. It is improbable that the appellant would have been assaulted on this occasion thereby forcing her to resuscitate an old case instead of reporting the then current assault. It is in that light that all the liberal allegations of assault and abuse made by the complainant must be viewed. The entire evidence of the complainant appears suspicious and unreliable. She passes out as someone given to flights of the imagination which comes out clearly when she claims that the appellant assaulted her with the assistance of the maid when, at the same time, she claims that there was no maid and that she was always alone.

The learned trial magistrate misdirected herself in accepting her uncorroborated evidence as gospel truth and holding that her claims of alleged previous assaults were similar fact evidence pointing to the guilt of the appellant. Counsel for the State conceded, and, in my view, rightly so, that in light of these misdirections, the conviction could not be sustained.

This is a criminal appeal against both the conviction and sentence of the appellant by the Regional Magistrates Court sitting at Bulawayo on 18 July 2006.

The appellant was convicted of one count of rape…..,.

Aggrieved by that conviction and sentence, the appellant noted an appeal against both arguing that there was absolutely no evidence led on behalf of the State upon which a conviction could be founded.

The State has conceded that both the conviction and sentence cannot be sustained. Counsel for the State submitted, in making the concession, that:

“The State called three witnesses, viz, Wilson John Makalima, Onmie Makalima and Nozipho Baloyi. The first two witnesses were recalcitrant witnesses. Nothing emerged from their testimony that implicated the appellant in the commission of the offence. The victim, who was aged 5 years at the time of her testimony, did not say anything that incriminated the accused. The Respondent concedes that at the time close of the State case no prima facie case had been established.”

Having gone through the record of proceedings and the submissions made by counsel for both parties we are of the view that the concession has been properly made. There was no basis whatsoever for the conviction of the appellant and no justification for the departure by the learned Regional Magistrate from the usual sentencing options in respect of juveniles.

Some doubt has also been raised about the complainant's testimony that Nhlanhla cut her with a knife in her private parts.

Whilst the lower court was entitled to convict the appellant on the single evidence of the complainant, this was a proper case for it to approach her evidence with caution and look for corroboration. In S v Hove 1992 (1) ZLR 70 (S) the following was said at 72D – E -

“The court a quo was entitled to convict the appellant on the single evidence of the complainant: S v Zimbowora 1992 (1) ZLR 41 (S) and the cases cited therein. But here, the complainant was a witness with an interest to serve and therefore there was need to approach her evidence with caution and to produce corroborative evidence, if available: S v Zimbowora supra. The failure by the prosecutor to lead evidence of a corroborative nature seriously weakened his case and does not inspire confidence leading to the acceptance of the evidence of the complainant; a single witness.”

Lillian Murevanhema, the complainant's sister said that the complainant came home from school and was crying. She asked the complainant why she was crying but the complainant did not answer. Later, Nelisa, her sister, called the witness. She went to where the complainant was and saw that the complainant's panty was blood stained. This was at about 9:00PM. She called her mother to come and see as well. She later heard from her mother that the complainant had said that she was raped by the appellant.

Nelisa Mpamhanga is also a sister to the complainant. She said that she saw the complainant lying on the floor and saw that her panty was blood stained. She asked the complainant why her panty was blood stained and the complainant did not answer. She then called her mother.

Epiphania Makumbi, the complainant's mother said that she was not at home the whole day and when she came back home around 9.00pm the complainant's sister called her to come and see the complainant's panty. She removed the complainant's panty and saw that it was blood-stained. She checked the complainant's genitals and saw that her vagina was swollen. She asked the complainant what had happened. After initially being afraid to tell her, the complainant later opened up and said that the appellant had called her when she was on her way home from school and asked her about Selina their former maid. She told her that the appellant then took her to the toilet and raped her and that he threatened to cut her with a knife if she divulged what had happened. He also said that he would ask Nelisa, her sister, to check if she had divulged the matter. The witness also said that her house and the appellant's are adjacent to each other and are only separated by a precast wall commonly referred to as a durawall….,.

In convicting the appellant, the learned Regional Magistrate stated, inter alia, in her judgment, that the appellant and the complainant know each other well as they are neighbours. She warned herself of the need to carefully analyze the young complainant's evidence with due care and caution to guard against being misled by the inherent dangers in testimonies of children. She found that the complainant, though a child, gave a clear testimony and gave her evidence well. She believed her. She disbelieved the appellant and his witnesses and gave clear reasons for the decision….,.

The appellant's counsel has, in his heads of argument, and in oral submissions before the court, attacked the trial magistrate's reliance on the complainant's evidence on the basis that being a six (6) year old child the complainant fitted into the category of witnesses who are known to be given to flights of fantasy and who may come up with a wholly fabricated case for reasons that are stranger than fiction as they do not appreciate the gravity of the allegations they casually make. He submitted that the trial court was enjoined to show a conscious advertence to the risk of false incrimination inherent in the testimony of this witness and then, through a clear-cut process of reasoning, show how any such risk was eliminated in the circumstances of the case before it. He submitted that, in casu, the trial court did not show a real awareness of the possibility of false incrimination and that this is a case in which the complainant could have misbehaved elsewhere. That in a desperate bid to cover her tracks, given the way the report was made, she then concealed her actual assailant for her own reasons and sacrificed the appellant.

In Edmore Musasa v The State SC45-02…., ZIYAMBI JA said -

“As for the submission that children of tender age tend to fantasize, without professing to be an expert on the subject, it seems fair comment to say that a four-year-old girl is hardly likely to fantasize about a rape or sexual abuse. I am fortified in this by the expert opinion quoted by the learned judge (HLATSHWAYO J) at p8 of the cyclostyled judgment (Edmore Musasa v The State HH52-02):

“There is certainly no psychological research or medical case study material which suggests that children are in the habit of fantasizing about the sort of incidents that might result in court proceedings; for example, observing road accidents or being indecently assaulted. Children's fantasies and play are characterised by their daily experience and personal knowledge, and unusual fantasies are seen by psychiatrists as highly suspicious: 'The cognitive and imaginative capacities of three-year-olds do not enable them to describe anal intercourse and spitting out ejaculation for instance. Such detailed descriptions from small children, in the absence of other factors should be seen as stemming from the reality of the past abuse than from the imagination.'  VIZARD E., BENTOVIM A. and TRANTER M. (1987) Interviewing sexually abused children.”

In casu, the evidence on record shows that the complainant arrived home from school crying. It also shows that her panty was bloodstained. On being questioned about it she said that the appellant had raped her and this was confirmed by the medical report which recorded that her external genitalia had tears and bruises, there was vaginal bleeding, the hymen was torn at 10.00 o'clock and at 2.00 o'clock. The report also records that penetration was effected.

The complainant was not lying, therefore, when she said that she had been raped.

The learned trial magistrate stated the following:

“Complainant testified very well and I did not find any reason why she would have lied. In the case of Musasa HH52-02 HLATSHWAYO J stated that; “young children do not fantasize about being raped or other unusual horrific experiences.” Indeed, I do not believe that complainant could have imagined and/or fantasized the rape. She sounded original and her evidence clearly rang bells of truths in it. (sic). Her mother corroborated her evidence. I am satisfied that evidence of complainant is indeed reliable and the highlighted dangers inherent in such testimony have been eliminated.”

A perusal of the complainant's evidence reveals details that could not possibly be as a result of a flight of fantasy on her part. She clearly stated that the appellant called her as she was coming from school. He sexually abused her in the toilet, the details of which abuse she stated to the court, the appellant threatened to cut her with a knife if she reported what he had done. She must have been relating details of what she had experienced. At six (6) years of age, she could not have fantasized about being raped. At her age, the suggestion by the appellant's counsel that she may have misbehaved elsewhere and then for no reason, or for reasons best known to her, she decided to shield whoever had abused her and chose to sacrifice the appellant instead must be dismissed with the contempt that it deserves.

On the evidence on record, the court a quo was justified in convicting the appellant of the offence of rape.

I now turn to consider the original grounds of appeal.

These grounds boil down to taking issue with the treatment of the single witness evidence and whether the court a quo unduly accepted the evidence of a child without requiring further safeguards for such acceptance.

Counsel for the appellant did not dwell too much on these grounds in his oral submissions before us having expended his energies on the novel ground which I have disposed of above. He, however, emphasized that the conviction is not safe for the reason that the complainant had not confided the abuse to the nearest person she was reasonably expected to. Otherwise he abided by his extensive heads of argument which he prepared and filed on the appellant's behalf.

It is permissible for a court to convict, in a sexual case, even if there is no corroboration of the complainant - but only where the merits of the complainant and the demerits of the accused are without question. On the other hand, corroboration will not secure a conviction unless the court is, in any event, satisfied that the complainant is credible. In the case of young children, the degree of corroboration or other factors required to reduce the danger of relying on the child's evidence will vary with the age of the child and other circumstances of the case. The court must, in all cases, be satisfied that the danger of false incrimination has been removed before it may convict. (See S v Madzomba 1999 (2) ZLR 214 (HC)).

The present complainant viewed the appellant with respect, firstly, by virtue of the trust reposed in him by her own parents, and, secondly, by virtue of his position in society. As a result of threats offered to her soon after each incident of abuse she had not reported the abuse to anyone. There is nothing abnormal in such conduct by a child of ten years. The court a quo correctly, in my view, properly assessed the difficulties put in her way by the abuse at the time. It would have been better, of course, had she reported the abuse earlier, as evidence would have been gathered whilst still fresh, and the attendant recall processes would have worked more efficiently. This, however, does not detract from the fact that she was able to recall the incidents during which she suffered abuse at the hands of the appellant. There is no suggestion that she could have mistaken the appellant for someone else. Nor was any factual basis laid for the allegation that her father was a suspect.

There is no rule of thumb, test, or formula, to apply when it comes to a consideration of the credibility of the single witness (see the remarks of RUMPFF JA in S v Webber 1971 (3) SA 754 (A)…,. The trial judge will weigh his evidence, will consider its merits and demerits, and, having done so, will decide whether it is trustworthy and whether, despite the fact that there are shortcomings or defects or contradictions in the testimony, he is satisfied that the truth has been told. The cautionary rule referred to by DE VILLIERS JP in 1932 may be a guide to a right decision but it does not mean "that the appeal must succeed if any criticism, however slender, of the witnesses' evidence were well-founded."

It has been said more than once that the exercise of caution must not be allowed to displace the exercise of common sense.

In recent times, it has been held that the cautionary rule relating to witnesses in matters with a sexual connotation must be dispensed with. (S v M 1999 (2) SACR 548 (SCA)).

In S v M 1999 (2) SACR 548 (SCA) the court said the following -

“Prior to the decision in S v Jackson 1998 (1) SACR 470 (SCA), it had long been accepted that criminal cases of a sexual nature fell into a special category. It was said that there was an 'inherent danger' in relying upon the unconfirmed testimony of a complainant in a sexual case. This resulted in the courts adopting a cautionary rule of practice. The rule required -

(a) The recognition of the 'inherent danger'; and

(b) The existence of some safeguard that reduced the risk of a wrong conviction, such as corroboration of the complainant in a respect implicating the accused, or the accused's failure to give evidence or his obvious untruthfulness.”

(See S v Snyman 1968 (2) SA 582 (A)….,.)

