Judgment record
The State v Enerst Mupfaranyuki
HH 80-2012HH 80-20122012
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HH 80-2012
CRB No. RMA 171/11
THE STATE
versus
ENERST MUPFARANYUKI
HIGH COURT OF ZIMBABWE
BHUNU J
HARARE, 15 February 2012
Criminal Review
BHUNU J: The accused was employed by the complainant’s parents as a
domestic worker residing at Gwari Village under chief Zimuto in Masvingo Province. He
is alleged to have raped his former employer’s 11 year old daughter sometime in April
2009. The offence only came to light more than a year later in August 2010 when it was
discovered that she had contracted a sexually transmitted disease.
The complainant did not lodge a voluntary complaint immediately or within a
reasonable time to anyone. Upon discovering that the complainant had developed an
itchy condition on her genitals her mother suspected sexual abuse but the complainant
refused to disclose the culprit. She was then taken to a local clinic where the nurses
confirmed that she had been sexually abused resulting in her contracting a sexually
transmitted disease. Despite close questioning by her mother and the nurses she
consistently refused to disclose her paramour
In her desperate bid to uncover the identity of her child’s molester the mother
threatened not to take her to hospital for treatment. It is only after such threats that the
child succumbed and alleged that it was the accused who had raped her in 2009. The
complainant was allegedly raped in April 2009 and the accused left her fathers
employment at the end of January 2010 and yet the complainant was not prepared to
voluntarily disclose the identity of her molester 5 months after the accused had left
employment and gone away.
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CRB No. RMA 171/11
The accused denied the charge. The onus therefore, fell squarely on the state to
prove its case against the accused beyond reasonable doubt. The Courts have sounded a
warning time without number that sexual offences ought to be treated with special care
and due diligence in order to avert the danger of convicting an innocent person. The
inherent danger of convicting an innocent person in cases of this nature in the past
prompted the courts to adopt the now discredited cautionary rule of practice which went
rather too far in trying to give undue protection to the accused person. Despite the disuse
and abandonment of the archaic cautionary rule there is however, still need to handle
sexual offences with extreme care and due diligence.
This prompted me to remark in the case of Lawrence Katsiru v The State HH –
36-07 that:
The proper modern approach in handling cases of a sexual nature was laid down
in the well known case of S v Banana 2000 (1) ZLR 607 (S) at pp 613 – 614 where the
Supreme Court, the highest court in the land had occasion to remark that:
“…the cautionary rule in sexual cases is based on an irrational and out dated
perception, and has outlived its usefulness. It is no longer warranted to rely on the
cautionary rule of practice in sexual cases. Despite the abandonment of the
cautionary rule, however, the courts must still carefully consider the nature and
circumstance of alleged sexual offences.” (Emphasis added)
Thus on the basis of the ratio laid down in the Banana case (supra) the
abandonment of the cautionary rule did not mean a wholesale relaxation of the court’s
ordinary standard of proof beyond reasonable doubt which is meant as a safeguard
against condemning the innocent together with the guilty in the difficult course of the due
administration of justice. On the contrary the courts must exercise special care and
diligence when presiding over sexual cases for the reasons given in the case of R v W
1949 (3) SA 772 at 780 where WATERMEYER J had this to say:
“In rape cases for instance, the established proper practice is not to require that
the complainant’s evidence be corroborated before a conviction is competent. But
what is required is that the trier of fact should have clearly in mind that cases of
sexual assault require special treatment, that charges of this kind are generally
difficult to disprove, and that various considerations may lead to their being
falsely laid.(My emphasis).
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The required standard of proof beyond reasonable doubt was succinctly
expounded in the case of S v Makanyanga 1996 (2) ZLR 231 where the court observed
that:-
“A conviction cannot possibly be sustained unless the judicial officer entertains
a belief in the truth of a criminal complaint, but the fact that such credence is
given to the testimony does not mean that conviction must necessarily ensue.
Similarly the mere failure of the accused to win the faith of the bench does not
disqualify him from an acquittal. Proof beyond reasonable doubt demands more
than that a complainant be believed and the accused disbelieved. It demands that
a defence succeeds wherever it appears reasonably possible that it might be
true”.
