THE State V Nkosiyabo Prince Khumalo

### Preamble
1
HB 04/21
HCAR 1166/20
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THE STATE

Versus

NKOSIYABO PRINCE KHUMALO

HIGH COURT OF ZIMBABWE

DUBE-BANDA J

BULAWAYO, 14 JANUARY 2021

Criminal Review

DUBE-BANDA J: 	This matter was placed before me on automatic review. The accused person was arraigned before the Regional Court- Western Division, Gwanda. The accused was charged with two counts; count 1 of contravening section 126 of the Criminal Law [Codification and Reform] Act Chapter 9:23, it being alleged that; on the 5th November 2019, at ZRP Filabusi main camp, he unlawfully and intentionally used violence against the complaint and took cash amounting to ZWL$180-00, and a black galaxy A2 core cell phone. In count 2, it is alleged that; on the 5th November 2019, at ZRP Filabusi, main camp, accused, a male adult had unprotected sexually intercourse with the complainant without her consent. Accused person had no legal representation. He pleaded not guilty to both counts. At the conclusion of the trial he was found guilty as charged.  Both counts were taken as one for the purposes of sentence, and he was sentenced to 15 years imprisonment of which 3 years was suspended for 5 years on the usual conditions.

The complaint testified that she resides in Bulawayo, she had gone to Filabusi for commercial sex work. The accused sought her services, she agreed and raised a charge of RTGS150.00. Accused is said to have complained that “it was too much” and he offered RTGS 120.00. It is said the accused later said the money he had was not enough, and he offered to take the complainant to his house and to pay 200 South African Rands. After the club closed the two left, and as they were walking and talking, it is said the accused said his name was Nkosi from Gweru. Complainant testified that the accused asked her, where they put their monies, and she told him that “I come from Bulawayo and that there are elderly people whom we are used to and that is where we put our monies.” They entered the police station. She says the accused indicated that he wanted to sleep with her, and she says her answer was, “I asked how he could feel like that since he had not paid me.” According to her version, the accused became violent, held her by the neck and she fell to the ground.  He removed a knife from his pocket. He then threatened her using a knife and a broken bottle. She says accused robbed her RTGS180.00 and a phone. She says the accused removed a condom from her bra, wore it and had sex with her without her consent. She testified that after the sexual intercourse she screamed and a police officer approached her and she narrated her ordeal.

The state called the evidence of Sodai Musobvu, a police office. She stated that on the fateful day, she was on night duty.  Between 3 and 4 in the morning, she was checking the perimeter fence of the police station. She heard a sharp scream coming from a female person. Complainant screamed when she was close to the police officer. She lit her torch and saw a female person approaching her. This female person was holding a wig, and her trousers or short had soil. This female person, who is the complainant indicated to the police officer that she was raped.

The state led evidence from one Naison Chirata, a member of the Neighbourhood Watch ZRP, Filabusi. He knew the complainant as someone who used to frequent the club. On the fateful day, complainant enquired from this witness whether there was a police officer who had been transferred from Gweru to Filabusi. This witness neither confirmed nor denied that there was such a police officer. She told this witness that accused wanted to go with her to the police camp. This witness told the court that the accused and the complainant were drinking beer together. This witness then left the club. On the following day, this witness met the complainant, and she told this witness that she was robbed and raped the previous night. The accused was arrested some other day, at the same club.

The last witness for the state was one Tichachei Precious Masarira, a member of the Zimbabwe Republic Police, stationed in Filabusi. On the 13 January 2020, at 12:45 he received a phone call from the complainant, who claimed that she had recognised the person who robbed and raped her. This report led to the arrest of the accused. Accused told this witness that he was employed as a game ranger. He was on time off. He was a former soldier. This witness merely repeated what he was told by the complainant.

The accused was the sole witness in support of his defence. He merely incorporated his defence outline as his evidence in chief. In his defence outline, the accused gave a detailed version. He told the trial court the following:

The issue which caused a misunderstanding between the complainant and myself is money. Initially we had discussed that we were going to go together for the whole night. I asked her as to where we were going to since the club was closing. The place at where we were drinking is the same place where she was renting. She removed something from her wallet and it contained something which might have been a cellphone and gave it to her friend. I then asked her as to where we were going to sleep. She then indicated that it was impossible for us to put up at that place because there was someone she was in love with who is a gold panner and is of violent disposition, he might come and axe both of us. I then decided to do as she pleased because it was it was almost dawn. We then left the club and went along the tarred road. Firstly, I decided to take her to our camp at Mbalabala but I then realised that it was going to be problematic. She then indicated that the place at which we were walking was not safe because it was frequented by people who rob others. She then indicated that there was a safe place that she knows. It is opposite the bus stop at Mbalabala. She instructed me to follow her. She got to the police camp. I followed her till we came to the football pitch. That place was full of items like tissues. Some of the items I could not identify. She suggested that we do what we wanted to do at that place in question and we separate.