In S v Jackson 1998 (1) SACR 470 (SCA) it was pointed out that the application of the cautionary rule to sexual assault cases was based on irrational and outdated perceptions. Although the evidence in a particular case might call for a cautionary approach, this, it was emphasized in the judgment, was not a general rule: the State was simply obliged to prove the accused's guilt beyond reasonable doubt. The factors which motivated this court to dispense with the cautionary rule in sexual assault cases apply, in my view, with equal force to all cases in which an act of a sexual nature is an element.

In S v Banana 2000 (1) ZLR 607(SC) following the lead set in S v Jackson 1998 (1) SACR 470 (SCA) the court held that the cautionary rule in sexual cases is based on an irrational and outdated perception and has outlived its usefulness. It is no longer warranted to rely on the cautionary rule of practice in sexual cases. Despite the abandonment of the cautionary rule, however, the courts must still consider carefully the nature and circumstances of alleged sexual offences.

See also S v K 2000 (4) BCLR (NmS).

It is trite law that the evidence of a single witness must be approached with caution and its merits weighed against any factors that militate against its credibility. A common sense approach must be adopted. Where the evidence of a single witness is corroborated in any way that tends to indicate that the whole story was not concocted, the caution may be overcome, as it may be by any other feature that increases the confidence of the court in the reliability of the single witness. Corroboration is not, however, essential.

The classic statement on the principle of corroboration comes from a civil case:

"Corroboration may be by facts and circumstances proved by other evidence than that of a single witness who is to be corroborated. There is sufficient corroboration if the facts and circumstances proved are not only consistent with the evidence of the single witness, but more consistent with it than with any competing account of the events spoken to by him. Accordingly, if the facts and circumstances proved by other witnesses fit in to his narrative so as to make it the most probable account of the events, the requirements of legal proof are satisfied." O'Hara v Central SMT Co 1941 SC 363, LP (Normand)…,.

The requirement for corroboration was re-stated more recently in Fox v HM Advocate 1998 JC 94, LJG (Rodger)…, in the following, rather different, terms -

"Corroborative evidence is…, evidence which supports or confirms the direct evidence of a witness…, the starting point is that the jury have accepted the evidence of the direct witness as credible and reliable. The law requires that, even when they have reached that stage, they must still find confirmation of the direct evidence from other independent direct or circumstantial evidence…, the evidence is properly described as being corroborative because of its relation to the direct evidence: it is corroborative because it confirms or supports the direct evidence. The starting point is the direct evidence. So long as the circumstantial evidence is independent and confirms or supports the direct evidence on the crucial facts, it provides corroboration and the requirements of legal proof are met."

Evidence can be corroborative even if, taken on its own, it does not point conclusively towards a suspect's guilt. So, in a case where identification is in issue, a positive identification by one witness may be corroborated by a resemblance identification by another. Corroboration is about the number of witnesses available to prove facts. It is not about number of facts available to prove guilt. Thus, a single circumstance, such as the finding of a fingerprint in a particular place, may be sufficient to prove identity (a crucial fact) provided that the finding of the print, and it being from the accused's finger, are each spoken to by more than one witness. Alternatively, two separate circumstances, each spoken to by separate witnesses, may be sufficient if both point towards guilt….,.

These observations, in my view, apply to the present with equal force.

The court a quo had the opportunity to evaluate the issues of credibility with the able assistance of counsel during trial. The complainant was subjected to thorough cross-examination. The trial court was satisfied that despite certain unsatisfactory features of her evidence which did not go to the gravamen of her evidence, the complainant was worthy of belief. Such a finding ought not to be lightly overturned unless there are compelling reasons on the record justifying it. I am unable to say that such compelling reasons exist in this case. The magistrate carefully considered the totality of the evidence against the appellant before rejecting appellant's protestations of innocence as false.

I find no fault in his reasoning.

In the result therefore I make the following order:

The applicable law in matters of this nature was enunciated resolutely in S v Banana 2000 (1) ZLR 607 (S) where…, GUBBAY CJ stated -

“There is a well established rule in Roman-Dutch jurisdictions that judicial officers are required to warn themselves of the danger of convicting on the uncorroborated evidence of certain categories of witnesses who are potentially suspect. One such category concerns complainants in sexual cases.”

He then stated at 614 E-G:

“It is my opinion that the time has now come for our courts to move away from the application of the two-pronged test in sexual cases and proceed in conformity with the approach advocated in South Africa…,. I respectfully endorse the view that in sexual cases the cautionary rule of practice is not warranted. Yet I would emphasise that this does not mean that the nature and circumstances of the alleged sexual offence need not be considered carefully.”

and at 614 H to 615 A

“It is, of course, permissible in terms of s269 of the Criminal Procedure and Evidence Act (Cap 9:07) for a court to convict a person on the single evidence of a competent and credible witness. The test formulated by DE VILLIERS JP in R v Mokoena 1932 OPD 79 at 80 was that the evidence of a single witness must be found to be “clear and satisfactory” in every material respect.”

At 615 E-H he stated:

“In Zimbabwe, much the same approach has been adopted. In S v Nyathi 1977 (2) RLR 315 (A) at 318 E-G, LEWIS JP warned that the test in R v Mokoena supra is not to be regarded as an inflexible rule of thumb. There is no magic formula which determines when a conviction is warranted upon the testimony of a single witness. His evidence must be approached with caution and the merits thereof weighed against any factors which militate against its credibility. In essence, a common sense approach must be applied. If the court is convinced, beyond reasonable doubt, that the sole witness has spoken the truth, it must convict, notwithstanding that he was, in some respects, unsatisfactory.

See also S v Nathoo Supermarket (Pvt) Ltd 1987 (Z) ZLR 136 (S) at 138 D-F.

Where the evidence of the single witness is corroborated in any way which tends to indicate that the whole story was not concocted, the caution enjoined may be overcome and acceptance facilitated. But corroboration is not essential. Any other feature which increases the confidence of the court in the reliability of the single witness may also overcome the caution.”

It was also held in S v Banana 2000 (1) ZLR 607 (S) that the cautionary rule in sexual cases is based on an irrational and outdated perception and has outlived its usefulness.

In our view, the issue for determination is whether the trial court was correct in convicting the appellant on the evidence of a single witness.

In S v Banana 2000 (1) ZLR 607 (SC) GUBBAY CJ had this to say regarding single witness evidence -

“It is, of course, permissible in terms of s269 of the Criminal Procedure and Evidence Act [Chapter 9:07] for a court to convict a person on the single evidence of a competent and credible witness. The test formulated by DE VILLIERS JP in R v Mokoena 1932 A OPD 79 at 80 was that the evidence of such a single witness must be found to be "clear and satisfactory in every material respect."

In The South African Law of Evidence 4ed at 573 the celebrated authors, HOFFMANN and ZEFFERTT, rightly point out that Mokoena's case concerned the situation of a single witness claiming to have identified the accused by the light of a pocket torch as he ran past in the dark. Accordingly, they contend that the remarks of DE VILLIERS JP should be related to the context in which they were made.

Certainly, in purporting to lay down a general rule the dictum of the learned Judge President has been criticised as unhelpful and tending to obscure the ultimate purpose of the court's inquiry, which is whether the guilt of the C accused has been proved beyond a reasonable doubt. See R v Abdoorham 1954 (3) SA 163 (N) at 165; R v Mokoena 1956 (3) SA 81 (A) at 85. In S v Sauls & Ors 1981 (3) SA 172 (A) at 180E -G, DIEMONT JA said:

"There is no rule of thumb or formula to apply when it comes to a consideration of the credibility of the single witness. The trial judge will weigh his evidence, will consider its merits and demerits and, having done so, will decide whether it is trustworthy and whether, despite the fact that there are shortcomings or defects or contradictions in the testimony, he is satisfied that the truth has been told…,. It has been said more than once that the exercise of caution must not be allowed to displace the exercise of common sense."

In Zimbabwe, much the same approach has been adopted. In S v Nyati 1977 (2) RLR 315 (A) at 318E-G, LEWIS JP warned that the test in R v Mokoena supra is not to be regarded as an inflexible rule of thumb. There is no magic formula which determines when a conviction is warranted upon the testimony of a single witness. His evidence must be approached with caution and the merits thereof weighed against any factors which militate against its credibility. In essence, a commonsense approach must be applied. If the court is convinced beyond a reasonable doubt that the sole witness has spoken the truth, it must convict, notwithstanding that he was, in some respects, unsatisfactory. See also S v Nathoo Supermarket (Pvt) Ltd 1987 (2) ZLR 136 (S) at 138D-F.

Where the evidence of the single witness is corroborated in any way which tends to indicate that the whole story was not concocted, the caution enjoined may be overcome and acceptance facilitated. But corroboration is not essential. Any other feature which increases the confidence of the court in the reliability of the single witness may also overcome the caution.”

The trial court acknowledged that the complainant's story was difficult to tell. By this is meant that she was reticent. This is understandable taking into account her age. In addition, her former teacher described her as quiet. The trial prosecutor appeared not to have been patient enough or skill in leading her evidence in chief in order to lead all the relevant evidence. This is particularly the case in relation to the sequence of events and the commission of the second count.

What might also have compounded the situation was the fact that Victim Friendly facilities were not used for this trial.

There appears to be sufficient corroborative evidence of the complainant notwithstanding that her mother and aunt denied that she reported the rape to them. The complainant's former teacher confirmed receiving a report from her. She, in turn, reported the matter to police. The medical examination conducted by Doctor Choto confirmed that the complainant was raped. There is nothing to suggest that the doctor was incompetent or made incorrect findings. The criticism levelled against his notation that the rape occurred between eight and thirty days before the examination cannot be sustained. His explanation was that he got this information from the complainant's guardian. He further explained that the injuries to the complainant were neither fresh nor healed. In addition, there is nothing to suggest that the complainant had any ill-motive to incriminate the appellant. Her report, though made late, was voluntary. Her explanation for the delay is plausible. Apart from the appellant's claim, there was no other evidence to confirm that there was never a time he was alone with the complainant….,.

In the result, it is ordered as follows -

The deceased was a small boy aged ten (10) years at the time he met his death. His name was Honest Moyo. The appellant is a woman offender aged 32 at the time she allegedly committed the crime. The deceased was attending school at a school known as Mvundlana Primary School in Tsholotsho.

On 8 May 2009, at about 1100 hours, the deceased, who was coming from school on his way home, broke into the kitchen of the appellant but did not steal anything from there. He was, however, seen by the appellant leaving the kitchen. On realizing that he had been discovered, the deceased ran away in the direction of his parent's home. The appellant gave chase until they got to where the road passes near Manzimahle Dam where Pauline Ndlovu and her ten (10) year child called Thubelihle Ndlovu was washing her clothes.

Pauline Ndlovu, who was the sole State witness, told the court that the appellant was her neighbour.  She knew the deceased as a local child who used to pass near her home to and from school. She knew his parents. The father worked at Manda Secondary School.

As she was washing her clothes at the dam on the fateful day she saw the boy running with the appellant in hot pursuit. The appellant called at her to catch the boy but Pauline Ndlovu was not prepared to do that. She replied that she was busy with her washing. Instead, she advised the appellant to give up the chase. She suggested that if the boy had done anything wrong the appellant should report him to his father. If she wanted to be compensated for whatever wrong the boy had done she should talk to the father about it. The appellant knew the father. Her response to such sound piece of advice was that the boy had broken into her kitchen. She said she would not give up the chase before catching the boy and venting her anger, as she went past in hot pursuit. The terrified boy ran into the dam. She still followed him into the water. The witness said she left the point where she had been washing clothes and walked for 10 metres. She called out to the boy to come out of the water when the water was at waist level. The boy heard the witness calling and turned to go back but came face to face with the appellant. He then said “Sister I am sorry, I apologise.” The appellant was angry and would have nothing of that. She picked up two stones the size of a half adult fist and threw them at the boy. She missed her target. The terrified child turned to go towards the deep water in the dam. The appellant went out of the water and said she was not giving up the chase but was going to the other side of the dam to way lay him and catch him if he emerged there. The witness said the boy went under the water and resurfaced on two occasions but did not resurface when he went under for the third time. The appellant did not return to where the witness was washing her clothes. On her way home, as she was going past the appellant's home, she heard her talking from the kitchen to her husband who was combing his hair outside. She asked her what had happened to the boy. She said she did not know as she had not seen him on the other side of the dam where she had waylaid him.

