Jean Pierre Dusabe v The State

### Preamble
1
HH 399-25
HCHCR 5594-24
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JEAN PIERRE DUSABE

versus

THE STATE

HIGH COURT OF ZIMBABWE

DUBE JP & FOROMA J

HARARE, 28 JANUARY 2025 & 07 JULY 2025

Criminal Appeal

G. Madzoka, for appellant

W. Badalani, for the respondent

DUBE JP:

Introduction

This is an appeal against the whole judgment of the Regional Court sitting at Harare, in  which the appellant was convicted of  rape as defined in sections  65 (1) of the Criminal Law (Codification and Reform Act) [Chapter 09:23] The second count is  aggravated indecent assault as defined in s66(1) of Criminal Law (Codification and Reform Act) [Chapter 09:23]. He was sentenced to twenty (20) years imprisonment.

Brief summary of the case

Aggrieved, the appellant appealed to this court against both the conviction and sentence. The appellant a male adult, was aged 39 years and was a church pastor whereas the complainant was 12 years old at the time the offensive conduct allegedly started. The complainant Karen Maredza, and her sister Netsai, were taken into the custody of the appellant and his wife who looked after them after their parents divorced in 2013.Her mother stayed in Malawi.  The allegations in count one are that the appellant indecently assaulted the complainant once at a house in Harare. The allegations in count two are that  on dates unknown  to the prosecutor  between the years 2014 and 2022 and at different places in Harare and Masvingo, the appellant had  sexual intercourse with the complainant without her consent on several occasions. He was charged with one count of rape and another of indecent assault.

The State’s Evidence

The State led viva voce evidence from the complainant and Takudzwa. The complainant’s  testimony is as follows: Sometime in 2014 when her aunt was away on a trip to South Africa, she was having swimming lessons conducted by  the appellant in a pool at her home in Mandara together with her sister Esther Maredza. Her sister later left the swimming pool, leaving the appellant alone with her there. The appellant started fondling her breast and went on to put his hand under her skirt pushing aside her pant and inserted his finger into her vagina. She left the pool and went into her room and closed herself inside. Around midnight, the appellant came into the room, got into the blankets, and got on top of her. She awoke to find the appellant was on top of her. He closed her mouth with one hand and used the other hand to lower his shorts and pants. The appellant inserted his erect penis into her vagina and had sexual intercourse with her once without her consent.

After this incident, the appellant had sexual intercourse with her without her consent several times at different homes they stayed in. Sometime in 2015 on unknown dates and in Hatfield, the appellant would occasionally transport her to and from school using his commuter omnibus. It is alleged that during these times, the appellant would take advantage of the complainant and have sexual intercourse with her without her consent at a bushy area in Arlington. The complainant also told the court a quo that sometime in March 2022, on an unknown date, she fell sick and sought the appellant ’s help. The appellant suggested to her that they go to Masvingo to a doctor whom he knew who could treat her. Whilst there, the appellant had sexual intercourse with her four times without her consent, after his relatives whom they had found at his house had left for Harare. The appellant’s wife did not suspect anything.

In April 2022, the complainant fell in love with Takudzwa Matasva, (Takudzwa) and they later married. She initially told him that she had been sexually abused by her dad and that she was not a virgin. Later she confided in him and told him that it was the appellant who had raped her.  Takudzwa told the complainant’s sister who in turn told their mother about the allegations. Complainant’s sister confronted the appellant. A report of the alleged sexual abuse was made to the police in 2024 leading to the arrest of the appellant. Later the matter was brought to the attention of the church. Church leaders from South Africa came to Zimbabwe to talk to them and gave them some money. Takudzwa was arrested and convicted for threatening the appellant and had peace orders sought against him.

Takudzwa was called as a witness in support of the State case. He told the court that he did not initially focus on the sexual allegations as he had assumed that the complainant’s biological father was the one who had abused her, since he was no longer in her life. When he learned that the alleged abuser was a church pastor who is the complainant’s father-figure, this angered him as he found it inappropriate that the appellant would continue preaching while allegedly being involved in such serious criminal activity leading to a report being made to the police.

