Tonderai Muzondo v The State

### Preamble
1
HB o1/21
HCA 587/13
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TONDERAI MUZONDO

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

TAKUVA & MABHIKWA JJ

BULAWAYO 25 NOVEMBER 2019

Criminal Appeal

N. Sibanda, for the appellant

Ms S. Ndlovu for the respondent

MABHIKWA J:	The appellant in this case appeared before a magistrate sitting at Hwange on 16 September 2013.  He was facing a charge of contravening section 67 (1) (a) (i) of the Criminal Law (Codification and Reform) Act, [Chapter 9:23] “indecent assault”.  It was alleged that on 4 March 2013, at ZRP Hwange Camp Quarters, and with indecent intent, and knowing that the complainant had not consented to such action, the appellant fondled the complainant’s breasts.

The appellant allegedly entered the dining room where there was a refrigerator.  The complainant was also in the dining room.  The appellant then fondled the complainant’s breasts.  She allegedly phoned her husband about the incident that same evening but an official report to the police was made two weeks later on 20 march 2013.

The appellant pleaded not guilty to the offence.  After the trial, he was found guilty.  He was sentenced to 18 months imprisonment of which 6 months were suspended for 3 years on conditions of good behavior.  The remaining 12 months imprisonment were suspended on condition the appellant completes 420 hours of community service at Hwange Government School.

The appellant then appealed to this court against both the conviction and sentence.  We dismissed the appeal in its entirety.  The following are the reasons for the dismissal.

Both in his notice of appeal and in the heads of argument, the appellant submits simply that the court a quo erred in believing the complainant’s evidence when it is unsatisfactory and it ought not to have been believed.  That is the only ground on conviction on the notice of appeal.  The rest, just like in the heads, were submissions criticizing the evidence in a bid to show why it should not have been believed.

We must reiterate, as always stated, that the credibility or otherwise of any witness on the facts is the domain of the trial court. The appeal court will not readily interfere on questions of credibility of witnesses.

See the civil case of Beckford vs Beckford 2009 (1) ZLR 271 (S)

Lethuthando Ncube

The complainant’s evidence was simple.  In the evening of 4 march 2013 after she had finished washing her dishes, she put some left overs in the fridge.  The fridge was in a dining room shared by 2 small families.  The appellant was sitting at the table eating.  As she turned, the appellant blocked her way and fondled her breasts using both hands.  She then turned round the table.  She placed a mat behind the door.  When she turned again, the appellant stood up and got hold of her but she entered her room.  She then phoned her husband.  She also wanted to report the matter to the police but she says her husband told her that he would talk to the appellant himself.

The complainant said this was an indecent assault that happened very quickly with the appellant’s wife not seeing but was just outside and barely 3 metres away.  She was asked why she did not report to the police immediately but did so two (2) weeks later.  She explained that firstly, she had immediately phoned her husband who himself was a police officer and at work at the same police camp.  Secondly, this was not the 1st time the appellant had done the same thing and had been reprimanded.  Thirdly, after the incident, she became confused, angry and did not know what to do next.  She had always told the appellant that she did not like what he was doing, but again on that occasion, the appellant used both hands and touched her once.  The appellant had later begged her and her husband not to report or tell his wife about it.

Empilweni Sibanda

He was a policeman at the same camp with the appellant.  They had stayed together for two (2) years sharing accommodation.  Sibanda’s 1st wife had left.  The complainant had been with them for ten (10) months only.  He took the appellant as a friend and a brother.  Apparently, the appellant was senior both in age and rank at work.

On 4 March 2013, he reported for duty at 21:00 hours.  An hour later, he noticed a missed call from his wife.  He called back.  The wife (complainant) received the call crying. She told him that she was being abused.  Troubled, this witness went home.  The complainant told her that the appellant had fondled her breasts.  The witness says he knew that this was not the first time.  He was hurt.  He went to the appellant.  He found him leaning against his car.  He asked him about the fondling incident.  The appellant however denied the allegations and even accompanied him back to work for about 500 metres.  Before parting, the witness asked the appellant that they meet in the morning. However,  he could not find the appellant the next morning.

The witness said that it was difficult to report.  He regarded the appellant not only as a friend but a brother too.  He was actually the best man at their wedding and even signed their marriage certificate as a witness.  The appellant also begged them not to report.  After all, the appellant had once committed a similar indecent assault and was reported to a Superintendent Ngorima at Hwange District Headquarters (DHQ).  In this case, the wife eventually made a formal report after they failed to talk to the appellant.

The witness admitted that he used to stay with a girlfriend (not wife) who went away but has never returned since the arrival of his wife.  It was the abuse of his wife by the appellant that caused this witness to seek a transfer from the Hwange Police Station which was granted.

Tonderai Muzondo

The accused’s defence and evidence was simply that he and his family were friendly to a former wife, girlfriend or small house of Mr Sibanda.  He says the woman would assist and be accommodated by him and his wife.  He claims that they were actually keeping the woman’s clothes.  The complainant was not happy with that situation and thus reported to the police that she had been sexually abused.

Tineyi Mpofu

This defence witness had nothing of evidential value to say.  In about four (4) small sentences, he told the court that it is his car that was used at the wedding when Sibanda and the complainant wedded.  The court rightly did not even seem to see the relevance of this witness and his evidence.  We do not see it either.

In our view, the trial court properly assessed the evidence before it.  For instance, the magistrate dealt with the issue of possibility of the complainant having her breasts fondled by the appellant when his own wife was barely 3 metres away.  The trial made reference to it and accepted the explanation that it was an incident that happened quickly when the wife was just outside washing clothes.  We also note that it does not necessarily follow that the wife should have seen the fondling.  After all, there was no evidence by the appellant and it was not even shown in cross-examination that the said wife, though near, was within sight when the assault took place.