The witness told the court that the appellant's home was about 500 metres from the dam, meaning that the appellant pursued the boy for 500 metres. She estimated the dam as being 80 metres wide at the point the boy attempted to cross it.

Under cross examination, the witness told the court that the appellant was very angry as she pursued the deceased. When asked if any of the stones she threw at the deceased hit him she fairly maintained that none of them did but they landed near him. When asked what she herself did to avert the danger to the deceased she said she realized the appellant was very angry and did not want to get into trouble herself. The appellant had already said she wanted to vent her anger. The witness told the appellant that the boy would not have drowned had she not prevented him from coming out of the water by throwing stones at him. She finally reiterated that if she (appellant) had listened to her advice when she advised her to give up the chase the boy would not have died. The witness testified that there was no bad blood between her and the appellant so she had no reason to give false testimony against her.

In her evidence, the appellant said all she wanted to do was to catch the deceased and take him to his father. That is clearly false. The reason why she wanted to catch him was to vent her anger by beating him up. She does not deny that she was angry and wanted to vent her anger.

The State's case shows clearly that the appellant, having driven the terrified child into the dam, went further and prevented him from coming out of the water by throwing stones at him. The child turned from the deep water of the dam and came face to face with the 32 year old appellant and apologized and asked for forgiveness. The child was more reasonable than the appellant who behaved like a heartless mother. One would have expected her to persuade the child to come out of the water when he ran into the dam. Instead, she followed him into the water and threw stones at him causing him to flee towards the deep water where he finally drowned.

Her actions verge on murder with constructive intent. She must consider herself lucky that she was charged with culpable homicide….,.

It was the court's finding that the appellant was very negligent by throwing stones at a terrified 10 year old boy, in deep water and preventing him from coming out of the water.

The court a quo was correct in preferring the evidence of Pauline Ndlovu to that of the appellant.

Pauline Ndlovu was a good witness who had no reason to tell lies against her neighbour. Her evidence reads well. The appellant's complaints in her grounds of appeal are without merit. For instance, it was not true to say she did not prevent the deceased from coming out of the water.  Neither was it true to say she had not thrown stones at the deceased. Pauline Ndlovu's evidence established these points.

The appellant was charged before a Bulawayo Regional Magistrate of five (5) counts of rape. He was convicted on all these counts and sentenced to 18 years imprisonment for Counts 1, 2 and 4 and 18 years imprisonment for Counts 3 and 5. Of the total 36 years imprisonment, 6 years was suspended on the usual conditions of good future behavior.

The allegations are briefly that the appellant raped the first complainant thrice and the second complainant twice. These complainants are siblings and were aged 7 years and 4 years respectively at the time of the offences.

It is trite law that evidence of such children in sexual cases should be treated with great caution and care. The court should only convict where it is satisfied that the evidence in question can safely be relied upon and that the dangers inherent in such testimony have been eliminated – S v Sibanda SC55-94.

In casu, the first complainant told the court in her evidence that she was raped by the appellant three times. She told the court that on the first two occasions she was with the second complainant and the two had gone to fetch firewood. On the last encounter she was on her own. But when she described the rapes that were perpetrated on her, she only described what amounts to one sexual act. The prosecution was very superficially and scant evidence was extracted from this complainant. The learned Regional Magistrate was not of assistance in this regard resulting in the first complainant's testimony being characterized by gaps. The witness did not give any further details. The other counts are not described at all.

No efforts were made to probe the witness any further.

Had the witness been probed further, the circumstances under which she was allegedly raped in the other counts would have been clearer. All that the testimony reveals is one sexual act. Unfortunately, no medical evidence was adduced during the trial in respect of this witness. We cannot understand why a medical report was not produced in such a serious case of rape on a minor child….,. At the end of the day all we have is testimony that the appellant got on top of the first complainant and there was some form of contact by his male organ with her body around her private parts. Whether this contact was sufficient to constitute legal penetration is not clear. This could have been easily clarified if there was adequate probing of the witness, or, better still, with the production of medical evidence. There is doubt as to whether there was legal penetration and the appellant is entitled to that doubt. Whether there was penetration or not, the evidence clearly establishes that the appellant got on top of the first complainant and there was some form of contact with her body via his male organ.

It is for that reason that we reduced the conviction to a permissible one in terms of section 275 as read with the Fourth Schedule of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. Section 70 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] is a competent verdict on a charge of rape. The sentence was also reduced to reflect that the appellant was convicted on one count of a lesser charge.

In respect of the second complainant, she told the court that she was raped twice by the appellant when she was in the company of the first complainant. On page 15 of the record of proceedings she was asked:-

“Q - What did he do to you?

A - He made me lie down and mounted me. He put a stick in my tobacco and mounted me.

Q - Did you see where he took the stick from?

A - From a tree.

Q - Where did he put it in you?

A - In my tobacco.

Q - What do you use your tobacco for?

A – Urinating.

Q - How did the stick look like?

A - It was big.

Q - What did he do with it?

A - He put it in my tobacco and mounted.

Q - What happened first mount or stick?

A - He first put the stick.”

Further, the witness says when the appellant was through, he went away and dug a hole, put the stick and covered with soil. She also went on to say that she later went there, dug and saw the stick.  When she was asked to demonstrate to the court on the anatomically-correct doll, she indicated by inserting her finger in between the thighs of the doll. When asked if she could see the stick on the doll, she pointed to the testicles on the doll and not the penis. The evidence, as given by the second complainant, also points to indecent assault on a young person. From the abovementioned dialogue, the second complainant mentions a stick and not a penis being inserted into her tobacco. When asked to demonstrate what the appellant had done to her, her demonstration pointed to something other than a sexual intercourse. On page 16 of the record, the second complainant's evidence was to the effect that she had been injured by the appellant with a stick at the back of the knee. No clarification was sought from the witness as to what she meant by that. It is not clear whether it was the same stick that was used on the back of the knees and on her tobacco. It was also important for the court to ascertain what sort of injury the complainant had suffered on the back of the knee and whether or not the injuries had been sustained on the same day or on a different day. As alluded to above, there was no medical evidence adduced apart from a “doctor's notes.”…,.

Be that as it may there is evidence that the appellant got on top of the second complainant and inserted a “stick” into her tobacco or thighs. This is indecent assault on a young person as defined in section 70 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The appellant is the Headmaster of Highfield High School. In 2009, the complainant was a Form Four pupil at the school. On 5 December 2009, the complainant left home for studies at school. It was a Saturday and she was in school uniform. Around 5 pm, the complainant was on her way home when the appellant observed her talking to a man who was holding a beer bottle. The complainant disputed that the person she talked to was holding a beer bottle. Nonetheless, she admitted that she did talk to this person because she knew him. The complainant initially described this person as a boy but under cross-examination she seemed to accept that it was a man. Irrespective of the precise description of this person, it is this brief encounter with the complainant that drew the appellant's ire. It was against school rules for the complainant to loiter or misbehave whilst in school uniform. The appellant caused the complainant to appear at his parked vehicle. After initial resistance the complainant eventually boarded the appellant's vehicle. The appellant wanted the complainant to show him her residence as he wanted to report her purported wayward behavior to her parents. By her own admission, the complainant took the appellant to the home of her friend within the neighborhood. This she did because she felt she had done nothing wrong. Thus, according to her reasoning, when they arrived at her friend's home the appellant could verify her home address. The additional explanation given by the complainant was that as they drove in the appellant's vehicle, the appellant continued to accuse her of misdirecting her to her residence. It is not in dispute that the appellant and the complainant reached the Muchenje house but then left without them talking to any adults. The complainant said some children approached the vehicle whereupon the appellant asked if he could be of assistance. The children in turn replied that this was their home. The appellant then drove off and suggested that they go to the school from where he could verify the complainant's address.

After going up to OK supermarket the appellant is said to have turned back and indicated to the complainant that she must show him her residence. The complainant again led the appellant to the Muchenje house. It is whilst they drove back that the complainant stated she was ordered by the appellant to part her legs. In the process of instructing her thus the appellant is said to have inserted his finger into her vagina. The complainant did not give much detail about this act during her evidence in-chief. However, during cross-examination she stated that the appellant inserted his finger thrice and each time he withdrew his finger he would sniff it.

When they reached the Muchenje house for the second time the appellant parked by the gate. Mr Muchenje then approached and sought to know if he could be of assistance but the appellant told him gruffly that he had nothing to do with his presence at the gate. Mr Muchenje then told the appellant to leave his premises. After leaving the Muchenje house, the appellant did not take the complainant to her residence. According to the complainant, the appellant dropped her off in the vicinity of Willowvale Flats after telling her that he had forgiven her. She then made her way home. Meanwhile, as soon as the appellant drove off, Mr Muchenje left for the complainant's residence. When he arrived there the complainant was already being questioned by her parents regarding her late return from school. Apparently, the evidence from the appellant's mother was that she arrived home around 7.15 pm. She was questioned whether she was still at school up to that time and she confirmed so.

Mr Muchenje's motive in seeking the complainant was that he suspected she had been looking for his daughter on behalf of the appellant. Therefore, when he arrived at the complainant's residence he demanded to know the old man who was in her company when they visited his house. This incensed the complainant's father who struck her with a belt. According to Mr Muchenje the father demanded to know what the Headmaster had done to the complainant. The complainant initially said the Headmaster had offered her a lift. She also stated that she had been given an undisclosed sum of money by the appellant. Mr Muchenje was not present when the complainant subsequently reported the indecent assault.

In the grounds of appeal, it is contended, on behalf of the appellant, that the trial court erred in dismissing the application for discharge at the close of the State case. In this respect it is contended that the court a quo erred in stating that the approach to sexual offences as enunciated in S v Mupfudza 1982 (1) ZLR 271 (SC) is no longer applicable without articulating the new approach. Related to this is the contention that the complainant was clearly unreliable as she contradicted herself in material respects. There is also the contention that the trial magistrate conducted the proceedings in an unfair manner that showed that he was biased against the appellant.

The State concedes that the appeal cannot be sustained. In filing the concession counsel for the State cited Rule 35 of the High Court Rules. This is erroneous as Rule 35 relates to matrimonial causes. He must have had in mind section 35 of the High Court Act [Chapter 7:06] which relates to the procedure where the Attorney-General does not support a conviction.

The concession by the State is well made.

