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Judgment NO. HB 26/15

                                                                                   Case No. HCA 219/13

                                                                                Xref No. CRB REG 29/13

JONATHAN NGWENYA

versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

MOYO AND TAKUVA JJ

BULAWAYO 6 OCTOBER 2014 AND 19 FEBRUARY 2015

Criminal Appeal

Mr L. Mpofu for the appellant

Mr T. Hove for the respondent

MOYO J:       The appellant in this matter was convicted of indecent assault and aggravated indecent assault, that is contravening section 66 and 67 of the Criminal Law Codification and Reform Act [Chapter 9:23].  He was sentenced to 6 months on the charge of indecent assault and 10 years on the charge of aggravated indecent assault.  Four years of the sentence was suspended on the usual conditions leaving him with 6 years and 6 months effective.

Dissatisfied with both conviction and sentence he then approached this court.  The allegations against him are that sometime during the month of August 2012, the appellant firstly on 8 August 2012, raised the complainant’s clothes exposing her underwear and that he said that he wanted to see how grown she was.  The complainant had allegedly visited her aunt (the appellant’s wife) in Plumtree when the said assaults took place.  The complainant was ordinarily resident in Bulawayo with her parents.  The complainant’s aunt is a sister to the complainant’s mother.  The complainant went to visit her aunt with her grandmother (who is the mother to both complainant’s mother and her aunt).  The allegations on the charge of aggravated indecent assault are that the appellant, inserted his finger into the complainant’s private parts in the kitchen while complainant prepared tea for the appellant.  This, it is alleged was on the following day after the initial incident of indecent assault.  It is alleged that the assaults occurred on 8 and 9 August 2012.

The material points in the complainant’s evidence are as follows as per the court record:

Q;        May you tell the court the events you allege he was abusing you  

A:        We were in the kitchen with a maid on 8 August

Q:        Who were you with

A:        I was with Concilia and my sister’s child

--- On 9 August I was told to prepare tea for my uncle.  I refused.  One of my sisters told me to go.  I then went.  I prepared food.  He kept on lifting up my clothes and inserting his finger in my tobacco.”

“---  He fondled my breasts and my buttocks and he told me it was between ourselves and said he wanted to see if I was grown up.”

Q:        How many times did accused fondle your breasts?

A:        Several times.

Q:        How did it come out that accused was abusing you

A:        Concilia and myself told our grandmother.”

            It was the complainant’s evidence that the assaults occurred in the presence of Concilia the maid, Immaculate, and accused.  It was also her evidence that Concilia and herself told the grandmother about the assaults.  It was also the complainant’s evidence that the other children together with the maid were also indecently assaulted by the appellant.

            The difficulty with this case is that the maid Concilia Moyo, disputed that assaults ever took place as alleged by the complainant, that she was never assaulted herself and she never observed the appellant indecently assaulting the complainant.  It was also the maid’s case that infact the appellant stays in and runs a shop in Dombodema, and that at the material time he only came once and not twice as alleged by the complainant.  That when he came he spent about an hour or 1 ½ hours as he had come for orders for his shop and he then went back.  Immaculate Ngwenya also disputed the evidence of the complainant.  Even where the complainant’s mother says Immaculate called her and she asked to speak to the complainant who then started crying on the phone, Immaculate disputes this, she says that never happened.  Concilia Moyo also disputed that complainant ever spoke to her mother on the phone whilst crying.  The grandmother was also called and she denied ever being told by the children about any assault perpetrated by appellant on the complainant.

            It could be a question of collusion amongst the defence witness but that still has not been proven on the record.

            The complainant’s mother’s conduct did not assist the case either, she made a report to the police the day following the one which the complainant had told her about the alleged assaults, but told them not to open a docket until after 3 months.  She also told the court that she never asked the grandmother about the allegations made by the complainant.  The complainant’s mother also says;

“I opened the docket after 3 months, I had given accused and his family time to come to us so that we sit down and talk about the matter.”

            This statement creates a problem in that it gives the impression that complainant’s mother did not really want to open a docket but she wanted accused and his family to sit down with her and talk about the matter.  What was there to talk about?  If the child had been abused by accused, a report made to the police, what else would be there to talk about save for that the law should then have been allowed to take its course?  She only pursued the matter when the “talk” she had wanted had not materialized.  What do you talk about after a child has been abused?  There is nothing to talk about except to report the matter and let the police do their work.  The trial magistrate based his findings of guilt in this matter on the fact that all the family members stated that their relationship was good and therefore it was the court’s finding that there was no reason for fabrication of the story against the appellant.  He found that all the other witnesses who were allegedly present or were also alleged to have been abused by the appellant were in fact being looked after by him so they could have decided to protect him or forebear the abuse they suffered at his hands.

            It is our considered view, that looking at the complainant’s mother’s behavior in dealing with the complaint, that is her holding of the matter in abeyance for 3 months while she sought to “talk” with the appellant’s family.  Also, the fact that she did not discuss the issue with her mother who was allegedly informed by the complainant about the alleged assault.  If you consider that it is common cause that appellant did not spend time in his house where complainant had visited, and that those who were allegedly present at the time the assault took place deny that this is true.  Also if you consider that the complainant told the court that Concilia Moyo was also abused by the appellant but Concilia came to court and disputed all that.  One would be persuaded from the aforementioned instances to find that doubt is cast on the state case by same.  It can not be found in light of the aforegoing that the appellant’s guilt was indeed proven beyond any reasonable doubt.  It is in such cases that the appellant must be given the benefit of the doubt for there is a real danger of sending an innocent man to prison on the aforegoing facts.  This is a case in our view wherein the accused must be given the benefit of the doubt.  Refer to S v Makanyanga 1996 (2) ZLR 231.

            We accordingly find that the state failed in this case to prove the appellant’s guilt beyond any reasonable doubt and we accordingly allow the appeal.  The conviction and sentence by the court a quo are accordingly set aside.

R. Ndlovu and Company, appellant’s legal practitioners

National prosecuting Authority, respondent’s legal practitioners

Takuva J agrees…………………………………………….