Judgment No. HB 52/2003

Case No. HCA 180/2000

GILBERT ZULU

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

CHEDA AND NDOU JJ

BULAWAYO 31 MARCH AND 8 MAY 2003

G Nyoni for the appellant

Mrs M Cheda for the respondent

Criminal Appeal

NDOU J: The appellant was convicted by a Bulawayo Provincial

Magistrate for indecent assault it being alleged that he fondled the complainant’s

breasts and touched her legs (or lifted her skirt). He was sentenced to 24 months

imprisonment with 6 months suspended on condition of good behaviour. The

appellant is aggrieved and dissatisfied with the conviction and sentence. This appeal

is an expression of such dissatisfaction. The salient facts of this matter are that the

appellant’s and the complainant’s families shared a house in Makokoba suburb,

Bulawayo. The complainant was aged ten (10) years at the time of the incident. It is

common cause that on 12 December the appellant’s and the complainant’s family

members were away. It is common cause that the appellant called the complainant

and sent her to go and buy him beer at a nearby shebeen. It is common cause that

when the complainant returned the appellant further sent her to go and get an opener

from her parent’s room. She obliged. When she returned with the opener and handed

it over to appellant the appellant’s and complainant’s versions start to differ. On the

one hand the appellant testified that the complainant brought an opener which

depicted a man and woman intimately involved in some act. He asked the

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complainant about the ownership of this opener. She indicated to him that it belonged

to her father. He warned her against the use of the opener, as it was “obscene”. He

denied fondling complainant’s breasts or lifting up her skirt or touching her legs. He

was surprised to hear about these allegations of indecent assault from the

complainant’s father. On the other hand, the complainant gave the following account

i.e. after she returned with the opener –

“Accused asked me what grade I was doing at school and I told him I was in grade 5. He asked me how old I was and I told him 10 years. Accused then pulled me on to the sofa he was sitting on and started fondling my breasts. He then asked me whether I was able to misbehave and I told him I could not. He said “does it fit” and he asked that I opened (sic) my legs. I did not know that accused was referring to when he said, “does it fit?” Accused then gave me $20 and said I was to put it in my bag.”

I agree with Mr Nyoni, for the appellant, that the prosecution was poorly

conducted. The complainant was not asked whether she in fact “opened her legs” or

lifted up her skirt. Besides the fondling of breasts the testimony does not show any

further assault of an indecent nature. As these facts had been alleged in the state

outline the prosecutor should have canvassed the issue further when the complainant

testified especially when the complainant was aged ten years. In his judgment the

learned trial magistrate found “the accused then pulled her to the sofa he was seated

and fondled her breasts and opened her legs after asking her to behave” (emphasis is

mine). The highlighted parts of the judgment are based on the allegations in the state

outline. In her testimony, the complainant never mentioned that. The learned trial

magistrate misdirected himself in this regard. Mr Nyoni did not attribute this failure

to lead such evidence to the credibility of the complainant. This is a case of poor

presentation of evidence by the prosecutor which is not of complainant’s making and

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thus the assessment of her demeanour is not affected thereby. It is trite that the

complainant’scredibility is not to be assessed on apparent conflicts between her viva

voce evidence and a statement or summary of the case prepared by someone else – see

S v Chigova 1992 (2) ZLR 206 (5) at 213D. In any event the inconsistency referred to

cannot be said to be so blatant as to be irreconcilable, that being so, too much weight

cannot be placed on them – see John Weeks and Another v State SC-118-93 at page 7

of the cyclostyled judgment.

It is trite that the assessment of the credibility of a witness is the province of

the trial court. See S v Mlambo 1994 (2) ZLR 410 (5). At page 413 of the said

judgement GUBBAY CJ stated –

“The assessment of the credibility of a witness is par excellence the province of the trial court and ought not to be disregarded by an appellant court unless satisfied that it defies reason and common sense.”

In Alice Soko v State SC 118-92 at page 8 of his cyclostyled judgment

EBRAHIM JA stated as follows:

“A court of appeal will not interfere with a trial court’s assessment on credibility tightly. There has to be something grossly irregular in the proceedings to warrant such interference. This is because the trial court by having the witness before it is better able to make an assessment on demeanour and all other factors relevant in assessing credibility. The Appeal Court, on the other hand, is confined to the record.”

In Joseph Mbanda v State SC-184-90 at page 7 of his cyclostyled judgment

GUBBAY CJ stated as follows:

“An appellant court must never overlook that the trial court’s living through a drama of a case is in a unique position to evaluate the evidence in its proper perspective. To justify the conclusion that the assessment made by a trial court of the credibility of the witnesses is wrong, an appellant court must be persuaded that the finding defies reason and common sense. Questions of credibility are par excellence the province of the trial court.”

The above cases set out admirably the approach that this court sitting as a

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court of appeal, should adopt. The crux of the matter in casu is the finding of

credibility of the complainant by the trial court. My careful reading of the record of

proceedings in casu, does not lead me to a conclusion that there were gross

irregularities in the manner in which the trial was conducted. But, that is not

necessarily the end of the matter. As rightly pointed out in the Soko case (supra) at

pages 8-9 –

“The matter does not, however, end that easily. The legal system is based on the principle of the presumption of innocence. Before an accused person is convicted, the state must prove beyond reasonable doubt that it was indeed the accused who committed the offence in question.”

With this in mind I examined the totality of the state evidence carefully.

Although it is trite that the cautionary rule in sexual offences is no longer warranted,

the sexual acts still need to be considered carefully – see S v Banana 2000(1) ZLR

607 (5). At page 614E-G of the judgment GUBBAY CJ stated –

“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 139 (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.” (The emphasis is mine)

In casu, the issue of the identity of the assailant does not arise. The issue is

whether the appellant fondled the complainant’s breasts. There is no room for

doubting the complainant’s evidence in this regard. Her explanation of what the

appellant did constitutes an assault of an indecent nature. The trial magistrate’s

assessment in this regard cannot be faulted. The finding of the trial court in the

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circumstances does not defy reason and common sense. The conviction is

unassailable and the appeal against conviction has to be dismissed.

The basis of the appeal against sentence is that it is manifestly excessive so as

to induce a sense of shock. In assessing the appropriateness of a sentence an appeal

court should be guided by what GUBBAY CJ stated in Ramushu and ors v State SC-

25-93 at page 5 of his cyclostyled judgment –

“But in every appeal against sentence, save where it is vitiated by irregularity or misdirection, the guiding principle to be applied is that sentence is pre-eminently a matter for the discretion of the trial court, and that an appellate court should be careful not to erode such discretion. The propriety of a sentence, attacked on the general ground of being excessive, should only be altered if it is viewed as being disturbingly inappropriate” – see also Msindo and Ors v State HH-25-02.

So far as sentence is concerned, the appellant is a first offender. In Manyemba

v S AD 82-79 the accused was found guilty of indecently assaulting a young girl aged

sixteen and a half years. He was sentenced to a fine of $75 or in default of payment

25 days imprisonment plus an additional custodial sentence of three months

suspended on condition of good behaviour. The appellant in that case indecently

assaulted the young complainant by placing an arm about her waist, seizing her wrist

and placing a hand upon her breasts. (emphasis is mine) At page 6 of the cyclostyled

judgment DAVIES JA stated –

“… but it seems to me that although the nature of the assault did not indicate serious indecency, it nevertheless merited at least the punishment imposed by the magistrate … Quite obviously there is a need for a deterrent sentence in this regard. Obviously imprisonment as such was not called for and, of course, an effective period of imprisonment was not imposed upon the appellant.”

