Silence Dhimbiri v The State

### Preamble
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HMA 10-19
CA 64/17
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SILENCE DHIMBIRI

Versus

THE STATE

HIGH COURT OF ZIMBABWE

MAWADZE & MAFUSIRE JJ

MASVINGO, 14 MARCH 2018 & 22 FEBRUARY, 2019

Criminal Appeal

Ms L. Manyika, for the appellant

Mr B.E. Mathose, for the respondent

MAWADZE J: 	On the 14 March 2018 after hearing counsel we granted the following order;

“The appeal be and is hereby dismissed.”

The reasons for dismissing the appeal in respect of both conviction and sentence were given ex tempore. Later counsel for the appellant requested written reasons for dismissing the appeal. We now provide the said reasons.

The appellant was convicted by the learned Regional Magistrate sitting at Chiredzi of rape as defined in s 65(1) of the Criminal Law (Codification and Reform) Act [Cap 9:23] (The Criminal Code).

The appellant was sentenced to 10 years imprisonment of which 3 years imprisonment were suspended on the usual conditions of good behaviour for a period of 5 years.

The grounds of appeal are outlined as follows;

“Grounds of Appeal

Ad conviction

The Magistrate erred in convicting the appellant of rape yet there was evidence to show that the appellant and the respondent (sic) were in consensus in everything that took place on that day in question. The learned Magistrate did not consider the surrounding circumstances of the case which shows that the respondent (sic) consented have sexual with the appellant (sic).

The learned Magistrate erred in convicting the appellant of rape considering that the appellant and the respondent (sic) both consented to sexual intercourse. The learned Magistrate should have considered convicting the appellant of a lesser charge of contravening Section 70 of the Criminal Law (Codification Reform Act) [Cap 9:23], (sic) if at all a conviction was justified.

Ad sentence

The court erred in sentencing the accused to 10 years imprisonment after conceded (sic) in mitigation that the accused was a fairly young and still had a life ahead and that complainant was just a few months from the consenting age.

In the event that the honourable court dismisses appellant’s appeal against conviction, the appellant would submit that the sentence imposed was too harsh and induces a sense of shock and would request this honourable court to vary the sentence by imposing a fine or to order for community service. (sic)

Wherefore the appellant prays for the decision by the court a quo of convicting him to be dismissed and or for the imprisonment term imposed to be quashed and to be replaced with a fine or an order for community service.” (sic)

It is without doubt that the grounds of appeal in respect of both the conviction and sentence are clumsily drafted. Besides the atrocious language and grammar, the complainant is shockingly referred to as respondent. Be that as it may what one can discern is that the appellant is simply raising one ground of appeal in respect of the conviction, which is that the alleged sexual act was consensual and that a permissible verdict of contravening section 70(1) of the Criminal Code should have been appropriate on account of complainant’s age if the court a quo believed appellant knew or appreciated the complainant’s age.

In respect of sentence the appellant is of the view that a fine or an order to perform community service would be in order. This we believe is premised on the basis that the appellant would have been convicted of contravening section 70(1) of the Criminal Code rather than the offence of contravening section 65(1) of the Criminal Code relating to rape.

The charge is that on 17 December 2015 at Maravire Village, Chief Nhema, Zaka, Masvingo the 23-year-old appellant unlawfully had sexual intercourse with the 15-year-old complainant Josephine Debwe without her consent.

The appellant and the complainant stayed in neighbouring villages. At the material time the complainant was in Form 2 at Mutsambwa Secondary School in Zaka. She was staying in Maravire Village with her siblings Shylene aged 13 years and Tadiwanashe aged 9 years. Their parents were based in South Africa.

The appellant stayed in Bvukurwa Village, Zaka. From the evidence led at the time appellant got to know the complainant when he was driving a pirate taxi between Roy and his local business centre. However, when the offence was allegedly committed he had relocated to Harare working at Borne Marche Supermarket and had just returned home on the day of the alleged rape.

