Judgment No. HB 82/2004
Case No. HCA 76/02
IN THE HIGH COURT OF ZIMBABWE
CHEDA & NDOU JJ
BULAWAYO 15 SEPTEMBER 2003 & 17 JUNE 2004
Mrs N Moyofor the appellant
Mrs M Moya-Matshangafor the respondent
NDOU J: Sometime in May 1998, at about 1500 hours the complainant, then aged 15 years, was walking along Nketa Drive proceeding to Emganwini in Bulawayo. She came across a man riding a motor cycle in the same direction. She asked him the directions to house number 473 Emganwini since she did not know the place. The motor cyclist offered to assist by showing her the house that she was looking for and they proceeded in the same direction. While on the way the motor cyclist told the complainant that he would pass through his place of residence and change and then accompany her where she was going and they went to his residence. On arrival at his residence, he went into a room and invited the complainant in. While inside he grabbed and threw her on to his bed and raped her once. After satiating his sexual lust, he threatened the complainant with death if she reported the matter to anyone. He thereafter showed the complainant where she was going and she left. From May 1998 to September 2000 she did not report the rape to anyone. She only reported to her boyfriend on 24 September 2000 and consequently the police came into the picture.
All these acts seem to be common cause or beyond dispute. The only issue, in my view, is the identity of the assailant. She said it is the appellant. It is common
cause that the complainant and the appellant were unknown to each other prior the fateful day. The appellant criticised the complainant for not reporting the rape timeously. The complainant gave two reasons for her failure to report from 1998 to 2000. On the one hand she stated that this was occasioned by the fact that her father was sick, and on the other hand she said she did not report because the appellant had threatened to kill her if she did so.
I have grave concern on the conduct of the proceedings by the learned trial Acting Regional Magistrate. After the state outline was read, through the interpreter, to the appellant the record of proceedings shows that the learned trial magistrate merely explained to the unrepresented appellant “Tell us your story”. Thereafter the appellant gave very scant outline of his defence. In such matters trial magistrates are required to explain in a meaningful way the provisions of sections 188 and 189 of the Criminal Procedure and Evidence Act [Chapter 9:07]. That way the accused is placed in a position to proffer an informed outline of his or her case. In casu the appellant was facing a serious offence of rape. Because of their scrutiny powers, Regional Magistrates are expected to lead by example in this regard. We do not expect such mundane and basic errors at Regional Court level. Fortunately, in our Regional Division this is an isolated case.
In his brief judgment the learned Acting Regional Magistrate said –
“After failing to content [sic] reported [to] the police that she had been raped. Police office to whom the report was initially made came to court and confirmed that the complainant approached her at the charge office and made a report of rape. So at the end of the day in determining this matter the court is only faced with the evidence of the complainant and that of the accused person.
What one might want to know is why the complainant might come up with these allegations if nothing happened. Accused person himself could not come up with a reason on the part of the complainant why she would trump up
these allegations. I am at loss to understand why the complainant would go to the police and say that she had not [sic] been raped.”
Our concern with this reasoning is that it casts the onus on accused (appellant) to prove his innocence. We wish to emphasise that the onus to prove a case beyond reasonable doubt lies on the state and not an accused. All the accused needs to do is to put forward a case which is reasonably true – Kapende v S HH-157-02; S v Dube 1997(1) ZLR 225 (S); S v Nziradepatsa 1999(1) ZLR 568(H); Manyika v S HH-215-02; R v Mabole 1968(4) SA 811 (R) and Kombayi v S HB-27-04. The state has to prove all the elements of the crime of rape. Further, the trial court based its finding on evidence that was not adduced during the trial. The proceedings in court a quo were on tapes. The transcription thereof shows that the learned trial magistrate based his judgment on non-existing evidence. In his judgment he says –
“The description of accused person’s house by the complainant, his possessions in the house remain unchallenged on the record prompting the court to believe that it is in fact how the house looks like. So this leaves us with no doubt that at one time or another complainant was in the accused’s house. Now that there are these allegations of rape where she is saying she was dragged into complainant’s bedroom after being lured by the accused person who lied that he was going to assist her to locate her father’s residence. The only reason or inference to make in the circumstances is that complainant was taken to accused’s house and raped as alleged.”
She indeed described the interior of the house where she was raped and furnishings. She, however, did not go into the appellant’s house with the police. She said – “I only showed them the house I never got in”.