The trial court completely disregarded a number of material inconsistencies in the complainant's testimony. A careful consideration of the complainant's evidence, in conjunction with that of the other State witnesses, leaves unresolved doubts which should inevitably be decided in the appellant's favour. In coming to this conclusion, one cannot entirely ignore the suspicious conduct of the appellant in the entire episode. This is particularly so if one considers his failure to verify the complainant's address with Mr Muchenje - despite visiting his residence twice. If he was so determined to establish the complainant's address why would he eventually drop her off elsewhere after a reprimand? Then there is Mr Muchenje's evidence that the complainant told her parents that the appellant had offered her a lift and that he had given her some money. One cannot entirely rule out an improper association between the two. Nonetheless, the testimony of the complainant was manifestly unreliable. Whilst she told the court that the indecent assault took place whilst the appellant drove to Mr Muchenje's residence, she told her own mother that this took place near CJ Hall whilst the vehicle was stationary. In another vein, the complainant told the trial court that the incident took place whilst she was seated in the front seat as the appellant drove back to Mr Muchenje's house. Mr Muchenje stated that the complainant was seated at the back. Mr Muchenje clearly described the complainant's posture whilst at the back seat. There is nothing to show that he made a mistake in his observation or that he had a motive to lie. The complainant only made a report against the appellant after she had been assaulted by her father. This is despite the fact that she had been questioned by her parents why she returned home late and had not volunteered the report of sexual assault.

Both counsels submitted, in their heads of argument that the trial court ought to have adopted the approach in S v Mupfudza 1982 (1) ZLR 271 (SC) in its assessment of the complainant's evidence.

The court in S v Mupfudza 1982 (1) ZLR 271 (SC) had this to say in respect of a complainant in a sexual offence… -

“Since this is only one of several recent cases in which the cautionary rule and its proper application seem not to have been fully understood it may be helpful to deal with the subject in some detail.

There are several types of witness, who, for one reason or another, must be regarded as suspect and whose evidence must be regarded as suspect and whose evidence must be approached with particular caution; among the more common are the accomplice, the complainant in a sexual case and the person found in possession of stolen property or through whose hands it has passed. In all such cases, there is potentially a danger of false incrimination, and before a trial court can safely convict on the testimony of such a witness it must satisfy itself that that danger has been excluded. But before I examine the circumstances in which a court can properly be so satisfied I must stress a point which is all too frequently overlooked.

The court looks for corroboration of the evidence of a suspect witness. But - perhaps precisely because of the search for corroboration - trial courts frequently forget that the court must first decide whether the suspect witness is credible; in other words, the court must first decide whether, taking into account all the circumstances of the case, including demeanour, the probabilities, and all the other considerations which triers of fact properly take into account in assessing credibility, it believes the witness. If not, the matter is at an end, and the question of corroboration of, or support for, his testimony does not arise; it is only if the court believes the witness that in cases where a cautionary rule applies it then proceeds to consider whether it might still not have been deceived by a plausible witness. LORD HAILSHAM stressed this point in DPP v Kilbourne [1973] 1 All ER 440 (HL) at page 452:

"Corroboration is only required…, if the witness requiring corroboration…, is otherwise credible. If his evidence is not credible, a witness's testimony should be rejected and the accused acquitted, even if there could be found evidence capable of being corroboration in other testimony. Corroboration can only be afforded to…, a witness who is otherwise to be believed. If a witness's testimony falls of its own inanition the question of his needing corroboration does not rise."

This two-stage approach is very clearly expressed by JAMES LJ in R v Turner (1975) 61 Cr. app. R 67; it was argued on behalf of one of the appellants that the trial judge "fell into error in his direction to the jury as to corroboration in that he failed to make it clear that the jury had to be satisfied that (the accomplice) was a credible witness before they considered the question whether there was…, (corroboration)…,.". In rejecting this submission JAMES LJ said, at page 84:

"The judge did not, in simple and precise terms, direct the jury to approach the question of corroboration in two stages, first, the credibility of (the accomplice), and secondly - and only if (the accomplice) was found to be credible - the existence of credible evidence, independent of (the accomplice) which supported (his) evidence…,. The whole tenor of the summing-up was that the jury would have to be satisfied of the truth of (the accomplice's) evidence before they could convict and that, even then, they ought not to convict unless they found corroborative evidence."

A similar approach was adopted in Bekker v Westenraad 1942 WLD 214 (a paternity case), where RAMSBOTTOM J (as he then was), said at page 22:

"[The woman] may be believed, but she will not succeed in her action unless there is, in addition, evidence aliunde to corroborate her. If she is not believed, that is the end of her case. If she shows herself to be a truthful and credible witness there is no reason why she should not be believed, though she will not be entitled to judgment unless there is corroboration. But if, in addition to her testimony which has been believed, there is evidence aliunde which corroborates her, she is entitled to judgment. There are therefore two elements in the enquiry; is the plaintiff to be believed, and is there corroboration? In many cases no doubt these two elements will be intermingled; the corroborating evidence may induce the court to accept the plaintiff's words; but there are other cases in which, without corroboration the court is in no doubt as between the parties, that it is the plaintiff who is speaking the truth, and in such a case the plaintiff is entitled to succeed, provided there is such corroboration of her evidence as the law requires. The method of considering first the credibility of the plaintiff and then whether her evidence is corroborated has been adopted in a number of cases of which Scholte-meyer v Potgieter (1916 TPD 188), Smit v Swart (1916 TPD 197), Mackay v Ballot (1921 TPD 430), are examples. This method appears to me to be logical and satisfactory and I propose to adopt it."

The importance of this two-stage approach is illustrated in the present case. The magistrate convicted the appellant because he found him to be an unsatisfactory witness and he believed the complainant; he does not appear to have appreciated that believing the complainant was only the first stage in the enquiry, and that, believing her, he must still satisfy himself that he had not been deceived. His acceptance of and reliance on the complainant's evidence seems to me to have been based on precisely the same considerations as are taken into account in assessing the evidence and credibility of a witness in any ordinary case. Such an approach is clearly incorrect in a case where, for one reason or another, a cautionary rule must be applied; in all such situations the court must not only believe the suspect witness but must in addition be satisfied that the danger of false incrimination has been excluded. If this were not the position then the cautionary rule would have little meaning; all cases would be reduced to a straightforward assessment of the credibility of the witnesses.”

The two rung approach was discarded by the Supreme Court in the case of S v Banana 2000 (1) ZLR 607 (SC) in which GUBBAY CJ had this to say regarding the cautionary rule in respect of complainants in sexual offences.., -

“There is a well-established rule in Roman-Dutch jurisdictions that judicial officers are required to warn themselves of the danger of convicting on the uncorroborated evidence of certain categories of witnesses who are potentially suspect. One such category concerns complainants in sexual cases.

In a long line of cases in this country, of which S v Mupfudza 1982 (1) ZLR 271 (S) is the landmark, the so-called two-stage test has been applied. The first question to be asked by the court is: "Is the complainant credible?" If the answer is in the affirmative, the next question is: "Is there corroboration of or support for the evidence of the complainant?" In other words, the court must not only believe the complainant, it must, in addition, be satisfied by an application of the cautionary rule, whether it might still not have been deceived by a plausible witness. It therefore must seek corroboration or evidence tending to exclude the danger of false incrimination. See also S v Chitiyo 1989 (2) ZLR 144 (S) at 145E-F; S v Chigova 1992 (2) ZLR 206 (S) at 219D-F and 220C-E; S v Makanyanga 1996 (2) ZLR 231 (H) at 241A-C; S v Zaranyika 1997 (1) ZLR 539 (H) at 555B-C.

However, in S v D & Anor 1992 (1) SA 513 (Nm) FRANK J (with whom STRYDOM JP agreed), in the Namibia High Court, took the opportunity to re-examine the need for the rule in sexual cases. He came to the conclusion that the cautionary rule in such cases has no rational basis for its existence. He held that while a trial court must consider the nature and circumstances of the particular offence, "in the end only one test applies, namely, was the accused's guilt proved beyond reasonable doubt, and the test must be the same whether the crime is theft or rape" (see at 517A-B).

This decision received the imprimatur of the South African Supreme Court of Appeal in S v Jackson 1998 (1) SACR 470 (SCA). In the course of a well-reasoned judgment, OLIVIER JA (with the concurrence of MAHOMED CJ and three other Judges of Appeal) said at 476e-f:

"In my view, the cautionary rule in sexual assault cases is based on an irrational and outdated perception. It unjustly stereotypes complainants in sexual assault cases (overwhelmingly women) as particularly unreliable. In our system of law, the burden is on the State to prove the guilt of an accused beyond reasonable doubt - no more and no less. The evidence in a particular case may call for a cautionary approach, but that is a far cry from the application of a general cautionary rule."

He commended as particularly important the eighth guideline formulated by LORD TAYLOR CJ in R v Makanjuola; R v Easton [1995] 3 All ER 730 (A) at 733c-d, which reads:

"In some cases, it may be appropriate for the judge to warn the jury to exercise caution before acting upon the unsupported evidence of a witness. This will not be so simply because the witness is a complainant of a sexual offence nor will it necessarily be so because a witness is alleged to be an accomplice. There will need to be an evidential basis for suggesting that the evidence of the witness may be unreliable. An evidential basis does not include mere suggestions by cross-examining counsel."

Prior to the decision in the Jackson case supra, it had long been accepted that criminal cases of a sexual nature fell into a special category. It was said that there was an "inherent danger" in relying on the unconfirmed testimony of a complainant in such a case. This belief resulted in the courts adopting a fixed cautionary rule of practice.

In S v M 1999 (2) SACR 548 (SCA), the Supreme Court of Appeal reiterated that the application of the cautionary rule to sexual cases was based on irrational and outdated perceptions. It again pointed out that although the evidence in such cases might call for a cautionary approach, this was not a general rule. The State was simply obliged to prove the accused's guilt beyond a reasonable doubt. And this approach applied to all cases in which an act of a sexual nature was an element (see at 555a-b).

Recently, in S v K 2000 (4) BCLR 405 (NmS), the Supreme Court of Namibia followed the decision in S v Jackson supra. It held that the cautionary rule had outlived its usefulness. There were no convincing reasons for its continued application. It exemplified a rule of practice that placed an additional burden on victims in sexual cases which could lead to grave injustice to the victims involved (see at 418H-419D).

It is my opinion that the time has now come for our courts to move away from the application of the two-pronged test in sexual cases and proceed in conformity with the approach advocated in South Africa. In so holding, I have not overlooked the well-researched judgment of GILLESPIE J in S v Magaya 1997 (2) ZLR 138 (H). But having regard to the abrogation of the obligatory nature of the rule in such countries as Canada, the United Kingdom, New Zealand and Australia, as well as by the State of California (see Chaskalson, et al, Constitutional Law of South Africa at 14-62; Hatchard, 1993 Journal of African Law 97 at 98; (1983) 4 Canadian Journal of Family Law 173), I respectfully endorse the view that in sexual cases the cautionary rule of practice is not warranted. Yet I would emphasise that this does not mean that the nature and circumstances of the alleged sexual offence need not be considered carefully.”

In respect of the single witness, the learned CHIEF JUSTICE had this to say at 614-616 -

“It is, of course, permissible in terms of s269 of the Criminal Procedure and Evidence Act [Chapter 9:07] for a court to convict a person on the single evidence of a competent and credible witness. The test formulated by DE VILLIERS JP in R v Mokoena 1932 OPD 79 at 80 was that the evidence of such a single witness must be found to be "clear and satisfactory in every material respect."

In The South African Law of Evidence 4ed at 573 the celebrated authors, HOFFMANN and ZEFFERT, rightly point out that Mokoena's case concerned the situation of a single witness claiming to have identified the accused by the light of a pocket torch as he ran past in the dark. Accordingly, they contend that the remarks of DE VILLIERS JP should be related to the context in which they were made.