It is not in dispute that in April 2015 the appellant met the complainant at Roy Turn Off as he was driving the pirate taxi. The complainant was waiting for a bus from South Africa presumably to receive parcels from her parents in South Africa. It is common cause that the appellant proposed love to the complainant who initially turned him down but after some persistence she gave in and his love proposed was accepted. The two exchanged telephone numbers. However, the complainant had known the appellant from 2013 when she came to stay at her rural home in Zaka from Harare and was in Grade 7.

According to the complainant after meeting at Roy Turn off in April 2015 and accepting the appellant’s love proposal she never met the appellant again until the date of the alleged rape on 17 December, 2015. The complainant’s evidence is that she briefly communicated with the appellant in April 2015 by sending him text messages. She said the love affair did not last a month. According to the complainant she terminated the love affair by texting the appellant. Her explanation for such conduct was that she had only accepted the love proposal as the appellant was nagging her at Roy Turn off and later decided to end it because the appellant was much older than her. The complainant said appellant had never visited her at her residence until the date of the alleged rape. The complainant’s evidence therefore is that when the alleged rape took place on 17 December 2015 she had long ended the love affair with the appellant in April 2015.

On the other hand, the appellant’s version is that the love affair was still in existence when the alleged rape occurred on 17 December 2015. In fact, the appellant said he had visited the complainant’s residence once after meeting her at Roy Turn off in April 2015.

Given the divergent versions of both the appellant and the complainant we are now obliged to outline what the State alleges happened and appellant’s defence outline.

The State alleges that on 17 December 2015 the complainant retired in her bedroom hut with her two siblings. The door of the bedroom hut was not locked.

It is not in dispute that a local woman, Fadzai Madzova and the appellant came to the complainant’s resident that night at 1900 hrs. Fadzai Madzova, a mother of one child, was known to the complainant and stayed at the local business centre. She is the one who knocked at the door of the complainant’s bedroom hut and identified herself prompting the complainant to open the door and attend to her. According to the complainant she was unaware Fadzai Madzova (Fadzai) was with the appellant.

The evidence of the complainant is that upon noticing the two she inquired what they wanted at night but neither Fadzai nor the appellant could proffer an explanation. She said as she stood by the doorway both appellant and Fadzai just laughed at her inquiry. The complainant said she implored the two to visit during the day and not at night and the two just laughed and left. She retired to bed.

It is not in dispute that the appellant returned to the complainant’s residence now alone that night at about 2200 hrs.

The complainant said she realised that there was an intruder when the unlocked door of her bedroom hut was pushed open. She said the intruder quickly held her and dragged her out of the bedroom hut as she cried for help but no one came to her rescue. As she was outside she identified the intruder as appellant as there was moonlight.

The complainant said she was taken behind her bedroom hut and forced to the ground. As she called out for help the appellant forcefully had sexual intercourse with her after tearing her skirt and lowering her pants. She bled from the vagina. As the appellant ravished her she still called out for help prompting her young sister Shyleen to wake up. Her neighbour Diana Bonus whom she called out initially did not hear her distress call. She said Shyleen found the appellant raping the complainant and then she ran to call Diana Bonus. When Diana Bonus arrived moments later the appellant had fled. She narrated her ordeal to Diana Bonus and they proceeded to the police that night to file a report. The complainant surrendered her town skirt and pant to the police which were both blood stained. During the trial these items were produced as Exhibits and besides the blood stains the court noted that the skirt was torn and was very dirty.

The complainant was examined by the doctor the following day on 18th December, 2015. The doctor noted that she was depressed and that her clothes were blood stained. In relation to her genetalia the doctor noted some lacerations and abrasions. She was still bleeding and her hymen had a tear which caused the bleeding. From those observations panile penetration was confirmed.

The appellant’s defence outline is not part of the record. Ms Manyika for the appellant made that concession and accepted however that its contents its well summarised by the trial Magistrate. The appellant was represented throughout the trial by Mr Shumba.

In his defence outline the appellant said after his initial visit to complainant’s residence with Fadzai, his second visit that night was now by arrangement with the complainant. He said the complainant came out of her bedroom hut on her own as the two were still lovers contrary to what complainant said that the love affair had ended long back in April 2015. The appellant said they sat near the complainant’s bedroom hut. He said the complainant was seated and he lay on complainant’s lap discussing the love affair as they had previously agreed to have sexual intercourse when he had telephonically discussed with the complainant. The appellant said it was unfortunate that on that night the complainant was menstruating. As a result, they could not have sexual intercourse.