The defence case

The appellant pleaded not guilty to both counts and was convicted of both counts which were treated as one for purposes of sentence and sentenced to 20 years imprisonment.  He  denied that he inserted his fingers into the complainant’s vagina and that this happened when he was  teaching her how to swim, asserting  that he never resided at a house with a functioning  swimming pool. He told the court that his wife never went to South Africa in 2014 as alleged. As regards the rape allegations, he denied entering the complainant’s room for purposes of having sexual intercourse with her without her consent in 2014. He also denied that he had sexual intercourse with her in a bushy area in Arlington, stating that he never picked her up from school using a commuter omnibus. He told the court that he never took the complainant to Masvingo for medical treatment nor had sexual intercourse with her without her consent whilst there as alleged claiming that the complainant fabricated the charges.

In support of his case, the appellant called Netsai Mukoki his wife, whose evidence was to the effect that she never went to South Africa in 2014 as alleged. She produced her passport which shows that she travelled to south Africa in March 2013 and March 2015.   She together with Tichaona Mukoki,Tendai Mukoki,  the wife’s brother, testified that the swimming pool had no water, was dirty and could not be used for swimming.

The court a quo determined that the appellant was guilty beyond a reasonable doubt and convicted him. Aggrieved by the conviction and sentence, the appellant appealed against both the conviction and sentence on the basis of 12 grounds of appeal which raise the issue whether evidence was led to show that the appellant indecently assaulted the complainant and raped her on several occasions. Ms Badalani for the respondent, conceded the appeal in terms of s 35 of the High Court Act [Chapter 7:06] and moved this court to grant the appeal.  At the hearing, the court requested the State to justify its concession which it ably did.

Submissions before this court

Ms Badalani submitted that the court a quo erred in finding that the delay in reporting the rape was reasonable when one considers the manner in which the offence surfaced and the material discrepancies and inconsistencies in the evidence of the complainant which raise questions about the reliability of her evidence, especially since she was already an adult when the case was reported. In response, the appellant submitted that the court a quo erred in accepting the complainant’s evidence considering the lengthy delay in reporting the assault, the discrepancies in her statements and the lack of corroborating evidence.

Analysis of the evidence

The court a quo found the complainant to be a credible and reliable witness holding that her evidence found corroboration in the evidence of Takudzwa and that there was no reason for the complainant to fabricate allegations against the appellant. It rejected the appellant’s defence and convicted him of both charges The court a quo found that it was common cause that there was a swimming pool at the house in Mandara, finding that the appellant inserted his fingers into the complainant’s vagina when she was having swimming lessons in a swimming pool. The court a quo erred and misdirected itself believing the complainant’s version without making specific findings on the defence that the pool was not functional.

The court a quo failed to address the defence that the appellant’s wife was never away in South Africa in 2014 when the first incidences of the alleged abuse took place. Netsai Mukoki’s passport shows, contrary to the evidence of the complainant, that she did not leave the country in 2014 as there are no immigration stamps in support of that assertion. The complainant was unable to show that her aunt was away when the alleged offences took place. Once again, the court a quo erred in failing to make specific findings on the effect of this evidence on the complainant’s credibility which amounts to a misdirection on its part.

The court a quo erred in relying on the appellant’s ownership of a commuter omnibus as a factor in convicting the appellant of rape when faced with a defence that he never transported the complainant in the commuter omnibus to and from school. The ownership of the combi alone cannot be used to infer the appellant's guilt in a case of rape. The court a quo in our view misdirected itself by relying on this evidence as corroborating the rape allegations.