Certainly, in purporting to lay down a general rule the dictum of the learned Judge President has been criticised as unhelpful and tending to obscure the ultimate purpose of the court's inquiry, which is whether the guilt of the accused has been proved beyond a reasonable doubt. See R v Abdoorham 1954 (3) SA 163 (N) at 165; R v Mokoena 1956 (3) SA 81 (A) at 85. In S v Sauls & Ors 1981 (3) SA 172 (A) at 180E-G, DIEMONT JA said:

"There is no rule of thumb or formula to apply when it comes to a consideration of the credibility of the single witness. The trial judge will weigh his evidence, will consider its merits and demerits, and, having done so, will decide whether it is trustworthy and whether, despite the fact that there are shortcomings or defects or contradictions in the testimony, he is satisfied that the truth has been told…,. It has been said more than once that the exercise of caution must not be allowed to displace the exercise of common sense."

In Zimbabwe, much the same approach has been adopted. In S v Nyati 1977 (2) RLR 315 (A) at 318E-G, LEWIS JP warned that the test in R v Mokoena supra is not to be regarded as an inflexible rule of thumb. There is no magic formula which determines when a conviction is warranted upon the testimony of a single witness. His evidence must be approached with caution and the merits thereof weighed against any factors which militate against its credibility. In essence, a commonsense approach must be applied. If the court is convinced beyond a reasonable doubt that the sole witness has spoken the truth, it must convict, notwithstanding that he was, in some respects, unsatisfactory. See also S v Nathoo Supermarket (Pvt) Ltd 1987 (2) ZLR 136 (S) at 138D-F.

Where the evidence of the single witness is corroborated in any way which tends to indicate that the whole story was not concocted, the caution enjoined may be overcome and acceptance facilitated. But corroboration is not essential. Any other feature which increases the confidence of the court in the reliability of the single witness may also overcome the caution.

And finally, in respect of reports by a complainant in a sexual offence, he went on to say at 616 -

“Evidence that a complainant in an alleged sexual offence made a complaint soon after its 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 allegation.

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 39G-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 be expected to make it. See R v C 1955 (4) SA 40 (N) at 40G-H; S v Makanyanga supra at 242G-243C.”

It would appear this is the approach the trial magistrate had in mind when he discarded the approach in S v Mupfudza 1982 (1) ZLR 271 (SC) in dismissing the application for discharge at the close of the State case. The only criticism one can direct at the judgment is that he did not properly articulate the dicta in S v Banana 2000 (1) ZLR 607 (SC). That notwithstanding, if the trial court had properly applied the principles of law enunciated in S v Banana 2000 (1) ZLR 607 (SC) it would have acquitted the appellant….,.

In terms of section 269 of the Criminal Procedure and Evidence Act [Chapter 9:07] single witness evidence can be sufficient to secure a conviction if it is from a competent and credible witness.

Corroboration is not necessarily a requirement.

This is an application for bail pending appeal.

The appellant was convicted of rape in contravention of section 65 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The appellant was sentenced to 15 years imprisonment of which 3 years imprisonment was suspended on the usual conditions.

The appellant avers that he has prospects of success on appeal in that:

(1) The court a quo grossly misdirected itself in convicting the appellant without applying the law regarding the manner in which the report of rape was made. He avers that it was not made freely and voluntarily.

(2) The court a quo erred in convicting the appellant without applying the law on the causes of the delay in making the report of rape. He avers that the report was only made after an interrogation by the victim's parents concerning her pregnancy.

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 appellant 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 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 and the complainant then mentioned the appellant by his nickname of “Dot com.”

This witness said it was on 30 August 2013, at 0830am, when the complainant told her about the alleged rape. She further explained that the appellant had sexual intercourse with her without her consent. The trial magistrate dealt with the issues surrounding the making of the report. It is common cause that the complainant and the appellant knew each other well prior to the commission of the offence and that they were close and the complainant referred to the appellant as “Dot com.” The appellant 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 a period of one month warranting that the complaint be thrown out. Again, on the issue of the circumstances under which it was made, nothing turns on that as the complainant's aunt, upon observing that something was wrong with the complainant, simply asked her if she was OK and complainant said she wasn't; she then asked her what was wrong and she mentioned “Dot com”, referring to the appellant. 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.

In such cases, the court has to adopt a common sense approach and be satisfied that the evidence of the complainant is the truth. All that is required is for the court to be satisfied that the complainant is a credible and reliable witness. Refer to the case of State vs Banana 2000 (1) ZLR 607 (SC).

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 facts of the case are as follows:

On 4 September 2007, the complainant was collecting maize cobs in her employer's field and putting them in sacks to form heaps. At about that time she saw the appellant, who she knew as a resident of the compound, approach her. He was in the company of a young boy, Gift Moyo, aged ten years. When the appellant got to where she was, he told the boy to go and tend cattle in the bush. The appellant remained behind and proposed love to her. She turned down the proposal but the appellant suddenly bent down and got hold of both her legs pressing them together and pulled her off balance. She fell to the ground and the appellant quickly got on top of her and pulled up her dress and had sexual intercourse with her without her consent. As the appellant overpowered her, he uttered words to the effect that he wanted to effect a deep penetration to feel her body. After making a couple of sexual movements, he withdrew his male organ and stood up, leaving her lying on the ground. He told her to get up and go, threatening to kill her should she report to anyone what had happened. She said she immediately left the scene and proceeded to her home. Later the same day, she went to her son and reported that the appellant had raped her. The two then proceed to Shamva Police and reported the matter.

The complainant was examined by a doctor at Shamva Hospital on 6 September 2007. The medical report established that she was sexually inactive and had reached menopause. There were bruises on her perineum and her vestibule was torn. The doctor concluded that penetration had been effected after some force was exerted on the complainant's body and genitalia. He also observed that her clothes were soiled.

The complainant's son, Kindon Chinomwe, gave evidence to the effect that he was approached by his mother, on 4 September 2007, at his workplace. She reported to him that the appellant had raped her at the field. She looked distressed at the time and her clothes were soiled. He suggested that there was nothing much he could do except to report the case to the police. He took the mother to the police and reported a rape case against the appellant.

The appellant's story was that the complainant had falsely implicated him in the commission of the offence. He said the reason for the alleged false allegation against him was that he assaulted the complainant at the field at the time she alleged he raped her. According to him, he had been herding cattle in the company of Gift Moyo and his elder brother, Last Muhamba. He then saw cattle which had moved into the field in which the complainant was collecting maize cobs. He, together with Gift Moyo, went to drive away the cattle from the fields. The complainant approached him and shouted insults at him. He moved away but the complainant followed him still shouting insults until she mentioned his parents' private parts. He said he got angry and slapped her once in the face. He left the complainant at the field but was later approached by the police on allegations that he had raped the complainant.

The appellant called Gift Moyo to testify on his behalf.

The evidence of Gift Moyo was inherently contradictory. He, at first, said that he approached the complainant together with the appellant who struck the complainant twice on the face accusing her of having stolen maize. He, however, later said in his evidence that he was on his way home and found the appellant and the complainant together. He first said that he witnessed the assault from a distance of 6 metres but later said it was 15 metres away. He did not see the complainant following the appellant shouting insults at him.

The appellant also called his elder brother, Last Muhamba.

His evidence was also riddled with inconsistencies. At first, he said that he heard the complainant crying from a distance of 100 metres, where she was with the appellant. He, at the same time, said he saw Gift Moyo approach the complainant and the appellant; when the appellant had said that he had approached the complainant together with Gift Moyo. He said when he heard the complainant crying he went to where the complainant was and saw the appellant strike her twice. On the other hand, he said that he saw the appellant strike the complainant twice before he got to where they were while at the same time saying he could not see what was happening because there was grass obstructing his vision. According to the witness, the appellant was holding the complainant with one hand while slapping her with the other when he got to where the two were.

The learned magistrate examined the evidence of the complainant relating to the commission of the offence and the identification of the appellant as the rapist. She found the complainant to be a credible witness. She also found that her evidence on the unlawful sexual intercourse was corroborated by the finding in the medical report. She also found that the fact that she had the courage to disclose to her own son that she had been raped was supportive of her credibility. She analysed the evidence of the respondent on the assault and found that there were serious contradictions which convinced her that the version of the appellant was false. She said the following:

“It is important to note here that this witness never made mention of the insults episode which forms the basis of the accused's defence. He talked of the stealing of maize as the reason for the assault, which was news to this court.

Further, his evidence was at variance with the accused's. Accused asserted that he slapped the complainant once, yet this witness said she was slapped twice and he said he was only 6 metres from where he observed accused slapping complainant twice. Now, the variance in their evidence makes it difficult to believe that the alleged assault ever happened because if they were indeed together then their evidence was supposed to be the same or at least similar. To this end, I am inclined to believe the complainant's evidence that this witness had been sent away by the accused before the rape happened.  This is why this witness said under cross-examination he could not dispute that the rape occurred because he had not been present all the time.”

When it comes to the evidence of Last Muhamba, the learned Regional Magistrate made reference to the contradictions which have already been referred to in his evidence. She said the following:

“This puts in doubt whether this witness was present at all or he just heard from this Gift. In another breath he said his attention was divided as he was busy guarding the beasts.

Added to this, this witness also said he saw the accused slapping the complainant twice contrary to the accused's assertion that it was only once that he had slapped the complainant, which also dented accused's story, and throws doubt of his presence at the scene, particulary as he was also prevaricating under cross-examination. Juxtaposing his evidence and that of Gift Moyo, the first defence witness, one would be inclined to believe that he rehearsed evidence with Gift Moyo who had been present before being chased away by the accused prior to the rape and then came up with this story of the slapping of complainant by the accused twice, yet the accused himself was talking of slapping her once.

As such, the evidence of these two defence witnesses did not take the defence case anywhere at all, as it dented it instead of corroborating it.

On the other hand, evidence of the complainant was clear, straightforward and consistent. She exhibited a very good demeanour and gave a detailed account of the events and how the rape happened and even gave detailed account of what accused was saying when he was penetrating her. Surely to suggest that such an old, unsophisticated elderly rural woman would fabricate and/or invent such details would be an affront of common sense. A lying witness would, in my view, not fabricate the type of detail as narrated by the complainant. Her story sounded original and rang bells of truths in it. She even broke down during proceedings. Surely, she could not have been stage-managing all that. She was consistent and stood her ground under cross-examination.”

Like the court a quo, this Court finds no basis for holding that the magistrate misdirected herself in any manner in finding the complainant a credible witness and accepting her evidence as proving beyond any reasonable doubt the commission of the offence and identification of the appellant as the offender. The evidence adduced clearly shows that the complainant must have had sexual intercourse with a male person before she made the report to her son.

The suggestion by the appellant's legal practitioner that she could have had sexual intercourse with a man between the time she reported to her son and the time she was examined by the doctor does not deserve serious consideration.

The reason is that medical examination formed part of the investigation to establish the truth of the allegations of the rape which had already been made to her son. So it is those allegations which formed the subject of the medical examination to the establishment of the truth of which the findings thereof were relevant. It must therefore be accepted that the injuries to the complainant's private parts and the evidence of penetration established by the examination by the doctor related to sexual intercourse which took place before the report to the complainant's son. The complainant's son observed soil on the complainant's clothes, confirming her evidence that she was felled to the ground.

There was no suggestion that the complainant could have deliberately soiled her clothes to fabricate evidence of rape. Her son's evidence that she was distressed at the time she made a report to her, together with his observation of the soil, is confirmatory of her credibility in so far as the fact that she had had sexual intercourse with a man before the report was made is concerned.