The appellant said all hell broke loose when complainant’s young sister Shyleen came out to relieve herself and saw the two love birds enjoying each other’s company as the appellant lay on the complainant’s lap. He said Shyleen threatened to report what she had seen to their neighbour Diana Bonus. This caused the appellant to flee from the scene. The appellant denied engaging in sexual intercourse with the complainant at all that night or on any other occasion and attributed the blood stains on her skirt and pants to menstruation.

In her evidence the complainant insisted that the love affair with the appellant was very short-lived barely lasting a week in April 2015. She said besides having met appellant at Roy Turn off in April 2015 she never met appellant again until 8 months later on 17 December, 2015 date of alleged rape. She said she had last communicated telephonically with appellant in April 2015 when appellant was in Harare and denied that appellant visited her home other than on the date of alleged rape. The complainant insisted that the sexual act took place and was non-consensual. She explained that appellant literally dragged her out of her bedroom hut as she was on her knees crying out calling Shyleen’s name. The complainant said she resisted by biting the appellant but was overpowered and forced to the ground on her back. In the process her skirt was torn and her pants removed. She said she cried out calling for help throughout the rape and that Shyleen heard her distress call after which Shyleen came out indicating she was calling one Diana Bonus. The complainant said Diana Bonus (Tatenda’s mother) came within two minutes of being called by Shyleen but by then the appellant had fled. The complainant was still lying on the ground crying and she disclosed the rape to Diana Bonus and later to Mathew’s father that night.

The complainant said her ordeal at the hands of the appellant lasted about 5 minutes before Shyleen came out.

The thrust of the complainant’s cross examination was twofold. Firstly, that at the material time she was still in love with the appellant. She disputed this. Secondly, that sexual intercourse never took place that night. She insisted it did.

Shyleen who gave evidence using the close circuit television materially corroborated the complainant. Firstly, she said appellant first came with Fadzai just as they had retired to bed and that complainant attended to Fadzai’s knock. Shyleen said complainant asked what appellant and Fadzai wanted and that the two just laughed and left. As regards the appellant’s second visit Shyleen said she had fallen asleep when she heard the complainant crying out of their bedroom hut calling out her name. She peeped through the window and as there was moon light she saw appellant on top of the complainant. Shlyeen ran out of the hut and saw appellant. She shouted that she was going to report and went to call Dian Bonus. She was unaware of the love affair between appellant and the complainant.

Under cross examination Shyleen said all what she observed was that appellant was on top of the complainant with his trousers lowered to knee level. The complainant was crying, screaming calling out Shyleen’s name and that of Tatenda’s mother (Diana Bonus).

Diana Bonus (Diana) a neighbour to the complainant said she was asleep around 2200 hrs when Shyleen knocked at her bedroom window. Shyleen reported that the appellant (Silence) was on top of the complainant behind complainant’s bedroom hut. She woke up and ran to the scene. Diana found appellant not there. Instead the complainant was still lying down crying. The complainant related to her how the appellant had visited her twice that night and later dragged her out of the bedroom hut on the second visit and sexually molested her. Diana said she inquired if complainant was in love with appellant and her response was that she was not. Diana noticed complainant’s soiled, torn and blood stained clothes. She immediately called a male neighbour and took complainant to the police.

The appellant’s case was that he never had sexual intercourse with the complainant that night. He blamed complainant’s aunt one Maidei for fabricating the rape allegations as Maidei wanted appellant’s brother to pay seduction damages to Maidei’s daughter. The appellant insinuated that he was simply the sacrificial lamb because of the fight between his brother and Maidei.

The appellant insisted that the complainant was put up by Maidei to allege rape. This was new evidence never put to the complainant.