I asked her if we were not going to be arrested but she responded to say that I just do what we agreed. At the time I was removing my T-shirt which I was wearing which is almost blue in colour. I spread my T-shirt on the ground so that she sleeps on it. She handed me a condom. We then had sexual intercourse. I then gave her RTGS30.00 for the short time service. She refused to accept the money saying she wanted the money we had agreed on before. I asked her to take note of the time. I asked how it would be night service since it was almost day and people had started walking. She refused to take the money, she threw it on me. It hit me on the chest and it fell on the ground. She asked if I had been arrested. I asked why she said it was December the money I had given her was not going to sustain her family.

She insisted I give her what we had agreed on. I asked whether she was doing that because we were in police parameters. The money and the phone she is referring to she gave her friend before we left. She then left me running going to the residential houses of the police camp. At that time it was almost clear. When I heard her talking at the police houses I jumped over the fence and walked to look for lifts destined for Mbalabala. I went back to the same club after a while to attend band of Fraco though I cannot recall the date. I found her at the club but we did not talk to each other. We just looked at each other. There came a friend of hers and stated that she heard that I do not pay the full amount hence they were going to fix me since they are united. At that time I had bid farewell and told my friends that we had to leave. On the 13th of December when there was another band I went to the club. I met her as I was entering the club. It did not take a while before I was apprehended by police officers. Three in uniform and two in plain clothes. I asked what had happened. I never resisted or anything. The uniformed ones were harassing me. One was clapping me. They inquired if I knew the complainant and I confirmed though the name she used at the club is not the same as the one appearing on the state papers. I was then taken into their vehicle and we proceeded to the police camp. I was then detained. That is all.

From a reading of the evidence and judgment of the trial court, it is apparent that the court faced two mutually destructive versions from the complainant and the accused. The approach prescribed for a trial court faced with mutually destructive versions is well known and settled. Where there are two mutually destructive versions, as is the case in this matter, the approach, as stated in Doorewaard and Another v The State (Case no 908/2019) [2020] ZASCA 155 (27 November 2020), is as follows:

Logic dictates that, where there are two conflicting versions or two mutually destructive stories, both cannot be true. Only one can be true. Consequently the other must be false. However, the dictates of logic do not displace the standard of proof required either in a civil or criminal matter. In order to determine the objective truth of the one version and the falsity of the other, it is important to consider not only the credibility of the witnesses, but also the reliability of such witnesses. Evidence that is reliable should be weighed against the evidence that is found to be false and in the process measured against the probabilities. In the final analysis the court must determine whether the State has mustered the requisite threshold – in this case proof beyond reasonable doubt.

The proper approach is to apply one's mind to the merits and the demerits of the state and the defence witnesses and the case's probabilities. Only then can a court justifiably conclude that an accused's guilt was established beyond a reasonable doubt.  A trial court cannot, because it is satisfied with the reliability and the credibility of the state witnesses and, for that reason, reject the evidence of an accused.  That a court has correctly applied its mind in this regard must be apparent in its judgment, indicating amongst other things why it disbelieved some witnesses and accepted the evidence of others.  See: Hamana v S (HC-NLD-CRI-APP-CAL-2020/12) [2020] NAHCNLD 156 (12 November 2020).

It is trite law that in a criminal trial the onus is on the State to prove the commission of the offence beyond reasonable doubt and that there is no onus on an accused person to prove his innocence.  This court is alive to the basic principles to be applied in dealing with the version of an accused. In S v Kuiper 2000 (1) ZLR 113 (S) at 118B-D:- the court said the test to be applied before the court rejects the explanation given by an accused person was set out by GREENBERG J in R v Difford 1937 AD 370. At 373, the learned judge said:-

no onus rests on the accused to convince the court of the truth of any explanation he gives. If he gives an explanation, even if that explanation be improbable, the court is not entitled to convict unless it is satisfied, not only that the explanation is improbable, but that beyond any reasonable doubt it is false. If there is any reasonable possibility of his explanation being true, then he is entitled to his acquittal.

Similarly, in R v M 1946 AD 1023, DAVIS AJA said the following at 1027: “And, I repeat, the court does not have to believe the defence story; still less has it to believe it in all its details; it is sufficient if it thinks that there is a reasonable possibility that it may be substantially true.”

