Artwell Dube v The State

### Preamble
1
HB 178.19
HCA 30/18
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ARTWELL DUBE

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 21 NOVEMBER 2019

Criminal Appeal

B R Sengweni for the Appellant

K Ndlovu for the State

MAKONESE J:	The appellant appeared before a Regional Magistrate at Tredgold, Bulawayo, facing 2 counts of rape in contravention of Section 65 (1) of the Criminal Law Codification and Reform Act (Chapter 9:23) on the 27th February 2018.  It was alleged by the state that on unspecified dates, but on two separate occasions during the month of May 2017, the appellant allegedly raped the complainant a 13 year old juvenile at knife point.  Appellant pleaded guilty to the charge.  After a full trial appellant was convicted on both counts and sentenced to an effective prison term of 7 years.  Appellant filed and lodged with this court a Notice of Appeal against both conviction and sentence.

The state has conceded that the conviction is unsafe and requested that the matter be dealt with in terms of Section 35 of the High Court Act (Chapter 7:06).

In terms of that provision it is provided as follows:

“When an appeal in a criminal case, other than an appeal against sentence only, has been noted to the High Court, the Prosecutor-General may, at any time before the hearing of the appeal, give notice to the Registrar of the High Court that he does not for reasons stated by him support the conviction, whereupon a judge of the High Court in chambers may allow the appeal and quash the conviction without hearing argument from the parties or their legal representations and without appearing before him.”

Factual Background

On the first count, the complainant averred that she was sent by her aunt Sitshengisiwe Ndlovu who is in a relationship with the appellant, as both have a child together, to ask for vinegar from the appellant.  Complainant testified that she had found the appellant at his place of residence who told her to go and get the vinegar from the house.  Complainant then entered the house.  On her way out, she turned to find the appellant standing behind her.  Appellant locked the door, took a knife from a cupboard and led complainant to his bedroom.  Appellant lifted her skirt, tore her pair of panties and then forcibly had sexual intercourse with her.  After the sexual act, the accused sat beside the complainant on the bed for “some time.”  At that point Phindile (complainant’s friend) came to the appellant’s house, stood by the gate and called out for the complainant.  Complainant did not answer back.  She averred that appellant closed her mouth.  Thereafter, her aunt Sitshengisiwe came to look for the complainant.  Appellant gave her the keys to open the door.  Sitshengisiwe then ordered her to go home and finish cleaning.

On the second count, the complainant testified that during the same month of May 2017, the appellant found her alone at their home.  Appellant had come to visit her aunt Sitshengiswe who had gone out at the time.  When appellant learnt that the complainant was alone, he got into the house, produced an okapi knife and threatened the complainant with death.  Appellant dragged the complainant to her aunt’s bedroom, fell her onto the bed, tore her T-shirt and panties and had sexual intercourse with her without her consent.  The matter came to light when complainant developed vaginal warts.  When complainant’s mother confronted her about the condition and whether she had been sexually active complainant was evasive and denied having sex with anyone.  It was only after complainant had been assaulted that she named the appellant as the person who had abused her.  On why she had not told Phindile about the first incident, complainant indicated that she did not trust Phindile.  She feared that Phindile would go around telling everyone about the incident.  The fact that complainant made every effort to ensure that the sexual intercourse was not known betrays her insincerity and may point to the fact that she may have had an affair with the appellant.  On the first occasion it is rather odd that her aunt, Sitshengisiwe opened the door for the complainant to leave the bedroom.  Before complainant left, Sitshengisiwe warned her to go and do her cleaning.  The complainant chose to deny the act of sexual intercourse when her mother asked her.  She chose to conceal the identity of the man who had ravashed her.  Her behavior is not consistent with the allegation that the rape itself was violent and that she had been threatened at knife point.

The Regional Magistrate was satisfied that the danger of false incrimination had been eliminated.  He reasoned that complainant’s mother had admitted assaulting the complainant but had not forced the child to say the name of the appellant.

It is trite that in sexual offences the court must always strive to look for a safeguard or corroborative evidence outside the evidence of the complainant.  It is essential for the trial court to eliminate the risk of false incrimination by cautiously assessing the evidence of the complainant.  It can never be said that a report obtained by means of a physical assault of the victim has been made voluntarily.  In this matter the complainant’s mother only discovered the sexual abuse when she examined the child’s genitals.  The complainant had every opportunity to report the matter and name his victim but chose to conceal his identity.  Complainant’s mother did not note make a timeous report to the police herself.  She first sought to question the appellant.  She was later advised by neighbours to simply make a report to the police.

It is my view that the risk of false incrimination was not so remote as to be illusory, see: State v Makanganga 1996 (2) ZLR 231 and State v Banana 2000 (1) ZLR 607 (S) .  One aspect of the case that is a cause for concern is that there was so much mention of the complainant’s clothing items in respect of both counts.  The appellant asked several questions relating to these torn clothes and yet the court paid no regard to this vital piece of evidence.  The exhibits would have lent credence to complainant’s claims that the appellant tore her under-garments using a knife.  Items of clothing, when mentioned in a sexual abuse case may provide critical and vital evidence, especially where such exhibits are used to provide some corroboration of the complainant’s version.

The concession made by the state was properly taken.  The case against the appellant was not proved beyond reasonable doubt.  The conviction and sentence cannot be allowed to stand

In the result, the following order is made:

1.	The appeal is allowed.

2.	The conviction and sentence is hereby set aside.

Mabhikwa J agrees…………………..

Sengweni Legal Practice, appellant’s legal practitioners

The National Prosecuting Authority, state’s legal practitioners