According to the only other state witness, police office Goba, she did not even know the address of her assailant. He referred her to the Investigating Officer at
Nkulumane to take her to point out the house. Goba did not go to the house on this occasion. On some other day he saw the house. In a nutshell she was not taken into
the house to identify the features that the trial court is relying upon. There is no other evidence that the features she gave match those found inside the house.
There is no evidence of how the house looked like when the police went there. The appellant disputed the features given by the complainant. There was no comparison between what the complainant told the police and what the house and its effects looked like when the police went there. In the absence of such comparison her evidence on the rooms and furniture lack the kind of quality entitling the court a quo to draw the inference that it did.
In the end as rightly pointed out by the learned magistrate, we have single witness evidence scenario. The single witness gave testimony that the court a quo believed. This court cannot lightly interfere with the trial court’s assessment on credibility – Mbanda v S SC-184-90; Soko v S SC-118-92 and S v Mlambo 1994(2) ZLR 410 (S). In my view, however, the assessment made by the court a quo of the credibility of the complainant defies logic. It should be borne in mind that it is the duty of an appellate court to overrule a conclusion of a court of first instance on a question of fact when, notwithstanding the disadvantages from which it suffers as compared with the court of first instance, it is convinced that the conclusion to which the latter court has come is wrong – Van Aswegen v De Clercq 1960(4) SA 875 (A) and Blysaag (Edms) Bpk en Andere v Theron 1978(2) SA 624 (A).
The complaint was made to be a witness who was not called to testify. It was made several months later i.e. over a year. This long delay does not necessarily mean that the complaint is inadmissible. A delay of a day or so in making the complaint
may in some instances be considered too long, whereas in others a relatively substantial delay might be considered reasonable – it all depends on the circumstances of the case – S v Makanyanga 1996(2) ZLR 231(H).
In this case the complainant explained that she did nor report when she got to father’s house because she found her father who was ill and she found it difficult to make a report to him. Her father eventually passed away. She stays with her grandmother. She did not explain why she chose to complain to her boyfriend some two years later. At that time she had missed her menstrual period. The circumstances under which the complaint was made were not canvassed.
It is trite that the court may convict a person on the single evidence of a competent and single witness. This is in terms of section 269 of the Criminal Procedure and Evidence Act, supra. See also R v Mokoena 1932 OPD 79 where it was held that the evidence of such a single witness must be found to be clear and satisfactory in every material respect. See also R v Nyathi 1977(2) RLR 315 where it was held that-
“… in essence a common sense 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 is unsatisfactory.”
The question of the identification of appellant is not satisfactory. It seems the motor cycle and the interior of his house played a major role in the identification. The red colour is fairly common in motorcycles. No evidence of the interior of the appellant’s house was led. The fact that the appellant’s house was two room does not really take the matter further as most houses in the area share the same plan, courtesy of the municipality authority which constructs such township houses.
Overall, even without tempering with the trial court’s finding on credibility there is a possibility of a genuine mistaken identity on account of the passage of time.
There are unsatisfactory features in the evidence of the state. While is it trite that the cautionary rule of practice in sexual assault cases is not warranted, a court must nevertheless consider the nature and the circumstances of a particular offence and whether the accused’s guilt proved beyond a reasonable doubt – S v Banana 2000(1) ZLR 607 (S). In casu, there is a doubt on the question of identity.
Further the court did not give the appellant person a fair opportunity to prove his case. The appellant wanted to call his wife with whom he stayed at the material time. He was asked-
“Q - Where, where was she?
A - We were staying together in 1998
Q - What is she going to tell the court?
A - I would want her to give evidence that I was staying with her.
Q - So what? Has it even been an issue that you were staying with someone …?”
The question of the relevance of his witness testimony should have been properly canvassed. If not, this may result in an unfair trial especially in cases where one dealing with an unrepresented accused.
From the foregoing reasons, the trial magistrate ought to have held, despite his beliefs, that there is a reasonable possibility that the appellant was mistakenly identified and that the defence might be true and ought to have given the appellant (accused) the benefit of the doubt. He failed to do so and accordingly it falls on me to allow the appeal and quash the conviction and set aside the sentence, as I do.
Cheda J ……………………….. I agree
Moyo-Hara & Partnersappellant’s legal practitioners
Criminal Division – Attorney General,respondent’s legal practitioners