In its judgment, the trial court appreciated that it was faced with two mutually destructive versions. The court then reasoned that it will be assisted by the surrounding circumstances in order to make a decision as to which version was correct.  The trial court then cites as “a surrounding circumstance” that the police officer who was on patrol told the court that she heard a sharp scream, and met the complainant who indicated that she had been raped and who was “seemingly shaken.” In her evidence in chief the police officer, Sodai Musobvu, did not tell the court that the complainant was “seemingly shaken.” In cross examination the witness told the trial court that “she appeared as one who had been crying. She screamed when she was close to me and I heard the scream.” There is no evidence to support a finding that the complainant was “seemingly shaken.”

The trial court made a finding that “the evidence before court points to the accused as a dishonest person. When he met the complainant he indicated that he was a police officer when he was not. When interviewed by the investigating officer he stated that he was a game ranger yet he was not.” The accused gave an explanation as to why he told the investigating officer that he was a game ranger, he said, “according to what we had been told at work you must not disclose that you are a member of the Zimbabwe National Army.” This explanation was not shown to be false beyond a reasonable doubt. There is no rational basis, and none has been shown in the judgment of the trial court, why the complainant’s version that the accused said he was a police officer was believed, and why the version of the accused was rejected. In any event, the fact that he said he was a police officer when he was not, or that he was a game ranger when he was not, does not make him a dishonest person, and is not a reason to suggest that his version is false beyond a reasonable doubt.

The trial court notes in its judgment that the accused told the court that the idea of going to the police station was from the complainant. The court says the complainant is a sex worker who had a place they could use, the court noted that it defies logic as to why she could choose a football pitch inside a police station. On the other hand, it could also defy logic, why the accused would choose, of all places, a police station to commit such a heinous crime. In any event the accused gave an explanation, which on the facts of this case, cannot be rejected out of hand. His version is that the complainant indicated that it was impossible for them to sleep at her place because there was someone she was in love with who was a gold panner and of violent disposition, he might come and axe both of them. This explanation cannot be said to be false beyond a reasonable doubt, to be rejected.

In considering the complainant’s evidence, I am fully aware that the two-pronged test in sexual cases is no longer part of our practice.  This, however, does not mean that a court should not consider the nature and circumstances of the alleged sexual offence carefully.  See:  S v Banana 2000(1) ZLR 607 (S) at 614E-G; George Nyirenda v The State HB 86/2003.The complainant is a sex work, she resides in Bulawayo, and she travelled to Filabusi for the purposes of commercial sex worker. She agreed to offer her services to the accused for a fee. She charged accused a fee of RTGS 150.00, which she says accused negotiated to RTGS 120.00. She says accused eventually offered to pay ZAR200.00. The two left the club at closing time, i.e. at approximately 3 a.m., the purpose of leaving the club was to have sexual intercourse by consent. They walked and entered into the police station, and up to that point they had no problem, in fact all was well.  The intention was to have sexual intercourse by consent. When the two were now at the football pitch, inside the police station to have sexual intercourse, complainant alleges that she was forced into sexual intercourse. Accused insists it was by consent.

I am of the view that, what is clear is that payment of her services caused the dispute between the two. The accused avers that “the issue which caused a misunderstanding between the complainant and myself is money.” The crucial issue the prosecution had to prove, was the actual stage payment became an issue, i.e. was it before or after the sexual intercourse. Complainant says it was before, she testified that accused indicated that he wanted to “sleep with me and I asked how he could feel like that since he had not paid me.”  The accused says complainant reported rape because he did not give her the money they had agreed. He says after the sexual intercourse he paid RTGS30 because it was now “short time service,” not whole night service as originally agreed. The prosecutor somehow understood the importance of the stage when payment became an issue; in cross examination the accused was asked:

Q. You would agree that if you had complied with your agreement she would not have complained?

A. yes.

Q. You fraudulently had sexual intercourse with her? (My emphasis).

A. Had I given her the $120 RTGS she would not have filed a report.

The questions of the prosecutor suggests that if complainant had been paid what she wanted, no report could have been made. The use of the word “fraudulently” by the prosecutor is telling. He must have used the word “fraudulently” understanding its legal meaning as provided in the statutes. In section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] the word fraud is defined as follows: any person who makes a misrepresentation - (a) intending to deceive another person or realising that there is a real risk or possibility of deceiving another person; and (b) intending to cause another person to act upon the misrepresentation to his or her prejudice, or realising that there is a real risk or possibility that another person may act upon the misrepresentation to his or her prejudice. I hold the view that, if the accused deceived complainant that he would pay her, whether is RTGS 120 or ZAR 200, and failed to do so after the act of sexual intercourse, rape could not be said to have been committed. If the dispute about payment occurred before sexual intercourse, the crime of rape was committed, however, if it occurred after the sexual intercourse, as the accused alleges, and the question from the prosecutor suggests, the crime of rape was not committed. The questions by the prosecutor, somehow vindicate the accused’s version.