The complainant’s conduct in this case instills a measure of doubt in the mind of a
reasonable court acting carefully. She did not make a report within a reasonable time to a
person she would reasonably have been expected to make the report. She only made the
report more than a year later after being subjected to extreme pressure and coercion. Her
explanation for her failure to make a voluntary report is that she had been threatened with
assault by the accused. In her evidence in chief she had this to say:
“I felt pain as he did it. I did not cry because he had threatened to assault me He
got off me after I had told him that I was feeling pain. I rose and wore my pant. I
noticed nothing on my thing. The accused also wore his trousers. He threatened to
assault me if I would tell anyone. I then went out of the house. Accused remained
inside for a while and later came out”.
I did not tell anyone about what had transpired because I had been threatened. The
matter came to light when I was feeling pain and I was scratching I did not know what I
was producing from my vagina. I was producing whitish staff. My mother took me to the
clinic.
Q. When did you start producing whitish staff?
A. I don’t recall but it was in the same year in 2009. Mother took me to the clinic in
2009. Mother got to know about the discharge when she saw me scratching
myself. At the clinic the nurses examined me. Gurajena Clinic in Zimuto. We
were told there was no medicine. We went back home but we had been referred to
Masvingo General Hospital I did not disclose to the nurses about the rape. I didn’t
disclose to mother either. When we went to the clinic the accused was no longer
employed at our home. I did not report to anyone because I had been threatened. I
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finally reported the rape on 30 August 2010 to my mother. We were seated near
Masvingo General Hospital I wanted to be treated and given medicine. I still had
the same problem. My vagina was itching again and mother noticed me
scratching.”
According to her mother when the nurses at the clinic discovered that she had
been sexually abused they questioned her in her presence and she flatly refused to
disclose her molester. This is what she had to say in her evidence in chief:
“I took her to Gorejena Clinic, the nurses asked what the problem was. I told them
that she was scratching herself. She was invited to lie on the bed. Later on they
called me back into the room. They told me that complainant had had sex with a
man. They tried to ask her but they failed to get an answer. They said that
complainant had totally refused to open up. They advised me to go home with her
and talk to her nicely so that she can freely disclose what happened. They said
that if she refused to open up I should take her to the general hospital.”
The complainant’s explanation for her refusal to disclose the identity of her
molester sounds hollow and unconvincing because, she did not reside with the accused.
She resided in town whereas the accused resided in the rural areas and had already left
her parents’ employment. She was allegedly raped when she had paid a casual visit to
their rural home
Even long after the accused had left her father’s employment she was still not
prepared to name the person who had sexually abused her. She only came up with a name
in a desperate attempt to get treatment for the horrible sexually transmitted disease that
she had contracted. Her mother had placed her in an invidious position where she had to
come up with a name of the person who had sexually molested her or else she was not
going to get medication for the serious disease that she had contracted.
The mere fact that the complainant vigorously attempted to shield the culprit who
had sexually molested her, gives room to a reasonable suspicion that she might have tried
to shift the blame to the accused in a bid to protect the real culprit. It would have been
helpful to find out the incubation period of the disease she was suffering from. Could the
incubation period have taken more than one year before the symptoms were noticeable?
Without expert evidence there is no way of knowing but this introduces some doubt in
the mind of the proverbial reasonable man.
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A perusal of the record of proceedings shows that the accused challenged the
production of the medical report and yet the court accepted it without calling the doctor.
The doctor’s evidence was critical in establishing when the complainant could have
possibly contracted the sexually transmitted disease because the accused had put this fact
in issue.
Having regard to the paucity of evidence, inconsistencies and questionable
behaviour of the complainant in the circumstances of this case, I am of the firm view that
it was wholly unsafe to convict the accused.
It is accordingly ordered:
1. That the conviction and sentence be and are hereby quashed and set aside.
2. The accused is found not guilty and acquitted.
3. The registrar be and is hereby directed to tissue a warrant of liberation of the
accused from prison forthwith.
DUBE J: agrees……………………………….