Court name
Bulawayo High Court
Case number
CRB REG 692 of 1997
Case name
S v Ndondo
Law report citations
Media neutral citation
[2002] ZWBHC 114

                                                                                    Judgment No. HB 114/2002                                                                                       Case No. HCA 39/2002

                                                                                    CRB REG 692/97












M Khuphefor the appellant

Mrs I Nyonifor the state


Criminal Appeal



            CHEDA J:     The appellant was charged with one count of indecent assault


and another of rape for which he was convicted and sentenced to one year


imprisonment with labour on the indecent assault offence and eight years


imprisonment with labour on the rape offence with the 2 sentences ordered to run


concurrently of which sentence 2 years was suspended for 5 years on condition of


good behaviour.  The appellant now appeals against both conviction and sentence of


the two counts.


            The brief facts of the case as presented by the state are contained in the state


outline which forms part of this record of appeal.  The brief facts are that the


appellant a member of the police force was at the relevant period stationed at Siabuwa


Police Post in Binga.  On 16 February 1997 he was requested by Chief Inspector


Mpofu to give his girlfriend, the complainant, a lift to Kalangwizi Primary School. 


Appellant drove to Siabuwa Police post, did not proceed to the complainant’s school


but instead offered her a place to sleep in his house, in the kitchen. 




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When complainant was asleep appellant entered the kitchen, grabbed her by the waist,


touched her private parts and kissed her.


            The complainant protested and in turn bit appellant’s tongue.  She then ran


into the bedroom with appellant in pursuit.  Complainant went back to the kitchen,


appellant continued to pursue her and she eventually went outside whereupon


appellant followed her, grabbed her by the hand and pulled her back into his bedroom


where he forcibly had sexual intercourse with her without her consent.  A report was


made on or about 2 March 1997 resulting in the appellant being arrested. 


            The state led evidence from the complainant.  The gist of her evidence is that


on the day in question, appellant gave her a lift to her school.  They did not proceed to


school as appellant advised her that he had received a report to the effect that the


bridge they were supposed to cross had been swept away.  Appellant took her to his


house at the police station wherein she was offered wine which she drank and a meal


was prepared by her.  His friends came to the house and she was introduced as


appellant’s girlfriend, but she did not object to the introduction made in that manner. 


She was offered a bed in the kitchen.  When they were preparing a meal appellant


fondled her breasts at one stage.  It was her evidence that while she was preparing to


retire to bed appellant came into the kitchen with a towel wrapped around his waist.  


A scuffle ensued as he tried to kiss her and this resulted in her biting his tongue.  She


ran into the bedroom and locked herself inside.  He, however, followed her into the


bedroom. She ran back to the kitchen and eventually outside the house and back


again.  Appellant eventually had sexual intercourse with her against her will.





                                                                                                                        HB 114/02



            She was taken to her school the following day.  At the school she told one


Losie Dhinari that she did not like the way appellant had treated her namely, that he


was making passes at her and that he had fondled her private parts.   Complainant


then wrote a letter to her fiance Chief Inspector Mpofu, wherein she was asking him


to arrange transport for her for the following Friday and that appellant was an idiot


whom she did not want to see again, but, she did not tell him about the rape and let


alone the alleged fondling.  She eventually saw Chief Insepctor Mpofu but again did


not report the rape.  Complainant also saw her sister but did not report the rape until at


a later stage when she was persuaded to disclose what she had been complaining


about regarding the appellant.  When her sister asked her about her complaint against


appellant she initially complained that appellant had fondled her breasts.  She said she


had not told her the whole truth as she felt embarrassed.  When asked what  she


had said to her sister in relation to the appellant she said “I said he did it”.


The state then called Loise Dhinari.  Her evidence was that she is a teacher at


the same school with complainant.  On the morning following this incident


complainant was dropped off by the appellant.  Complainant told her that her journey


had not been good because appellant had made advances towards her which she


turned down.  She did not tell her that she was raped. 


Anna Burombo, complainant’s sister also gave evidence.  She stated that


complainant told her that she did not like what appellant had done to her.  When


asked what it was complainant told her that she had been given a lift by the appellant,


they got to a flooded river which they could not cross.  She then spent a night at


appellant’s house and that he fondled her breasts.  It was her boyfriend Mpofu who



                                                                                                                        HB 114/02



took her, the witness and Loise Dhinari to the police station to make a report about the


rape.  At this juncture, this witness was not aware that complainant was going to make


a report about  rape.


Chief Inspector Mpofu also gave evidence which is largely common cause. 


He asked appellant to give complainant a lift to school which he did.  He received a


letter from her during the course of that week, wherein, she was asking for transport


for Friday and that she did not like what appellant had done to her.  She did not tell


him that he had raped her or fondled her breasts.  They eventually met on a Friday and


again she did not mention “rape” all she said was that appellant had made a pass at


her.  She had mentioned to him that she had not been feeling well due to a bout of


malaria.  She only told him that he had attempted to kiss her and manhandled her


later.  He then advised her to go and make a report to the police as what he did


amounted to “attempted rape”.  He then drove her to the police station whereupon she


made a report about the alleged rape.  This was a Sunday a week after the alleged rape


took place.


The last witness was Enerst Zulu, a member of the Zimbabwe Republic Police.


Nothing of significance turns on his evidence as it related to the questioning of the


appellant about his trip to Harare without authority.  The state then closed its case.


The appellant gave evidence.  The good part of his evidence is common cause. 


His version of events is that he started cooking which complainant took over


eventually as he was entertaining his friends.  He denied ever offering her wine,


making passes at her or touching her, let alone having sexual intercourse with her. 


Appellant maintained his story through out the cross-examination by the prosecutor.



                                                                                                HB 114/02     



There are a couple of factors which have to be taken into account in assessing


the evidence of the state and that of the defence.  The complainant:-


  1. is a mature woman who had “a fiance” as she put it
  2. was offered accommodation by a stranger who is her fiance’s junior in the police force.
  3. was offered wine according to her evidence (which appellant denies).

(4)        told appellant that she only drank in the presence of her fiance but, however, broke that rule and partook the wine.

(5)        was introduced by appellant to his friends as “his girlfriend” but she did not object.

(6)        was kissed and had blouse unbuttoned by appellant

(7)        ran into his bedroom and not outside the house

  1. stated that appellant caught up with her and she ran out of the house and came back again into the house
  2. did she not scream when she was aware of the presence of other police officers at the police base

(10)      stated that she was eventually raped during the night

(11)      she did not report him at the police station where she spent the night or at least contact her fiance by phone or radio the following morning

(12)      agreed to be taken to her school by him

(13)      advised her roommate that she did not like what appellant had done to her.  When asked what it was she talked of him fondling her private parts, she did not tell her about the rape.

(14)      wrote a letter to her fiance again she did not tell him about the rape but chose to refer to him as an idiot whom she did not want to see again.

(15)      saw her fiance after five days for a weekend, again she said nothing until he prodded her on a Sunday, seven days after the alleged rape.

(16)      did not even tell her sister exactly what happened but chose to say she did not like the appellant.


All these people heard about her alleged rape after she had been persuaded,


coerced or asked to make a report to the police.  Her explanation for this type of


conduct is not convincing as she stated that she could not tell Ms Dhinari because she


was not used to her, the question then is why did she not make a clean breast to her


sister and/or boyfriend (Mr Mpofu).







                                                                                                HB 114/02



The appellant told the court a quo that he was suffering from malaria and


therefore was very weak to an extent that he would not have ventured into a sexual


act.  He denied offering her wine.  His explanation for complainant’s conduct is that


she was probably upset that he did not take her to the school the same day.           


It is well known that women become upset by man who attempt to sexually


know them without their consent, it is therefore worse for them, when a stranger


chases them around during the night and finally rapes them.  This, in my view, is


grossly traumatic for them.  If the complainant went through such an ordeal, one


wonders why she continued to be economic with the truth up to a point when her


fiance prodded her that much.  It is trite law that for the courts to believe a


complainant’s evidence in sexual matters, a report should be made at the first


available opportunity.  In this particular case this opportunity availed itself to the


complainant on many occasions but she deliberately chose not to use it.  This type of


conduct indicates a great measure of reluctance and as such in my view casts doubt as


to her credibility as a witness.  By failing to report in time she deprived the court of


weighing her evidence which could have been given due weight in her favour


possibly by the production of a medical report which normaly contains details of signs


associated with rape cases.  I find that the complainant was not a convincing witness


about rape having taken place.


Her evidence was such that the trial court should not have accepted it in order


to convict the appellant.  In light of  her unconvincing evidence it is doubtful if sexual


intercourse took place and that if it did, it occurred without consent.





                                                                                                HB 114/02     



The court should have accepted appellant’s evidence which was easy flowing


and was without contradictions.  In fact the state completely failed to prove its case


beyond reasonable doubt that appellant raped the complaint.  As the complainant’s


evidence should not have been believed it also follows that she should equally not


have been believed when she told the court that appellant indecently assaulted her.


The conviction and sentence imposed in respect of each count by the court a


quoare hereby set aside.


The appeal against conviction and sentence on both counts is accordingly






                        Chiweshe J ……………. I agree