The question the learned magistrate, and the court a quo, had to answer is why the complainant would implicate the appellant as the man who had sexual intercourse with her in the fields without her consent.  This question is important because the complainant would have to be found to have shielded a man who injured her in the manner found by the doctor whilst effecting penetration of her private part without her consent.

The appellant's explanation that the complainant falsely implicated him because he assaulted her once by clapping her in the face had to be found to be reasonably possibly untrue to be rejected.

A close examination of the judgment of the learned magistrate, which was accepted by the court a quo, shows that the story by the appellant and his witnesses was found to be false. This finding is clearly supported by the contradictory evidence of the assault. Whilst the appellant says he assaulted the complainant once in the course of being pursued by her under the barrage of insults, Gift Moyo did not observe the pursuit. He said the respondent struck the appellant twice and gave a different reason for the assault. The other contradictory aspects of it noted by the magistrate shows Gift Moyo did not witness the assault he talked about. The same goes for Last Muhamba who gave evidence the effect of which is,that the appellant struck the complainant more than twice.

It is clear, therefore, that the only consistent and credible version on this issue of the assault was that of the complainant to the effect that the assault never took place.

In S v Trainor 2003 (1) SACR 35 SCA 1 ALL SA 435…, the court said:

“A conspectus of all evidence is required. Evidence that is reliable should be weighed alongside such as may be found to be false…,. In considering whether evidence is reliable, the quality of the evidence must, of necessity, be evaluated, as must be evaluated against the onus on any particular issue as in respect of the case in its entirety.”

On all the circumstances of the case, the learned magistrate and the court a quo were entitled to find that the evidence of the complainant had proved the offence against the appellant beyond any reasonable doubt. 

The accused is facing the charge of murder as defined in section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The charge is that on 22 December 2014, at Chiwichabeture Village 2, Triangle, the accused unlawfully caused the death of Jmes Muchini by striking him with a wooden hoe handle several times on the back and on the head intending to kill or realising that there was a real risk or possibility that his conduct may cause death and continued to engage in that conduct despite the risk or possibility.

The accused, then aged 22 years, and the now deceased, then aged 26 years, were siblings and stayed in the same village. It is common cause that prior to that fateful day a dispute arose pertaining to use of their father's cattle for ploughing. There are minor differences raised by the State and the defence as to the nature and scope of the dispute. Apparently, the accused and the now deceased could not plough together in their respective fields and their father decided to give the accused four (4) cattle to use as he had none of his and the now deceased two (2) cattle as he had two of his own. It is not clear what sparked the dispute on the day in question but after the accused spanned the four (4) cattle their father stopped the now deceased from doing the same saying he wanted to discuss certain issues with the now deceased. This did not go down well with the now deceased who insisted in spanning the cattle. Their father then tried to prevent the now deceased from leaving the cattle pen with the spanned cattle and the now deceased reacted in a physical manner.

It is alleged the now deceased then assaulted their father and mother which caused the now accused to be involved.

The State alleges that the accused, who was armed with a hoe handle, struck the now deceased on the back causing him to flee. It is said the accused chased after the now deceased and struck him with the hoe handle on the head killing him instantly.

In his Defence Outline, the accused raises the defence of self-defence in respect of himself and that of their parents. The accused also alleges he was provoked by the now deceased's conduct hence the defence of provocation.

The accused said he saw the now deceased attacking their father with a log used to close the cattle pen causing their father to fall down. He said the now deceased then turned on their mother whom he hit with clenched fists. The accused said he tried to defend their parents but the now deceased said he wanted to kill them and then flee to South Africa. As a precautionary measure, the accused said he approached the now deceased armed with a how handle but the now deceased attacked him with clenched fists. The accused said he then hit back assaulting the now deceased on the back with the hoe handle causing the now deceased to flee. The accused said the now deceased was looking for stones to attack the accused but the accused chased after him up to a stream. At the stream, the accused said the now deceased picked stones and hit the accused twice. The accused said he reacted by hitting the now deceased on the back with the hoe handle but one blow accidentally struck the now deceased on the head.

The cause of the now deceased's death is not in issue. As per Exhibit 1, the postmortem report compiled by Dr P.N. Magande on 23 December 2014, the deceased had a skull fracture and died as a result of the head injury. The accused admitted that he is the one who inflicted the head injury with Exhibit 3(a), being the hoe handle, whose description is as per Exhibit 3(b) as it was one metre in length and weighed 0.96 kg.

In his confirmed warned and cautioned statement, the accused gave a similar account as per his Defence Outline. The only notable difference being that in his confirmed warned and cautioned statement he said at the stream he struck the now deceased twice on the head with the hoe handle killing him instantly thus making no reference to the single blow in the Defence Ooutline which he alludes to an accident as he had aimed the back of the now deceased.

The State only led viva voce evidence from one witness, the now deceased's wife, Brenda Mandizvidza….,.

We now turn to the evidence of the now deceased's wife, Brenda Mandizvidza (Brenda).

Brenda, who is 23 years old, had been married to the now deceased for four (4) years and they had one child. She said soon after the now deceased's burial, her in-laws ordered her to return to her maternal home.

Brenda Mandizvidza confirmed the dispute over the use of cattle for draught power as already outlined and said the accused and the now deceased only used the cattle for one day after their father had given each one cattle to use before this fateful day. She confirmed that her father in law stopped the now deceased from spanning the cattle on the day in question when the accused had already spanned his own set of cattle saying, he, the father in law had issues to further discuss with the now deceased over the use of these cattle. She said the now deceased disagreed insisting that he be allowed to proceed to go and plough the fields and hold discussions later.

In her evidence, Brenda said after the now deceased spanned the cattle and Brenda was leading them out of the cattle pen her father in law blocked the exit of the cattle pen using a log and this incensed the now deceased who jumped out of the cattle pen and removed the log. She said her mother in law, who was also present at the cattle pen, intervened by assaulting the now deceased with fists but the now deceased pushed her to the ground. She said her father in law, in turn, assaulted the now deceased with fists and he too was pushed away and fell down.

Brenda said the accused, who was apparently lurking in the vicinity, stealthily approached the now deceased from behind and hit him very hard with Exhibit 3(a), the hoe handle. She said the now deceased, who was taken by surprise, staggered when the first blow was delivered on the back and when two further blows landed on the back the now deceased ran away for his dear life with the accused in hot pursuit still armed with the hoe handle. She said her mother in law followed in the same direction and she remained with her father in law at the cattle pen but followed later. Brenda said as she approached the stream she heard the thudding sound of someone being assaulted apparently with a hoe handle. Moments later, she said she met the accused who was still wielding the hoe handle, and as the accused passed her he told her to go and collect her dead husband as the accused said he had killed him.

Brenda Mandizvidza said she rushed to the scene where the now deceased was lying down and her mother in law sent her to fetch a bucket of water which was poured on the now deceased. She said this was to no avail as the now deceased was already dead lying facing down with blood oozing from the injured head. Brenda said her father in law, who had arrived, confirmed the now deceased was dead. She said moments later the accused arrived at the scene wielding a matchet saying if the deceased was alive he had intended to cut his hands and legs but the father in law told the accused that the now deceased was dead. Brenda said her mother in law, father in law and the accused ferried the now deceased's body in a wheel barrow to their homestead but the Village Head advised them to take the deceased's body back to the scene of the crime for police to attend - which they did.

According to Brenda, a member of the special constabulary first attended the scene and the accused lied that he had hit the now deceased with some stones on the head and even picked three (3) stones as the ones he had used. She her mother in law coerced her to corroborate the accused's false story saying she could not afford to have the accused incarcerated but Brenda revealed the truth that the accused had used a hoe handle. She said the accused only told the truth when other police details from Triangle arrived and questioned the accused who capitulated and retrieved the bloodstained hoe handle he had hidden in some hedge.

Under cross examination, Brenda did not at all change her evidence.

Counsel for the accused sought to portray her as a bitter widow who was hurt by the demise of her late husband and being caused to leave the matrimonial home. She indeed confirmed that her in-laws unceremoniously, and with undue haste, caused her to leave the matrimonial home. She also confirmed that she was hurt by the loss of her husband and now has to fend for the child alone. Brenda however insisted she simply narrated the truth of what happened.

Brenda Mandizvidza denied that that her in-laws were assaulted by the now deceased in the manner alleged but that the now deceased just pushed away both of them and that none of her in-laws was in any danger or injured. She dismissed as untrue that when the accused arrived and attacked the now deceased her in-laws were under any attack as both had already gotten up. She also dismissed as untrue that the accused even attempted to talk to the now deceased upon his arrival but just attacked the now deceased who never fought back or hit the accused. Brenda was clear that she did not witness the fatal attack of the now deceased by the accused at the stream but only witnessed three (3) blows delivered by the accused on the now deceased's back at the cattle pen before the now deceased fled from the scene….,.

We now turn to the accused's evidence.

To a great extent, the accused maintained the version he gave in Exhibit 2, his confirmed warned and cautioned statement, in his Defence Outline and evidence in chief.

The accused insisted, in his evidence, that it is the now deceased who attacked the accused first when the accused first approached the now deceased at the cattle pen. The accused said after he hit the now deceased with a hoe handle at the cattle pen he indeed chased after him when the now deceased fled. The accused maintained that he was again assaulted by the now deceased at the stream when he was pelted with stones on the stomach and leg. The accused insisted that it was when the now deceased tried to pick a third stone that the accused hit him with hoe handle, mistakenly, on the head when he had directed the blow at the now deceased's back.

As already pointed out, in his confirmed warned and cautioned statement, the accused said he hit the now deceased twice on the head with the hoe handle, but in court, he insisted it was once. In a bid to explain this disparity, the accused said he was caused by the police to exaggerate his evidence in his warned and cautioned statement.

The accused flatly denied that he told Brenda Mandizvidza that he had killed the now deceased or that he came back to the scene with a machete threatening further harm.

It was during the cross examination by counsel for the State that the accused's case collapsed like a deck of cards. The accused virtually wilted under precise questioning and it became very clear he was an untruthful witness.

The accused admitted that it was unnecessary for him to carry with him a hoe handle when he approached the now deceased at the cattle pen. He admitted not talking to the now deceased at the cattle pen before he attacked the now deceased. The accused admitted that it is the now deceased who in fact fled from the accused's attack at the cattle pen and that the accused had no cause to chase after the now deceased as he did. In the most damning way, the accused admitted that when he chased after the now deceased he wanted to discipline him as the accused was now very angry. The accused admitted he had no cause to chase after the now deceased for the 60-100m as the life of their parents was not in danger at all. In fact, the accused said none of his parents was unconscious. The accused said what motivated him to chase after the now deceased was to exact revenge.

In relation to the fatal blow or blows, the accused admitted that he used excessive force when he hit the now deceased's head which fractured his skull and caused excessive bleeding. Further, the accused admitted that there was real risk or possibility that the now deceased could die from such an attack on the head with such high degree of force with a weapon like a hoe handle. The accused admitted hiding the hoe handle, Exhibit 3, and that he initially lied to the police that he had attacked the now deceased with some stones.

The accused's version of events on how he attacked the now deceased is clearly improbable. It is inconceivable that the accused would advance towards the now deceased who was pelting him with stones at the stream. The logical thing for the accused to have done was to run way from danger not towards danger! No wonder why the accused admitted that he fatally assaulted the now deceased on the head when the now deceased had fallen down. To his credit, the accused later admitted that his conduct was driven by anger rather than self defence or provocation. To quote the accused, he said;

“I cannot understand the rage I felt that day which caused me to kill the deceased and I am hurting.”…,.