The alleged rapes in Masvingo took place at a time when the complainant was already married to Takudzwa. The question is, why would she fail to report these incidences considering she was no longer a child and in circumstances when she had already reported earlier incidents of rape to her husband. If indeed the complainant had been raped in Masvingo, she would have been expected to make an immediate report to her husband. See S v Banana 2000 (1) ZLR 607 (S). The failure to report the rapes is unreasonable and raises questions about the reliability of the complainant’s evidence.

The medical report produced in support of the State case did not help the complainant’s case at all. It did not reflect the correct circumstances of the complainant, perhaps due to a mix-up.  The nurse who examined the complainant indicated that the complainant had no previous genital sexual experience and yet ticked that she is ‘MARRIED’.  Complainant had been having sexual intimacy with her boyfriend since they were dating in 2021 and cannot be said to have had no previous sexual experience. The report states that there are remnants of hymenal tissue which is unlikely for a married person. One would ordinarily expect to find tears on the hymen for someone without a previous sexual experience. As it stands, the medical report is contradictory regarding the facts on the ground and it does not corroborate the complainant's story in any respect.

The alleged rapes were reported to Takudzwa around 2021 and two years later a formal report was made to the police.  The delay in the time the rape allegations were reported is inordinate. In dealing with the question of the delay in reporting the alleged abuses, the court a quo was alive to the lengthy delay in reporting. The court a quo found that the delay in reporting the matter was not fatal to the case given the specific circumstances of the complainant's age, cultural context and familial pressures. The court a quo cited the case of Shreekant Shamma v State of West Bengal LAW (CAL) 2023-7-27, for the proposition that cultural context and the fear of social stigma often prevent victims, especially minors, from reporting abuse promptly, thereby finding that the complainant was a credible witness.

The court a quo considered that the complainant was 12 years old and a child when the alleged offences occurred, was being looked after by the appellant in his home and that it was not easy for her to report the abuse due to family resistance and pressure on both the complainant and her boyfriend.  It also considered the effect of a visit by Church members from head office on the complainant and her husband finding that their mission was to dissuade her from pursuing the charges. In rejecting the evidence of the defence witnesses, the court a quo found that they were biased due to their dependence on the appellant for their livelihoods. The court a quo underlined that the defence witnesses stayed under appellant’s roof and that it was not easy for the complainant to stand up and challenge such a setting, showing the family's strong support for the appellant. These remarks though cogent and apparently compelling seriously overlook the casually unsatisfactory features of complainant’s version.

The delay in reporting the rape (two years) after the allegations surfaced, combined with the 10-year delay in reporting the alleged assault, raises doubts about the credibility of the complainant and the other State witness generally. The court a quo erred in believing the two State witnesses without interrogating in detail the reasons for the delay in making the report. A delayed complaint raises doubts about the truthfulness of rape allegations, see S v Banana 2000 supra and S v Zaranyika 1997 (1) ZLR 539 H. However, the court a quo acknowledged that while such delays are disconcerting, they are not automatically fatal to the case.

The law does not regulate time limits within which a rape matter should be reported. Each case depends on its own circumstances. All that is required is that the rape be reported to a person to whom the complainant is expected to report to without undue delay. A complainant should make a report within a reasonable time.  The complainant albeit young at the time of the first alleged rape, could have reported the alleged rapes to her sister whom she stayed with, grandmother whom she said she was close to or even her mother particularly since the abuse continued and did not stop as she grew older. This she did not do. Even when she was already in a relationship with Takudzwa, she failed to report the incidents of rape that occurred in Masvingo in 2022.

