THE State V Malvin Ganduka

### Preamble
1
HCC59/25
HCCR1373/25
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THE STATE 
versus
MALVIN GANDUKA

HIGH COURT OF ZIMBABWE
BACH MZAWAZI J
Chinhoyi, 30 September 2025

Criminal Review

BACHI MZAWAZI J:

Introduction

This is an automatic review matter. In a contested trial, the accused denied both the physical abuse and the malicious damage to property charges proffered against him. Nevertheless, he was convicted on two counts of contravening two different provisions of sections 3 as read with s 4 of the Domestic Violence Act, [Chapter 5:16]. Subsequently, he was sentenced to an effective 9 months from a total jail term of 12 months for the physical abuse offence. For the second count he was sentenced to a fine of USD150.00, in default of payment two months imprisonment.

Proceedings In the Trial Court

Background Facts
The accused aged 24 and the complainant aged 19, are a customarily married couple as reflected on the record. The duration of their marital union was not established on the papers nor the existence of any offsprings from that relationship. What is evident is that, given the considerable household property they had accumulated against the background of their ages and surrounding circumstances they may have stayed together for a substantial period.  From the record of proceedings, their relationship showed that it was marred by trust and dishonesty issues.

What triggered the allegations, giving rise to the offence, is an unfamiliar cell phone, which was in the possession of the complainant but had been concealed from the accused, that is the, husband’s sight and knowledge. Upon viewing suspicious indicators of the presence of the phone and the ensuing discovery after an unsatisfactory explanation, an altercation ensued between the parties.

Complainant’s version

The complainant’s version was that the accused attacked and assaulted her using fists and several kitchen utensils. She did not deny that she was in possession of a strange phone but gave an explanation as to the non-disclosure of its existence to her husband. A medical affidavit was produced indicating that she suffered facial injuries, in particular to one of her eyes. The medical report indicated the likelihood of permanent impairment.

It was the complainant’s evidence that several of the parties’ furniture was deliberately destroyed by the accused who vented his anger on the inanimate objects.

Accused’s case

In his defence the accused vehemently denied assaulting the complainant in any manner or as alleged. He told the court that the discovery of the hidden phone, after being given an impression that the complainant no longer had a handset disturbed him. Especially, when he had bought and brought home a surprise phone as a gift the same night. What provoked the situation, is the concealment and lack of admission by the complainant, when asked about the presence of a foreign phone by the accused. Accused’s suspicions had been triggered by the discovery of plugged unfamiliar chargers indicating the presence of a phone in their home when his wife had no known cell phone.

It was the accused’s defence that an altercation did ensue over the issue but he neither physically assaulted the complainant or throw any kitchen paraphernalia at her. His evidence was to the effect that the search and discovery of the hidden phone led to some struggle and the complainant bumped into a mirror and some of the household property in the process of exiting the room.  As a result, any injuries sustained may be as a result of that accidental collision.

In respect to count two, the accused stated that the complainant, when she exited their home, returned a while later in the company of her family members. The family members then assaulted him in that constricted environment, thereby damaging the property in issue.

The accused led evidence from two witnesses. One of them stated that, though she did not witness the actual altercation, she heard a commotion indicating a fight in the accused and complainant’s homestead. She could neither confirm nor deny the presence or involvement of the complainant’s family in the fight she heard.

The second witness’s evidence revealed that, firstly the television which had been included by the complainant, as amongst the property the accused had destroyed, was not destroyed on the night of the fracas nor by the accused. This witness stated that it was the complainant herself who had in an undisclosed incident destroyed the television set. This evidence stood unchallenged and was accepted by the trial court.

The Trial Court’s findings

After hearing evidence, the trial court admittedly, based her conviction on single witness evidence. She elected to believe the complainant’s word against that of the accused. She convicted the accused on both counts, relying mainly on the medical affidavit. She explicitly stated that the injuries found and supported by the medical affidavit disprove the accused’s version in that the complainant could not have inflicted such injuries on herself.