The trial magistrate also accepted and explained his findings of credibility on the complainant’s failure to resist, escape or raise alarm at the time she was fondled.  He accepted that victims in sexual offences react differently.  The fact that when her breasts were fondled, the complainant did not resist or tell the appellant’s wife but quickly went to her room did not mean she agreed with what had been done to her.  In casu, she reacted by quietly going into her room and cried, and phoned her husband.  After all, her husband was a police officer as well and they were living within the police camp houses.  She immediately phoned him crying and he came down and approached the appellant.

We did not see what was so special about the “reporting” referred to by appellant’s counsel or what “reporting” was he talking about.

The trial also considered and assessed the two families’ relationship well.  The appellant claimed there was bad blood, but the magistrate said the evidence showed the contrary.  They lived together for 2 years in a 3 bedroomed house.  The appellant was the best man at the wedding of the complainant and Constable Sibanda.  They celebrated birthdays together. The list is endless.

We also note that the appellant himself concentrated on trying to find a defence for the current fondling, which is subject of the charge.  He forgot the other occasions of sexual abuse which, though not charged were part of crucial evidence.  For instance, he did not deny on record that he had done similar acts of indecent assault on complainant before and was reported and reprimanded by Superintendent Ngorima of Hwange DHQ.

The complainant clearly did all in her power.  The two men. Her husband and the appellant were close friends, workmates and house mates.  She apparently did not wish to spoil that friendship. More than once, she told the husband about the abuse.  Even on the current occasion subject of the charges, it appears that she was at pains to report and probably only did so as a last resort as she felt helpless.  All her earlier efforts had failed to stop the abuse.

In our view, she cannot be dismissed as having been malicious.  The issue of the former girlfriend of the complainant’s husband could not have led to such allegations.  In any event, the husband dismissed them as a non event.  He was adamant that the ex-girlfriend had not returned to Hwange Police Camp since the arrival of the complainant.  Further, he said he knew and there was nothing strange about the girlfriend’s clothes being in the alleged room because it was a shared room.  It cannot be said that the appellant was keeping the clothes of the ex-girlfriend.  We thus do not see any reason to interfere with the decision of the court a quo.

Ad sentence

In his mitigation of sentence, in the court a quo, the appellant, through counsel, had asked the court to consider a sentence which did not involve effective imprisonment.  He prayed for a fine coupled with a suspended term of imprisonment.  He submitted that there could be difficulties in the implementation of community service because the appellant is employed, otherwise he would have urged the court to consider it.

Surprisingly, the appellant’s heads of argument are clearly contradictory on the question of community service as a sentence befitting the offender in this case.  In paragraph 2 on sentence, he repeats that community service means loss of employment and support for his family.  But on the prayer in the same heads, just a few lines down, he prays for community service.  He prays that;

“Wherefore appellant prays that the sentence be set aside and that it be substituted with a fine coupled with a suspended sentence or that the term of imprisonment be reduced to 4 months two (2) of which is suspended on conditions of good behavior and the remaining 2 months be commuted to community service.”  (the underlining is mine)

So, in his ultimate prayer in the heads of argument, appellant actually prays for a sentence involving 2 months worth of community service.  This may in fact translate, with very slight differences to the same community service sentence by the court a quo.

Community service, just like imprisonment as a sentence, should be a form of punishment befitting the crime, the interests of justice and the offender.  It should be regarded as such, not as some alternative to imprisonment that an accused may ask for if he wishes.

We note also that both in mitigation and in his heads on the question of sentence, the appellant cited just the one case of State vs Phiri HH-219-93 where the appellant had allegedly approached an unknown woman (stranger).  She was walking along a street with her brother.  Appellant touched her breast intending to propose love to her.  He was a first offender with 3 children almost as in casu.  However, that case is distinguishable from the one in casu.  In Phiri’s case, he fondled a stranger in the street and touched one breast.  In casu, the appellant touched both breasts barely two metres away from his own wife.  Secondly, the complainant was the wife of a close friend and fellow police officer.  He and the complainant treated him as an elder brother.  Thirdly, though this was his first charge, it was not the 1st time to sexually abuse the complainant and he had been reprimanded by the superiors in the force, a fact he did not deny.  Fourthly, Phiri had been sentenced to effective imprisonment, not community service and hence the appeal court interfered with the sentence.

I must say we notice also that the appellant’s notice of appeal and the heads of argument are again contradictory.  Paragraph 3 on sentence correctly reveals that the appellant received a sentence involving community service.  However, the same paragraph 3 on sentence on the heads of argument gives the impression that appellant was sentenced to effective imprisonment.  This is incorrect.

In our view, the state correctly submitted that the sentencing court has a discretion in assessing an appropriate sentence and that the appeal court will only interfere with that discretion where there is a misdirection – see R v Ramushu (S) 25-93.

It is trite law also, that the appeal court will not simply interfere to substitute the sentence of the trial court with what it (the appeal court) would have considered appropriate, even for a slightly different sentence had it sat as the court of 1st instance itself.  The sentence should not only be harsh.  It should not simply be stated as a matter of procedure that the court misdirected itself but it must be shown that there is indeed a misdirection leading to injustice.

In his reasons for sentence, the magistrate considered that imprisonment would be too harsh in his view.  He also considered that a fine would be inappropriate in that it would trivialize the offence and expose the justice system to ridicule.  He then opted for a sentence involving community service.

We find no misdirection shown at all on the part of the trial magistrate both on conviction and on sentence.

Accordingly, and in the circumstances, we dismissed the appeal in its entirety.

Takuva J …………………………. I agree

Marondedze, Mukuku, Ndove & Partners, appellant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners