MAUYANEI MANDEBVU

versus

THE STATE

HIGH COURT OF ZIMBABWE

OMERJEE AND MUSAKWA JJ

HARARE, 17 and 19 July 2011

Criminal Appeal

Mr. Koto, for appellant

F. I.  Nyahunzvi, for respondent

MUSAKWA J: The appellant was convicted of two counts of contravening s 65 (1) of the Criminal Law (Codification and Reform) Act [Cap 9:23]. He was sentenced to sixteen years imprisonment of which four years imprisonment were suspended on condition of good behaviour. He now appeals against conviction and sentence.

The charges alleged that at an unknown date during 2005 and at number 23 Creswick Road, Eastlea, Harare the appellant unlawfully had sexual intercourse with J.  A girl then aged nine years knowing that she had not consented or realizing that there was a real possibility that the complainant might not have consented to it.

 The complainant and the appellant are related as the appellant is a young brother of the complainant’s father. At the material time the complainant was staying with her aunt who happens to be a sister of the appellant and the complainant’s sister.

In November 2006 the complainant told her former teacher that she had been sexually abused. She did not disclose the name of the perpetrator. The teacher in turn reported the matter to Police leading to the appellant’s arrest.

The complainant testified that the first incident took place in the afternoon in the appellant’s bedroom after she had returned from school. She had requested the appellant to assist her with homework. The appellant first asked her to bring him some water. He then drank the water whilst holding the complainant’s hand. Thereafter he threw her on the bed, covered her face with a pillow and raped her. The complainant stated that no one else was present at home.

The second incident took place in the morning after the aunt had gone to work. Whilst the complainant was still in bed the appellant removed her panties and licked her vagina. It was not clarified in relation to the first incident this took place.

Although the complainant told her teacher and the investigating officer that she was raped on three occasions no evidence was led in respect of the third count which in any event had not been preferred against appellant. The only reliable evidence adduced against the appellant relates to the afternoon rape incident and the morning incident of indecent assault.

 The appellant admitted that he used to assist the complainant with her homework but denied the charges. He claimed to have been at work when it was said he raped the complainant. He also claimed that he could not have raped the complainant because the maid and his cousin were always at home.

The thrust of Mr Koto’s submissions was that the complainant was not a credible witness. He singled out the delay in making a report against the appellant. He also cited inconsistencies in the number of times the complainant claimed to have been raped. He also sought to suggest that the complainant’s mother had sought to falsely incriminate the appellant. This attack on the complainant’s mother was in the context of the information supplied to the doctor who examined the complainant whose report noted that the rape and medical examination fell between eight and thirty days.

In our view the issue for determination is whether the trial court was correct in convicting the appellant on the evidence of a single witness. In S v Banana 2000 (1) ZLR 607 (SC) GUBBAY CJ had this to say regarding single witness evidence-

“It is, of course, permissible in terms of s 269 of the Criminal Procedure and Evidence Act [Chapter 9:07] for a court to convict a person on the single  

evidence of a competent and credible witness. The test formulated by DE VILLIERS JP in R v Mokoena 1932  A  OPD 79 at 80 was that the evidence of such a single witness must be found to be "clear and satisfactory in every material respect".

In The South African Law of Evidence 4 ed at 573 the celebrated authors, Hoffmann and Zeffertt, rightly point out that Mokoena's case concerned the situation of a single witnessclaiming to have identified the accused by the light of a pocket torch as he ran past in the dark. Accordingly, they contend that the remarks of DE VILLIERS JP should be related to the context in which they were made.

Certainly, in purporting to lay down a general rule the dictum of the learned Judge President has been criticised as unhelpful and tending to obscure the ultimate purpose of the court's inquiry, which is whether the guilt of the  C  accused has been proved beyond a reasonable doubt. See R v Abdoorham 1954 (3) SA 163 (N) at 165; R v Mokoena 1956 (3) SA 81 (A) at 85. In S v Sauls & Ors 1981 (3) SA 172 (A) at 180E-G, DIEMONT JA said:

"There is no rule of thumb or formula to apply when it comes to a consideration of the credibility of the single witness.  