In a beautifully penned sentencing judgment, the primary court correctly acknowledged that the spirit behind the Domestic Violence Act, as pronounced by the courts, is the preservation of the family unit whilst curbing gender-based violence. The court was of the view that although case law shows that imprisonment should be of the last resort because of the injury sustained by complainant a jail term was from her considered view appropriate.

Analysis

The starting point is that, superior courts despise and guard against the interference with both the factual and credibility findings of a presiding court.  Further, it is only when there is gross irregularity or irrationality that an upper court can interfere with a lower court’s factual findings. In addition, the sentencing discretion of a subordinate court is also immune to interference save when the discretion has not been exercised judiciously. That is, the conclusion made by the said court is not supported by the facts nor the evidence or a misapplication or misapprehension of the law.

On the other hand, an automatic review recourse is by operation of the law. It is a constitutionally sanctioned avenue open to undefended accused persons to have a second chance or go, at justice before a different superior court.

Single witness evidence in sexual offences

In casu, the trial court by its own admission and justifications, relied on single witness evidence. It is settled law in this jurisdiction that in sexual matters corroboration may not be necessary. A conviction can be made on single witness evidence provided it is sufficiently reliable, credible and trustworthy. The court in such a scenario, where it is the witness or victim’s word against the accused’s word has a judicial mandate to be very objective in eliminating the potential inherent dangers in single witness evidence. That is, self-preservation, putting oneself in better light, deliberate exaggeration, and honest deception.  The court must satisfy itself with and weigh the cogency and quality of the evidence. A determination on its clarity and significant flaws must be made. The well-established judicial rule of the cautionary approach in single witness evidence should  not be negated as amplified in the cases of S v Mupfumburi HH464/2014, S v Chikanga HH233.2022, S v Cupido (1237/2022[2024[ZASCA4(16 January 2024).

Notably, the trial court acknowledged and believed the testimony by the defence witness that one of the items listed as damaged by the accused, the television was firstly not damaged by the accused but by the complainant herself. Secondly, that, that item was not destroyed on the date of the alleged offence but way back on a different unexplained incident. On assessment, this is material evidence which goes to the root of the whole testimony of the complainant. Knowing fully well of the veracity of that fact, she did not only conceal the same to the police, to the State but in her evidence in chief, in court. That crucial, but damning piece of evidence only came to light through the defence witness. This then questions or put to test the honesty, reliability and trustworthiness of the evidence of this single witness.

The deliberately withheld evidence of the destruction of the family television, not only dented the single witness’s evidence but also explicitly portrayed her as the one with a violent disposition and an inclination to destroy household property. In essence, the omission of that crucial piece of evidence did a lot of damage to the complainant’s credibility and inevitably her version of events as contrasted with that of the accused.

If this is weighed against the uncontested evidence of the accused, that the accused was the sole bread winner and purchaser of the household property who fully comprehends the labour exerted into earning cash and then acquiring property, then it makes no sense that he would readily destroy that which he painstakingly acquired. In addition, the accused’s evidence that it is the complainant’s relatives who damaged the rest of the property was not rebutted. It was not denied that the complainant’s relatives did arrive at the scene a short period later and are accused of having destroyed the property whilst exacting revenge assaults on the accused.

A second defence witness attested of hearing a commotion, tantamount to a fight but could not deny or admit the presence of the said third parties nor their involvement in the whole fracas. It was thus not proved beyond a reasonable doubt that the accused damaged the said property. In light of the above, the trial court wase enjoined to thoroughly and sufficiently weigh the evidence of the accused against that of the single witness which we believe it did not. This was amply highlighted in S v Chabalala 2003(1)SACR 134 (SCA).

This brings us to the first count of physical abuse. The conviction was based on the medical affidavit. Whilst the expert document could detail the injury and its extent, it fell short of distinguishing between self-inflicted, accidental or third party-imposed injuries.  So, in this box ring match evidence before the court, the probability from the whole conspectus of evidence, that during the misunderstanding, the complainant may have sustained injuries through her own bumping into a mirror which then fragmented cannot be ruled out.

Given the dishonesty in the complainant’s evidence on vital information, as examined above, even in single witness evidence cases, there must be proof beyond a reasonable doubt that the accused did commit the offence. We are of the view that this onus of proof was not discharged by the State. The accused’s version tilts the scale as the more probale. Moreso, when the law says, in such scenarios of a box ring match, the benefit of the doubt should be given to an accused. Further, that if reliance has to be placed on single witness evidence it should be consistent and reliable. The complainant’s evidence, as analysed herein failed the honest, trustworthy and reliability test. Therefore, the court erred in placing reliance on such evidence. The factual findings were not supported by the evidence adduced.

It is our considered view that, given the above, the benefit of the doubt in both counts should have been accorded to the accused. It has been noted time and again through case law, that the onus is on the State to prove its case beyond reasonable doubt and that no onus rests on an accused person to prove his innocence.     As already highlighted and from a holistic perspective analysis, the convictions in both counts were unsafe. The trial court misapplied the evidence to the facts, as there was no evidence at all supporting the complainant’s word which gave rise to the conviction.

Sentence

For completion, as regards sentence, we do appreciate the rampant increase in gender-based violence cases and the need for deterrence.  We are also of the view, that in sentencing domestic violence perpetrators, like in any other offence, a balance must be struck between the aggravatory factors and the mitigatory factors and all peculiar features of each case. In this case, only two aggravatory factors were prominently given precedence over a number of mitigatory factors. These are the injuries sustained and the fact that the parties at the time of the trial had been separated. The complainant had been taken back by her parents.

On the other hand, in mitigation, there was no evidence that the accused was a repeat offender, he is a youthful offender. He did not persuade the complainant not to report, bribe or manipulate her as is the modus operandi of habitual physical abusers. He was meaningfully and productively employed. He had no history of violence as reflected by the sentencing report.  Over and above all that, there was provocation surrounding the strange phone of questionable origins in his homestead.  In that case, whilst an exchange of words or insults amount to violence, as well as aggressive physical contact, in this case from the analysis herein, it was a mere family, husband and wife dispute that degenerated or escalated out of bounds.

Whilst there is need for uniformity in sentencing, the factors surrounding each and every domestic case are always unique and different.  They present themselves differently. Bearing in mind that conflict is inherent in humans, let alone marital relationships, it is the conflict management aspect that lacks, resulting in the prevalent multi-faceted forms of domestic violence. Academics advocate for restorative justice, where not only the root cause, source of the problem is identified but addressed with a purpose of finding an amicable resolution. The traditional family counsellors, church elders and other familial institutions play a great role in such disputes.  This is also well captured in the Domestic Violence Act.

In addition, the Domestic violence Act, itself, makes provisions for protection orders as preliminary steps before considering incarceration. The protection order can be granted even if the parties are staying in the same house illustrating the need to preserve family unit and continuity. It is only when a recalcitrant party breaches this preliminary action aimed at salvaging a marital relationship and or  to manage conflict, will then a sterner penalty be considered. The breach of the protection order will serve as  aggravation. In most cases, the sentencing pattern has been that, in the presence of previous convictions of domestic violence, an automatic custodial sentence may be the most appropriate.

In a nutshell, the sentencing guide states that a custodial sentence should be of the last resort. Especially, where a statutory penalty of a fine is provided for. Community service, in the circumstances of this case should have been considered. It was not, even though it is punishment and can be equally effective.

Where there is no satisfactory evidence that the accused is an abuser and is actually the victim, the dictum in Zwelithini Maxwell Zondi v The State (1232/2021)2022 ZASCA 173(7November 2022) rings   true.  It says, “It is a well-established principle in our law that in search for the truth it is better for a guilty person to go free than for an innocent one to be convicted. On this basis, the accused is given the benefit of doubt and must the appeal must succeed.”

Accordingly, we find, both the conviction and sentence are not in accordance with real and substantial justice.  Both are set aside. The trial court’s sentence is substituted with not guilty and acquitted.

National Prosecuting Authority
Muzofa J, I agree.