Again, there are other aspects of the case, which seem to cast doubt on the prosecution’s case. Why, of all places would accused choose a police station as a venue to commit such a heinous crime? Accused gives an explanation for paying RTGS 30.00 not the RTGS 120.00 agreed on.  Accused avers that it is the complainant who took him to the football pitch at the police station, a place that was full of items like tissues. The complainant brought a condom to the scene, which was used during sexual intercourse. Accused avers that he visited the clubs twice after the date of the alleged rape, in the first visit he saw the complainant, they did not talk to each other, and it is the complainant’s friend who said “you do not pay the full amount and we shall fix you.” He was actually arrested at the same club in Filabusi during the second visit after the alleged rape. These could not be the actions of a person who has committed such a heinous crime.

The medical report shows that complainant had bruising on right leg and hands. It is not clear on the record what caused these bruises. She told the court that, while trying to jump over the fence, her trousers was held by the wire. These injuries might have been caused when she tried to jump over the fence and failed. The evidence shows that complainant screamed. The evidence suggests that she screamed when she saw the police officer.  This is only logical, she had to explain her presence inside the police station at that hour. It would be stretching speculation to far, to suggest that she screamed because of the rape. On the issue of the condom, the outline of the state case says accused took a condom from the complainant’s bra and wore it. He then removed the condom and had unprotected sex with the complainant. In his evidence, accused says complainant handed him a condom, and they proceeded to have consensual sexual intercourse. Complainant testified that accused removed a condom and wore it, and had sexual intercourse with her, without her consent. The allegation in the state outline that the accused had unprotected sexual intercourse with the complainant, is not borne out by the evidence. Although the medical report says fluid was noted in complainant’s genitalia, which may be semen. The medical report in non-committal, it may be semen or not. The evidence suggests that the accused and the complainant had protected sexual intercourse.

Accused told the court that the money and the phone she is referring to she gave her friend before they left the club. Complainant testified that, “I come from Bulawayo and there are elderly people whom we are used to and that is where we put our monies.” This version of the complainant sits well with the accused version that she left her money and the phone with a friend. In any event, the accused’s version, on this aspect has not been shown to be false beyond a reasonable doubt. Again, the other witnesses, i.e. Sodai Masobvu, Naison Chirata and Tichaona Masarira in the main testified to what the complainant told them. The exception being the evidence of Tichaona Masarira, that the accused said he was a game ranger, and was on leave. The accused gave an explanation for this, which has not been shown to be false.

The trial court gave no rational reasons for rejecting the version of the accused. It is abundantly clear from a reading of the judgment that the trial court did not apply the principles described above when evaluating the evidence placed before it. It seems the trial court found that state witnesses gave reliable and credible evidence and, for that reason, rejected the evidence of the accused. It is the acceptance of the complainant’s evidence, and the rejection of the accused’s version that I am not satisfied with.  I perceive no rational basis for doing so. It is important to emphasise that it is incumbent upon the state to prove its case beyond reasonable doubt.  If not, the accused is entitled to a positive finding in his favour.  As rightly pointed out by MPATI JA in L v S 2003(I) ALL SA 16 (SCA) at pages 21J to 22A –

In my view, there is simply not enough evidence to prove the appellant’s guilt beyond reasonable doubt.  He is therefore entitled to the benefit of doubt.  The result will of course be a grave injustice if the appellant in fact raped the complainant.  But that does not justify the commission of an even more serious injustice of convicting a person without his guilt having been established beyond reasonable doubt.

After a careful analysis of the totality of evidence on record, I take the view that the probabilities of the matter are evenly divided. The complainant’s version might be true. The accused’s version might be true. It cannot be said, on the facts of this case, that the state’s version upon whom the onus rests is true, and that of the accused is false. In short, there was no basis on which the trial court could properly treat the evidence of the state as sufficient to refute the accused’s defence and to prove the state case. There is a reasonable possibility of the accused’s version being true. The accused’s guilt was not proved beyond a reasonable doubt. The conviction is therefore unsafe.  It cannot be allowed to stand.

In conclusion, I must hasten to point out that I am not suggesting that a commercial sex worker cannot be raped. As a commercial sex-worker, complainant has a right to refuse to submit herself to sexual intercourse with anyone, and has a right to seek redressal when forced. The fact that she is a sex worker does not give right to any person to rape her. However, each case must be considered in the light of its own particular circumstances.

I therefore quash the conviction as well as the sentence of 15 years imprisonment imposed by the trial court.  The accused is entitled to his immediate release and a warrant of liberation is hereby issued.

KABASA J …………………………………………………… I agree