The appellant’s version was that after falling in love with the complainant in April 2015 he never inquired about her age but believed she was 17 years old. He also did not ask her level of education but knew she was at school. The appellant said in April 2015 he proceeded to Kwekwe and then to Harare where he was working. He said he came home on the day in question to collect certain documents from police at Zaka after securing a scholarship in Russia. All along, he said he communicated telephonically with his lover, the complainant, through Fadzai, as complainant no longer had a mobile handset. He confirmed that it is Fadzai who knocked at complainant’s bedroom hut on that night and identified herself.

The appellant said after complainant came out she indicated that her siblings were still awake and that the appellant should go and return around 2200 hrs that night, He later returned.

The appellant denied dragging the complainant and insisted all what happened was with complainant’s consent. He said sexual intercourse could not take place simply because complainant was menstruating. He confirmed that Shyleen came out and saw him after which Shyleen said she was going to report. The appellant said it is the complainant who advised him to flee from the scene. Thereafter appellant said he went to South Africa and only returned after 3 weeks at the instigation of his relatives who wanted him to come and answer to the rape allegations. Upon his return he surrendered to the police.

The appellant could not explain why he had to take Fadzai with him on his first visit to complainant’s residence at about 1900 hrs. The appellant seemed to change his story and said complainant alleged rape for fear of her parents as her sibling Shyleen had seen her with the appellant.

Fadzai was called as a defence witness. She stays about 20 km from the complainant’s home. Her evidence was that she only learnt in August 2015 that appellant and complainant were in love. She confirmed accompanying appellant to complainant’s residence at night on 17 December 2015 and that she is the one who knocked and identified herself at the complainant’s bedroom hut. She confirmed complainant advised her and the appellant to leave. She said it is appellant who told her that complainant had asked him to return later that night. She had no knowledge of what transpired on appellant’s second visit to complainant’s residence.

The evidence of appellant’s young brother Hekini Dhimbiri is irrelevant. He accompanied the appellant to complainant’s residence on appellant’s second visit but remained in the motor vehicle parked far away from the complainant’s residence.

In its judgment the court a quo properly identified the issues in contention. These are whether sexual intercourse took place between appellant and the complainant and if it did whether it was with the complainant’s consent.

The learned trial Magistrate properly analysed the evidence we have summarised and made findings of fact based on the credibility of the witnesses. The complainant and the State witnesses were deemed to be credible witnesses. A finding of fact was made that appellant had sexual intercourse with the complainant. The appellant’s evidence was dismissed as improbable.

In our respectful view this appeal totally lacks merit both in respect of the conviction and sentence. It is really disheartening to note that Ms Manyika, for the appellant persisted in arguing such a hopeless case. We say so because throughout his trial the appellant vehemently argued that sexual intercourse did not take place between him and the complainant. Now in the grounds of appeal and in her oral submissions the appellant has changed course and is now alleging consensual sexual intercourse. Surely the appellant is simply trying the waters, as it were. How can the appellant seek to be believed by this court when he is now singing a different tune or rhyme from the one he sang during the trial. Appellant cannot surely plead in the alternative as if it is in civil matters that sexual intercourse never took place and if it did it was with the complainant’s consent. No appeal court can counternance such a misguided submission.

We find no misdirection on the part of the court a quo. The complainant was properly assessed as a credible witness. She made a timeous report see S v Banana 2000 (2) ZLR 616.

The complainant’s evidence was materially corroborated by Shyleen and Diana. The medical evidence supports penile penetration. There is sufficient evidence to show not only that sexual intercourse took place but that it was non-consensual. The complainant cried out for help. Her clothes were torn, dirty and blood stained. Her conduct is not consistent with accused’s version of consensual sexual intercourse. We therefore find no misdirection as regards appellant’s conviction.

In relation to sentence one cannot seriously argue that appellant should be sentenced to pay a fine or to perform community service for a heinous crime like rape. Such a submission does not deserve any further comment. Suffice to say that it is clearly an abuse of the appeal process. The appellant in our view was lucky to be sentenced to 10 years imprisonment. He deserved at least an effective prison term of not less than 12 years.

It is for these reasons that we dismissed the appeal in its entirety for lack of merit.

Mafusire J. agrees ……………………………………..

Dube-Banda Nzarayapenga & Partners, appellant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners