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

 

CHARLES NDONDO

 

versus

 

THE STATE

 

IN THE HIGH COURT OF ZIMBABWE

CHEDA J

BULAWAYO 1 JULY & 10 OCTOBER 2002

 

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.

 

 

 

 

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            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

 

 

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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.

 

 

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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).

 

 

 

 

 

 

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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.

 

 

 

 

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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

 

upheld.

 

 

 

                        Chiweshe J ……………. I agree