The complainant, who was around 12 when the abuse began, did not report the abuse immediately. She could have reported to her sister, the maid or her grandmother whom she claimed she was close to or even her own mother. These are persons she would have been also expected to report to. Her explanation for the failure to report the allegations timeously are that she had been threatened with death if she told anyone and also because he said that he would stop taking care of her. It is reasonable for a 12-year-old to fail to report rape allegations because of threats and the fear that the appellant would stop looking after her. However, what is of concern to us is that in cross examination she changed her mind and told the court that she was not threatened by the appellant. Faced with this evidence, the court a quo was expected to comment on the effect of this sudden change in complainant’s version which it did not do. Thus in our view was a misdirection.  A reading of the record reveals discrepancies regarding the year when she made the report of the sexual abuse to Takudzwa. In her evidence in chief, she told the court that she made the report in 2022 [p 48] and later on that she had done so in 2021 [p 49]. This inconsistency was not adverted to by the court in its findings. The complainant’s story that the appellant accompanied her for medical treatment to Masvingo and there raped her about 4 or 5 times in 2022 when she was already married to Takudzwa and only reported the alleged rapes in 2024 is unbelievable. The complainant was old enough at that time and one would have expected her to have made a report of these rapes to Takudzwa her husband immediately having already reported several other incidents of rape to him. We cannot understand how it come about that even Takudzwa would have agreed to her meeting with her assailant. There being material inconsistences in the complainant’s evidence, this ought to have created doubt regarding the rape allegations on the mind of the court a quo bearing in mind that the complainant was testifying as an adult. The court a quo erred in accepting the complainant's testimony as admissible given that the complainant only disclosed the assault after repeated inquiries by Takudzwa. The report was not made voluntarily and was made only after it was discovered that she was not a virgin. She initially just reported that she had been raped by a stepfather, only to reveal a year later that it was the appellant. One wonders if she would have reported if it had not been discovered that she was no longer a virgin.  The suggestion is that she may have  been a consenting party if at all the sexual intercourse took place .  The lengthy delay in reporting the alleged abuse and the fact that she had to be probed to reveal the allegations raises doubts regarding the truthfulness of the rape allegations.

Takudzwa’s explanation for the delay in reporting the rape is that he thought it was her father who had allegedly raped the complainant and that when he learnt that it was the appellant, he felt he should get even with him as a pastor. Further, that there was a lot of interference and pressure on him and the complainant. The evidence led does not show that Takudzwa was afraid of the police and the appellant. He was not afraid of the appellant who he would send messages on whatsapp threatening him to step down as a pastor. Whilst the complainant and Takudzwa may have been put under pressure in the end, under cross examination he said he delayed in reporting the matter because he wanted to gather more evidence about the alleged rape, showing that he was satisfied on the veracity of the allegations.

The court a quo’s conclusion that the defence witnesses testified in favour of the appellant because they are financially dependent on him lacks factual basis as there was no evidence presented showing that all the defence witnesses were financially dependent on the appellant or living with him. Takudzwa conceded that the church elders who met him and discussed about the rape allegations had not been sent by the appellant but came in solidarity with him. It was not shown that the appellant was aware of the meeting and cannot be blamed for it. Their efforts are not indicative of the appellant’s guilt.

An appeal court will not interfere with the factual findings of a trial court unless the court a quo’s findings are grossly unreasonable and are not supported by evidence or are irrational and a clear misdirection on its part. In casu, the report of rape does not meet the requirements for admissibility. The trial court erred in failing to make findings on material aspects of the case. The delay in reporting the alleged rape and indecent assault and the circumstances under which the disclosure was made render the complaint doubtful and unreasonable. Consequently, the State evidence led is not reliable and safe to convict on. The appellant’s story is convincing. The State failed to prove its case beyond a reasonable doubt.

Disposition

The evidence that was placed before the court did not meet the required threshold when regard is had to the evidence of the State witnesses. On that basis, this court is obliged to interfere with the findings of the trial court. The evidence being unreliable, it was unsafe to convict the appellant on its basis. Accordingly, the court finds that the State’s concession was properly made. The appeal succeeds.   In the result, it is ordered as follows:

The appeal against both conviction and sentence is upheld.

The court a quo’s conviction and sentence be and is hereby set aside and in its place is substituted the following;

“The accused is found not guilty and acquitted’’.

Hatinahama & Associates, appellant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners

DUBE JP: …………………………………………………………

FOROMA J: ……………………………………………... Agrees