In Ndhlovu v State AD 88-79 the accused was convicted of indecent assault

committed in the course of searching her. The complainant was a juvenile. He

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searched her because he believed, apparently genuinely, that she might have been

responsible for stealing a sum of money from his house. On appeal, a sentence of 18

months imprisonment (with 8 months suspended on condition of good behaviour) was

set aside and substituted with one of $50 or, in default of payment, one month

imprisonment. In that case the indecent act comprised of touching her breasts and

interfering with her clothing in the course of the search. In State v Phiri GB 27/77 the

accused was proved to have felled an 11 year old girl. He lain on top of her and

touched her breasts. He was sentenced to 18 months imprisonment, of which nine

months was suspended on condition of good behaviour. The child was frightened by

accused’s actions. On review, the sentence was reduced to nine months suspended on

condition of good behaviour. Mr Nyoni, contends that the appellant’s moral

blameworthiness was not judiciously assessed. Mrs Cheda, for the respondent

concedes that sentence imposed is manifestly excessive. She, however, contends that

a reduction of the custodial sentence from 24 months to 12 months imprisonment with

part thereof suspended will meet the justice of the case. As both parties agree that

there was an improper exercise of sentence discretion this court is at large as far as

sentence is concerned. Mr Nyoni contends that a non custodial sentence is called for.

He submits that the option of a fine or community service should, at least, be

considered. I agree that our superior courts have over the years emphasised that

imprisonment should be imposed as a last resort on first offenders - S v Kashiri HH-

174-94 and S v Gumbo 1995 (1) ZLR 163. This reflects a paradigm shift. First, over

the years our courts have emphasised that a sentence of imprisonment is a severe and

rigorous form of punishment, which should be imposed only as a last resort and where

no other form of punishment will do. Second, there have been concerted efforts to

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shift from the more traditional methods dealing with crime and the offender towards a

more restorative form of justice that takes into account the interests of both society

and the victim. This is a holistic approach to sentencing in that it punishes the

offender, causes the offender to pay reparation and integrates the offender into the

society – Ndlovu v S 1994 (1) ZLR 290 and S v Sithole HH-50-95.

In this case the aggravating factor is that the complainant was aged ten years at

the time. If the matter had been properly prosecuted and it was proven that in

addition to fondling the breasts, the appellant lifted her skirt and touched her legs I

would have no hesitation in imposing a custodial sentence. Another factor is that the

appellant was in loco parentis. Generally, the courts deal severely with fiendish

perpetrators of horrible crimes on children. It is one of the functions of the criminal

law to give expression to the collective feeling of revulsion toward certain acts such

as indecent assault of children. But an enlightened society will recognise the

futility of severely punishing unavoidable retrogression in human dignity. But it is

vain to preach to any society that it must suppress its feelings. The law, if wisely

administered, should dramatise its punishment. It is a fact that all men live more or

less in their imagination, and any imaginative realisation that one will be hissed off

the social stage to suffer pain is bound to act as a strong deterrent. In this connection,

it is well to repeat the frequently made but still just, observation that not only the

severity but the certainty of punishment is a factor in the case – see Reason and

Law by Morris R Cohen at pages 59 and 60. If civilisation, however, means

rationality in the elimination of needless cruelity, then our methods of punishment

must certainly undergo profound changes even though they cannot cease to be

punishments. Is mere touching of breasts a serious act of indecency?

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Does it warrant imprisonment?

I believe factors such as the age of the complainant, acts or statements

accompanying the touching of the breasts, the reaction of the complainant, the

frequency of the touches etc should be taken into account in determining the

seriousness of the conduct. In this case after touching the complainant’s breasts the

appellant gave her $20, presumably to silence her or to buy in her approval. This is a

bad thing for an adult to do. Appellant was teaching, or least encouraging this 10 year

old some form of prostitution. This conduct would introduce children to prostitution

i.e. men can satiete their lust with your body in exchange of money. This is a

perception that children can have of this conduct. In this case it was also bad for him

to send her to shebeens to buy him beer.

In light of the above, I feel that a fine coupled with a suspended custodial

sentence will meet the justice of the case. I accordingly, confirm the conviction and

set aside the sentence imposed by the court a quo and substitute in its place the

following:

“A fine of $10 000 or default of payment 5 months imprisonment. In addition 12 months imprisonment wholly suspended for 5 years on condition the accused in that period does not commit an offence of indecent assault or of a sexual nature and for which he is convicted and sentenced to a fine in excess of $500.”

Cheda J ………………………. I agree

James, Moyo-Majwabu & Nyoni appellant’s legal practitioners

Criminal Division of the Attorney-General’s Office respondent’s legal practitioners