In terms of section 253(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23], the defence of self-defence of a third party is a complete defence for a charge of murder. In terms of section 239 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], the defence of provocation is a partial defence to the charge of murder.

In our assessment of the facts and the evidence none of the two defences is available to the accused.

It cannot be said, by any stretch of imagination, that when the accused chased after the now deceased, who was running away for his dear life as the accused was wielding a hoe handle, the accused was acting in self defence or the defence of the accused's parents. Even the accused admits to this fact. The accused was simply angry about the dispute involving draught power and wanted to discipline the now deceased. That is why he chased after the now deceased to exert revenge. The accused admitted that he administered the fatal blow when the now deceased had fallen down. This means when he fatally attacked the now deceased he was not acting in self-defence or defence of his parents. This explains why he initially lied to police that he had used stones to assault the now deceased and went on to hide the hoe handle.

From the facts before us, there is nothing to suggest that the accused was provoked to an extent that he lost control of his faculties or self-control. What could have provoked him to that extent?

Nothing, in our view. Even counsel for the accused concedes to these facts in his closing written submissions.

In our view, it is competent for the court to convict an accused person on the evidence of a single credible witness.

See section 269 of the Criminal Procedure and Evidence Act [Chapter 9:07].

This court can completely rely on the evidence of Brenda Mandizvidza. Indeed, there was no eyewitness to the fatal attack but it can be inferred from the facts proved and admissions by the accused that the accused had the requisite intention to commit the offence.

While it may be accepted that the accused may not have intended to kill his brother, the now deceased, when he attacked him at the stream; the manner in which the assault was perpetrated, with a lot of force, using a hoe handle, fracturing the skull, leads to the inescapable conclusion that the accused realised that there was a real risk or possibility that the now deceased would die but nonetheless continued to engage in that conduct oblivious of that risk or possibility. The accused may escape liability of murder with actual intent but cannot escape conviction of murder with constructive intent.

As regards the circumstances surrounding the stabbing, the State relied on the evidence of a single witness.

In S v Banana 2000 (1) ZLR 607 (SC), GUBBAY CJ…, had this to say:

“It is of course, permissible, in terms of section 269 of the Criminal Procedure and Evidence Act [Chapter 9:07] for a court to convict a person on the evidence of a single, credible and competent witness. The test formulated by De VILLIERS JP in R v Mokoena 1932 OPD 79 at p 80 is that the evidence of a single witness must be clear and satisfactory in every material respect.”

In Last Mupfumburi v State HH64-15…, I said:

“In R v Mokoena 1956 (3) SA 81 (A) at 85-86 it was laid down that the uncorroborated evidence of a single witness should only be relied upon if the evidence was clear and satisfactory in every material respect. Slight imperfections would not rule out reliance on that evidence but material imperfections would. The court stated that single witness evidence should not be relied upon where, for example, the witness had an interest adverse to the accused, or has made a previous inconsistent statement, has given contradictory evidence or had no proper opportunity for observation. However, in the latter case of S v Sauls & Ors 1981 (3) SA 172 (A), the Appellate Division stated that there was no rule of thumb to be applied when deciding upon the credibility of single witness testimony. The court must simply weigh his evidence and consider its merits and demerits. It must then decide whether it is satisfied that it is truthful, despite any shortcomings, defects or contradictions in that testimony. The approach adopted in the Sauls case was followed in the case of Nyabvure SC23-88. See also Worswick v State SC27-88; S v Mukonda HH15-87; S v Nemachera SC89-86; and S v Corbett 1990 (1) ZLR 205 (S).”

The appellant was convicted on one Count of theft as defined in section 113(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]….,.

This matter raises the single issue of the sufficiency of evidence by a single witness in a criminal trial. What is the probative value attached to such a witness when he testifies in a case in which his interest looms large? Pointedly, that is also the only ground of appeal succinctly raised by the appellant.

The facts upon which the conviction was based were as follows;

The complainant boarded a Dzivaresekwa-bound commuter omnibus. He sat in the front passenger seat. Between him and the driver was a conductor. He was asked to close the door as the bus took off at high speed. There were other passengers inside the bus. After a short distance, which the complainant gave as 200m, he was told to disembark as the bus was no longer going to Dzivaresekwa. He did as ordered. Upon disembarking he realised that he had been relieved of his wallet. Immediately, he got onto the next commuter omnibus and a car chase involving the two omnibuses followed. The former commuter omnibus evaded the latter. The complainant gave up the chase and went to make a police report at Dzivaresekwa Police Station near his home. Police there advised him to lodge his report with Kuwadzana Police Station. He went home and changed his clothes. Later, he was recalled to his place of employment. He decided to make a police report at Kuwadzana Police Station on his way back to work. As he walked along the road, he then saw an omnibus which he flagged down. The appellant was the conductor occupying the same seat as did his assailant a few hours previously. He announced that the appellant had stolen from him and effected a citizen's arrest. Police on patrol nearby came and picked the appellant on these charges. He repeated this evidence during trial.

No other witness was called by the State.

The learned trial magistrate found that there were inconsistencies in his testimony but went on to convict on the evidence of a single witness.

The Law Regarding Single Witness Evidence

The entire State case against the accused may rest upon the evidence given by a single State witness. This may be because the State has been able to produce only one witness against the accused. Alternatively, the State may have called more than one witness but the only evidence on which the guilt of the accused is going to depend is that of one witness alone. This situation has been referred to as a "boxing ring" situation because the outcome of the "contest" hinges on which of the two contestants is believed, namely, the State witness or the accused.

With crimes, other than perjury and treason, the court may be entitled to convict an accused on the basis of the un-corroborated evidence of a single, competent, and credible State witness: section 269 of the Criminal Procedure and Evidence Act [Chapter 9:07].

There is obviously a risk which attaches to convicting the accused on the basis of the uncorroborated testimony of a single witness. There is a scarcity of evidence in the case and the testimony of the witness is the sole proof of the accused's guilt. In this situation, the danger arises of poor observation, faulty recollection and reconstruction of evidence after the event, bias, and any other risk that the circumstances of the case suggest. Before the court relies on such evidence, it must be satisfied that the quality of evidence must make up for the lack of quantity. It is recognised that corroboration is regarded by many as a cornerstone of the criminal justice system. It is perceived to be an important check which helps to ensure, so far as practicable, that miscarriages of justice are kept to a minimum.

Sufficiency of evidence is the amount of evidence required for a conviction. This is a matter of law. It is not concerned with whether the evidence is truthful or reliable. There may be sufficient evidence for a conviction, yet the judge or jury may choose to acquit an accused because of the quality of that evidence.

For a person to be convicted of a crime there must be:

(a) At least one source of evidence, e.g. the testimony of a witness, that describes the commission of the crime and points to the accused as the perpetrator; and

(b) An additional source of evidence, e.g. the testimony of at least one other witness, which confirms or supports the first source in respect of each of these two essential or crucial facts, i.e. that the crime was committed and that the accused was the perpetrator.

The sources may consist of direct (eyewitness) evidence or indirect (circumstantial) evidence.

The requirement for corroboration

Corroboration is biblical in origin; its roots being found in references in both Old and New Testaments to a fact needing to be established by two or more witnesses. The purpose of the requirement is to protect an accused from being convicted on the basis of a single witness who may be either fallible or dishonest.

HUME states:

"No matter how trivial the offence and how high so ever the credit and character of the witness since the law is averse to rely on his single word in an inquiry which may affect the person, liberty or fame of his neighbour; and rather than run the risk of such an error, a risk which does not hold when there is concurrence of testimonies, it is willing that the guilty should escape."

The classic statement on the principle of corroboration comes from a civil case of O'Hara v Central SMT Co 1941 SC 363 LP (NORMAND)…,;

"Corroboration may be by facts and circumstances proved by other evidence than that of a single witness who is to be corroborated. There is sufficient corroboration if the facts and circumstances proved are not only consistent with the evidence of the single witness but more consistent with it than with any competing account of the events spoken to by him. Accordingly, if the facts and circumstances proved by other witnesses fit in to his narrative so as to make it the most probable account of the events, the requirements of legal proof are satisfied."

The requirement for corroboration was re-stated more recently in Fox v HM Advocate 1998 JC 94 LJG (RODGER)…, in the following, rather different, terms:

"Corroborative evidence is…, evidence which supports or confirms the direct evidence of a witness…,. The starting point is that the jury have accepted the evidence of the direct witness as credible and reliable. The law requires that, even when they have reached that stage, they must still find confirmation of the direct evidence from other independent direct or circumstantial evidence…,. The evidence is properly described as being corroborative because of its relation to the direct evidence: it is corroborative because it confirms or supports the direct evidence. The starting point is the direct evidence. So long as the circumstantial evidence is independent and confirms or supports the direct evidence on the crucial facts, it provides corroboration and the requirements of legal proof are met."

In R v Mokoena 1956 (3) SA 81 (A)…, it was laid down that the un-corroborated evidence of a single witness should only be relied upon if the evidence was clear and satisfactory in every material respect. Slight imperfections would not rule out reliance on that evidence but material imperfections would. The court stated that single witness evidence should not be relied upon where, for example, the witness had an interest adverse to the accused, has made a previous inconsistent statement, has given contradictory evidence or had no proper opportunity for observation.

However, in the latter case of S v Sauls & Ors 1981 (3) SA 172 (A), the Appellate Division stated that there was no rule of thumb to be applied when deciding upon the credibility of single witness testimony. The court must simply weigh his evidence and consider its merits and demerits. It must then decide whether it is satisfied that it is truthful, despite any shortcomings, defects or contradictions in that testimony. The approach adopted in the Sauls case was followed in the case of Nyabvure SC23–88. See also Worswick v State SC27-88, S v Mukonda HH15-87, S v Nemachera SC89-86 and S v Corbett 1990 (1) ZLR 205 (S).

BECK JA, in his article in 1986 Vol 1 No.1 Prosecutors Bulletin…, says that in assessing the quality of the single witness' evidence, to decide whether the accused should be convicted on the basis of this evidence, the court should be most attentive to the nature of the witness, looking at his apparent character, his intelligence, his capacity for observation, his powers of recall, his objectivity and things like that. The evidence should be carefully weighed against the objective probabilities of the case and against all the other evidence which is at variance with it. The court must have rational grounds to conclude that the evidence of the single witness is reliable and trustworthy and is a safe basis for convicting the accused.

Thus, although an accused can be convicted on the basis of the uncorroborated testimony of a single, competent, and credible State witness, the court must assess, very carefully, the credibility and reliability of such a witness to see whether it is safe to convict on the basis of his testimony alone. The courts have pointed out that proper investigation of criminal cases will usually uncover corroborating evidence and that it is seldom necessary to rest the entire State case upon single un-corroborated testimony. The courts have exhorted police officers and prosecutors not to be content with the production of evidence from a single witness. However, where it appears to a court that there are other witnesses who may be called, it has the power to call these witnesses itself in appropriate cases.

In S v Musonza & Ors SC217–88, the Supreme Court stated that, as a general rule, it is undesirable to rely solely and entirely on the evidence of the complainant, particularly in assault cases, and, more particularly, where there are counter-allegations of provocation, self- defence or justification in one form or another. The complainant, in such cases, has a clear bias and a reason to place himself in a favourable light and the accused in an unfavourable light.