The trial judge will weigh his evidence, will consider its merits and demerits and, having done so, will decide whether it is trustworthy and whether, despite the fact that there are shortcomings or defects or contradictions in the testimony, he is satisfied that the truth has been told ... It has been said more than once that the exercise of caution must not be allowed to displace the exercise of common sense."  

In Zimbabwe, much the same approach has been adopted. In S v Nyati 1977 (2) RLR 315 (A) at 318E-G, Lewis JP warned that the test in R v Mokoena supra is not to be regarded as an inflexible rule of thumb. There is no magic formula which determines when a conviction is warranted upon the testimony of a single witness. His evidence must beapproached with caution and the merits thereof weighed against any factors which militate against its credibility. In essence, a commonsense 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 was in some respects unsatisfactory. See also S v Nathoo Supermarket (Pvt) Ltd 1987 (2) ZLR 136 (S) at 138D-F.   

Where the evidence of the single witness is corroborated in any way which tends to indicate that the whole story was not concocted, the caution enjoined may be overcome and acceptance facilitated. But corroboration is not essential. Any other feature which increases the confidence of the court in the reliability of the single witness may also overcome the caution.”

The trial court acknowledged that the complainant’s story was difficult to tell. By this is meant that she was reticent. This is understandable taking into account her age. In addition, her former teacher described her as quiet. The trial prosecutor appeared not to have been patient enough or skill in leading her evidence in chief in order to lead all the relevant evidence. This is particularly the case in relation to the sequence of events and the commission of the second count. What might also have compounded the situation was the fact that victim friendly facilities were not used for this trial.

There appears to be sufficient corroborative evidence of the complainant notwithstanding that her mother and aunt denied that she reported the rape to them. The complainant’s former teacher confirmed receiving a report from her. She in turn reported the matter to Police.

The medical examination conducted by Doctor Choto confirmed that the complainant was raped. There is nothing to suggest that the doctor was incompetent or made incorrect findings. The criticism leveled against his notation that the rape occurred between eight and thirty days before the examination cannot be sustained. His explanation was that he got this information from the complainant’s guardian. He further explained that the injuries to the complainant were neither fresh nor healed.

In addition there is nothing to suggest that the complainant had any ill motive to incriminate the appellant. Her report, though made late was voluntary. Her explanation for the delay is plausible. Apart from the appellant’s claim, there was no other evidence to confirm that there was never a time he was alone with the complainant.

It is clear though that the second count was not proved beyond a reasonable doubt. However, in light of the evidence of the complainant it was incumbent upon the trial court to convict the appellant of the lesser charge of contravening s 67 (1) (a) (i) of the Code.

As regards sentence in light of the lesser charge in respect of the second count, the sentence imposed by the trial court would have to be interfered with. This is because the maximum punishment under that provision is imprisonment not exceeding two years.

In the result, it is ordered as follows-

1. The appeal against conviction in respect of the first count is hereby dismissed.
2. The conviction in respect of the second count is set aside and in its place is substituted the following verdict

“Guilty of contravening s 67 (1) (a) (i) of the Criminal Law (Codification and Reform) Act [Cap 9:23].”

1. The sentence imposed by the trial court is set aside and in its place is substituted the following-

“Count One

Eight years imprisonment.

Count Two

One year imprisonment.

Of the total sentence of nine years imprisonment two years imprisonment is suspended for five years on condition during that period the accused is not convicted of any sexual offences as defined in the Criminal Law (Codification and Reform) Act [Cap 9:23] for which he is convicted and sentenced to imprisonment without the option of a fine.”

1. Appellant’s bail is hereby immediately revoked and the Registrar is directed to issue a warrant for his committal to custody.

Omerjee J agrees

Koto & Company, appellant’s legal practitioners

Attorney-General’s Office, respondent’s legal practitioners