In S v Tamba SC81–91, the Court stated that in assault cases, where there are other witnesses to the incident in addition to the complainant, these witnesses should be called and the case against the accused should not be left to rest upon the testimony of the complainant alone. It is wrong to deal with such cases as if they were a "boxing match" between the complainant and the accused. These two protagonists should not, as it were, be thrown into the ring with the magistrate as referee, who, at the end of the bout, having awarded points for demeanour and probability, would name the winner (who would usually be the complainant). It was even worse if the magistrate is, as often seemed to be the case, a biased referee who worked on the unspoken assumption that the police would not have charged the accused if he was not the guilty one. This approach, said the Supreme Court, was dangerous, especially in assault cases where almost invariably the parties give conflicting versions of what was the cause of the fight and often both versions are partially untrue or exaggerated. Without evidence from bystanders, it was almost impossible to determine which version of the facts was the true one.

In S v Zimbowora SC07–92, the appellant had been convicted of three counts of contravening the Labour Relations Act. The State case had rested entirely on the evidence of the complainant. On appeal, the Supreme Court said that although the trial court was entitled to convict the appellant on the single evidence of the complainant, it was necessary for such evidence to be clear and satisfactory in every material respect. As the complainant was a witness with an interest to serve, the trial court was not only required to approach her evidence with caution but should also have sought corroboration of her evidence. The conviction was set aside by the Supreme Court as the complainant's evidence was not satisfactory in all material respects and no evidence was led to corroborate her assertions.

In S v Nduna & Anor HB48–03, it was held that where a conviction relies on the evidence of a single witness, discrepancies in the witness's evidence are not necessarily fatal. The discrepancies must be of such magnitude and value that it goes to the root of the matter to such an extent that their presence would no doubt give a different complexion of the matter altogether. The fact that the single witness is himself guilty of some unlawful conduct does not make him an accomplice in the crime which is charged. Where the accused, who were policemen, arrested and robbed a person who was crossing the border illegally, that person was not an accomplice.

The present case demonstrates all the reasons why corroboration is required in criminal trials more acutely than the above cases. The following features stick out like a sore thumb:

(i) The complainant only had a fleeting encounter with his assailants;

(ii) There was virtually no opportunity for observation of any features of the “thief”;

(iii) No particulars of the commuter omnibus was recorded during the chase;

(iv) No reason was given for the failure to call the driver of the pursuing omnibus;

(v) No description is given by the complainant, to the police, of his assailant upon making his initial report at Dzivaresekwa Police Station;

(vi) The possibility of an honest but mistaken identification of both the appellant and his omnibus

was not eliminated.

The complainant clearly believed that the approaching omnibus was the same omnibus in which the crew which robbed him were using. The court a quo did not demonstrate how it had applied the cautionary rule so as to render the conviction safe and reliable as required by section 269 of the Criminal Procedure and Evidence Act [Chapter 9:07].

In the result, the conviction remained unsafe. It is therefore set aside and the sentence imposed consequent to the conviction is hereby quashed.

The accused person's version is the only version that is available at that crucial stage.

The…, observed matters should have placed the trial court on its guard before it proceeded to accept, as it did, the testimony of the complainant.

It misdirected itself in a material way when it accepted the mere say so of the complainant's evidence without a critical analysis of the same.

The cardinal rule which stands out clearly in complaints of a sexual nature is that the complainant must be believed before any corroborative is sought. Where the complainant is, as in casu, not credible, the matter ends there. The parties are, in this regard, referred to the case of State v Mhandu 1985 (1) ZLR 288 (9) in which the rule was succinctly articulated.

In this case, the court a quo could only rely on Rufaro Mvududu's evidence.

In terms of section 269 of the Criminal Procedure and Evidence Act [Chapter 9:07] it shall be lawful for the court by which any person prosecuted for any offence is tried, to convict such person of any offence alleged against him in the indictment, summons or charge on the single evidence of any competent and credible witness.

Rufaro Mvududu's evidence, in my view, is unsatisfactory in material respects.

She said she immediately reported the incident to her superior. What is surprising is why this matter was not reported to the police at the border by the so-called supervisor if indeed Rufaro had reported it. Secondly, according to Gamuchirai Chirikure, Rufaro Mvududu did not voluntarily divulge what happened to her. It is Chirikure who had to quiz Rufaro on her role in the discussion with the three men in the truck the previous day. Thirdly, at the close of the State case, the court had two versions of what possibly happened at the border. It was improper for the court to reject one version simply because Gamuchirai Chirikure is a police officer who was keen to exonerate another police officer.

If, indeed, the appellant approached Rufaro at that gate why is it that only Rufaro Mvududu saw him there?

In S v Makanyanga 1996 (2) ZLR 231, GILLESPIE J remarked that:

“Proof beyond a reasonable doubt demands more than that a complainant should be believed and the accused disbelieved. It demands that a defence succeeds whenever it appears reasonably possible that it might be true.

This insistence, upon objectivity, far transcends mere considerations of subjective persuasion which a judicial officer may entertain towards any evidence. The administration of justice would otherwise be the hostage of the plausible rogue whose insincere but convincing blandishments must prevail over the stammering protestations of the truth by the diffident, frightened, or confused victim of false incrimination.” …,.

From the evidence on record, it cannot be said that there is no reasonable possibility that the appellant's defence might be true.

For these reasons we upheld the appeal and quashed the conviction and sentence.

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.

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.

As regards the issue of the court's reliance on the evidence of a single witness, I found no fault with that since it is competent for a court of law to convict on the evidence of a single credible witness in terms of section 269 of the Criminal Procedure and Evidence Act [Chapter 9.07].

Maruda Chisahwira was taken to task about her relations with the accused and whether this did not influence her to falsely incriminate the accused.

She did not hide her disappointment with the accused whom she said did not accept her reprimand as a mother and always disrespected her saying she was an outsider in the family. She also insisted that she had every reason to cause the accused's arrest after he burnt her huts and refused to withdraw the charges. She said the accused, for a long time, had not respected her as his mother and that there was nothing she could do about it.

Maruda denied that this caused her to lie against the accused about the assault….,. Maruda said while she may have had problems with the accused, her son, she nonetheless told the court the truth of what happened.

Our analysis of Maruda Chisahwira's evidence is that she gave a simple coherent and straight forward account of her relations with both the accused and the now deceased and also the events of the night in question. Despite her advanced age she admirably withstood the lengthy cross examination and was alert.

Our impression of Maruda is that she is an old long suffering woman who was abused by both the now deceased husband and the disrespectful son, being the accused. That was very clear in her demeanour but did not distract her from being truthful to the court. Her recollection of the events of the night in question, after 13 years, and at her age, is amazing. It was clear that this incident traumatised her and should have remained etched in her mind.

Our assessment of Maruda Chisahwira is that she was a fair and balanced witness. She was candid with the court about her bad relations with both the accused and the now deceased and did not seek to minimise or exaggerate the vices of either of the two - especially their violent conduct.

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….,.

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….,.

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 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).”…,.

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…,.

Apart from the uncorroborated evidence of Inspector Nyararai, no other evidence emerged positively identifying this accused person as having been at the scene of the crime participating in the commission of the crime.

Inspector Nyararai did not know this accused person prior to that date....,.; he bears no striking mark to make him easily identifiable. For that reason, we consider it unsafe to convict on the basis of rather shaky evidence of identification.

The accused, Lazarus Maengehama, is entitled to the benefit of a reasonable doubt. He is accordingly found not guilty and discharged on both counts.

Anesuishe Baloyi was the single witness for the State in Count One.

In the first rape, the applicant is alleged to have sneaked into the complainant's bedroom early around/ or between, 03:00 hours and 05:00 hours. He is alleged to have pulled off the blankets from the complainant, covered her mouth with one hand and pulled down her dress with the other. He allegedly removed the complainant's pant, got on top of her, and had sexual intercourse with her once without her consent.

It was the State's case that on that first occasion the complainant reported the rape to a maid employed by the applicant's family at the time, one Dorothy. That was around 05:00 hours or 06:00 hours when Dorothy had come in for her daily household chores. She had found the complainant weeping.

On the second occasion, the applicant is alleged to have entered the complainant's bedroom and asked her for sex. She had refused. He had forcibly had sexual intercourse with her after he had overpowered and undressed her. It was also the State's case that the complainant had also reported this abuse to Dorothy.

It was common cause at the trial that the complainant did not report these two rapes to anyone else. The applicant not only denied them in toto, but he and his witnesses also denied that the complainant could have possibly reported to Dorothy.

Dorothy was not called to give evidence. The State said she could not be located….,.

The difficulty that I have…, on this particular aspect is that, whether Dorothy gave evidence or not, the court a quo chose to believe the complainant and chose to disbelieve the applicant.

Was that a misdirection?

If yes, was it so pertinent or so cogent and so outrageous in its defiance of logic as to warrant interference by the Appeal Court?...,.

The complainant gave a graphic description of all the events before and after the rape in Count Three.

The applicant himself admitted that the complainant had indeed called him on the previous day for an appointment the following day. He admitted they had spoken together. He admitted she had made a request for uniforms. That had not been unusual. It was common cause that the complainant would do this from time to time and that the applicant would oblige - but on this occasion the applicant was now saying he advised her to channel her request through his wife.

Why now?….,.

The court a quo disbelieved him.

The court convicted only on the evidence of the complainant and her father.

Ordinarily, there would be nothing wrong with that. If the evidence was credible, and it was cogent enough to establish rape beyond any reasonable doubt, the court could legitimately convict. But, in this case, the complainant was not credible. The father might have been. But the evidence as a whole was not doubt proof. There were several question marks. The accused's own version of events was not discredited. The trial court was most perfunctory in its assessment of the evidence and in its judgment. The focus and emphasis of the judgment was on wrong areas or irrelevant principles….,.

The court a quo did not caution itself against the danger of false incrimination….,.

It all goes to credibility.

The law relating to a single witness was set out in R v Mokoena 1956 (3) SA 81 (A)…,. It was held that:

“The uncorroborated evidence of a single witness should only be relied upon if the evidence was clear and satisfactory in every material respect. Slight imperfections would not rule out reliance on that evidence but material imperfections would…,. However, in the latter case of S v Sauls & Ors 1981 (3) SA 172 (A) the Appellate Division stated that there was no rule of thumb to be applied when deciding upon the credibility of single witness testimony. The court must simply weigh his evidence and consider its merits and demerits. It must then decide whether it is satisfied that it is truthful, despite any shortcomings, defects or contradictions in that testimony. The approach adopted in the Sauls case was followed in the case of Nyabvure SC23-88. See also Worswick v State SC27-88; S v Mukonda HH15-87; S v Nemachera SC89-86; and S v Corbett 1990 (1) ZLR 205 (S).”

The evidence of a single witness was also discussed by BECK JA in his article in the 1986 Vol 1 No.1 Prosecutors Bulletin…,. where he says:

“In assessing the quality of the single witness' evidence, to decide whether the accused should be convicted on the basis of this evidence, the court should be most attentive to the nature of the witness, looking at his apparent character, his intelligence, his capacity for observation, his powers of recall, his objectivity and things like that. The evidence should be carefully weighed against the objective probabilities of the case, and against all the other evidence which is at variance with it. The court must have rational grounds to conclude that the evidence of the single witness is reliable and trustworthy and is a safe basis for convicting the accused.”

In such a situation where there is a contest of credibility between an alleged male assailant and an alleged female assailant the court is indeed entitled to take cognisance of the fact the vast majority of crimes of violence are committed by men.