State v Tawanda Chikova

### Preamble
1
HMA 41/18
CRB MSVR 258/18
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STATE

versus

TAWANDA CHIKOVA

HIGH COURT OF ZIMBABWE

MAFUSIRE J

Masvingo: 28 August 2018

Criminal review

MAFUSIRE J

[1]	The accused was charged with rape. He pleaded not guilty. He was not represented. He was convicted and sentenced to 13 years imprisonment with 2 years suspended for 5 years on the usual condition of good behaviour. We think the evidence was insufficient to sustain the conviction.

[2]	The accused was 36 years old. He is a maternal uncle to the complainant. The complainant was 17 years old at the time. She was in secondary school. She stayed with her parents. The accused ordinarily lived and worked in Botswana. When the alleged rape occurred he was visiting the complainant’s family, something he did regularly.

[3]	Virtually all the material facts were contested. According to the State Outline and the complainant’s evidence, the rape allegedly occurred on 5 March 2018. That was a Monday. That did not quite tally with the evidence of Tatenda Ndamba [“Tatenda”], complainant’s class-mate and friend. Tatenda was the first person to whom the complainant disclosed the alleged rape.

[4]	From Tatenda’s evidence the rape would have occurred on Sunday 4 March 2018. Standing alone, this little discrepancy would be of no moment. But it is not standing alone. This shall soon become apparent as further discrepancies are highlighted.

[5]	The rape allegedly occurred inside a shop allegedly operated by the complainant’s parents at Madamombe Business Centre, Chivi, Masvingo Province. Whether the shop was operational at that time or not was hotly contested. The complainant said it was operational and that it had only become non-operational later. The accused said it was no longer operational by that time. Tatenda said the complainant told her the rape had occurred inside the room the complainant was sleeping in. The court a quo skirted the point altogether. But again whether or not the rape occurred inside the shop or inside the complainant’s bedroom would not, by itself, decide the case. However, as also said before, such discrepancy is not standing by itself.

[6]	According to the State, the accused was present at the shopping centre on the day in question to collect some packet of biscuits that he had allegedly bought from the complainant’s mother at around 19:00 hours that evening. It was alleged the complainant’s mother had instructed the complainant to give the accused the packet of biscuits early the following morning. However, the State said, the accused had insisted on being given his biscuits that very evening. Whether or not the accused had bought the biscuits from the complainant’s family shop or elsewhere was seriously disputed. The complainant insisted the accused had bought from their shop. The accused insisted he had bought from elsewhere. The contradiction went unresolved.

[7]	The accused’s insistence that he had bought the biscuits from a neighbouring shop seemed consistent with his assertion that the shop previously operated by the complainant’s family had since become non-operational. There is something said by the complainant herself that seemed to support the accused’s version on this particular point. Led by the prosecutor in her in evidence-in-chief she said:

“I went to school and came back. In the evening [accused] went to buy bread and biscuits. My young sister asked him why he had had bought biscuits from another shop. [Accused] stated he wanted to buy biscuits from our shop. He said ...”

[8]	The complainant’s younger sister would not be taking the accused to task for buying next door if he had not. Again it is just a subtle detail, not decisive by itself. But there is more.

[9]	The details of the rape, from the State’s evidence, were that the accused, insisting on being given his biscuits that very evening, instructed the complainant to open the shop. The complainant’s mother was said to have retired to bed. It was when the complainant had opened the shop and had gone behind the counter to collect the biscuits that the accused is said to have also entered the shop, shut the door behind him and proceeded to rape the complainant.

[10]	According to the State, the accused grabbed the complainant, closed her mouth with his hand and shoved her beneath the counter. She fell down in a kneeling position. He lifted her skirt to stomach level; lowered her pant to knee level; mounted her from the back and had sexual intercourse with her without her consent. The evidence says nothing about any possible struggle or resistance or screaming or shouting by the complainant.

[11]	There is some little contradiction in what the accused’s immediate action was soon after the rape. The State Outline said he threatened to kill the complainant if ever she disclosed the matter to anyone. Tatenda, who was narrating what the complainant had told her, said the accused later brought a “top” [i.e. blouse] which he wanted to give to the complainant but that the complainant had turned it down. The complainant’s own version was a bit of both. In her evidence-in-chief she first said after the rape the accused had gone outside; that she too had gone outside and retired to bed; that he had then followed her and threatened to kill her or her mother if ever she reported the rape to anyone. But reminded by the prosecutor that she had once mentioned a blouse, the complainant said:

“After the rape [accused] had apologised and that he had bought me a bag and a blouse which never materialised. I kept quiet. He then threatened me.”

[12]	The complainant said during the rape she felt pain. She said she bled and soiled her pant. Asked to produce the stained pant she said she had washed it when she had taken a bath. All this was coming only in cross-examination, not in her evidence-in-chief. But perhaps more importantly, on the medical report it was noted that the complainant had previous genital sexual experience. No injury had been observed. The complainant’s hymen was said to have been eroded and not intact. The hymenal tears were not fresh. That is not to say the complainant was not raped. But such evidence is hardly proof of rape beyond any reasonable doubt.

[13]	The complainant said after the rape she went to sleep. She did not tell her mother. She did not tell her younger sister. She only told Tatenda at school. According to Tatenda, this was on 4 March 2018, a Monday. But 4 March 2018 was a Sunday, not a Monday. This could be a harmless mix-up.

[14]	About the disclosure to her, Tatenda said the complainant had earlier on on that day indicated that she wanted to talk to her. However, she [Tatenda] had indicated that they would talk later. But they had never quite got the chance again. It had only been on the following day, Tuesday, after Tatenda had enquired from the complainant what it is that she had wanted to tell her the previous day that the complainant had finally disclosed the alleged rape.

[15]	We avoid an armchair scrutiny of the complainant’s conduct. But at 17 years of age, she was nearly an adult. She could have done better. She knew she had been ravaged. She was expected to report at the earliest opportunity. But she seemed too casual about the whole experience. Her conduct is all the more incredible if regard is had to what she did two days after the alleged rape and what she did not do in relation to another unsavoury incident that allegedly occurred a day before the alleged rape.

[16]	The complainant said a day before the alleged rape, the accused had come into her room and had started fondling her breasts. She had told him that she was not interested. But she had told no one about it.

[17]	Then two days after the alleged rape the complainant eloped to her boyfriend. This was common cause. She said she had sent him a message that the accused had abused her. The boyfriend had reacted by instructing her to elope to his homestead. She said she complied because she feared the accused would rape her again. On this particular point the accused said the complainant had gone missing on the Tuesday. He had reported to the police that she had gone missing. The complainant said the accused had come looking for her at the boyfriend’s place. Later on in the afternoon the police and her mother had come to fetch her from the boyfriend’s place to take her back home.

[18]	The complainant’s boyfriend’s reaction to the alleged rape report was rather strange. Instead of advising her to report to the police, he is said to have instructed her to elope to him. The court a quo made a passing reference to the issue. It said indeed the complainant had eloped to her boyfriend’s homestead but that this had no link to the fact that she was lying against the accused. One is lost as to what the court meant by that.

[19]	The record does not show how or on whose report the accused was arrested. The accused completely denied ever having had sexual intercourse with the complainant. He said as his sister’s daughter, he regarded her as his own daughter. He said he had been called to the complainant’s homestead by the mother in order to look after the family’s chickens. He admitted having been at the shopping centre on the evening of the alleged rape but that he had retired to bed soon afterwards. He said he had slept in the same room with one Brighton.

[20]	No one enquired as to who this Brighton was. Neither the prosecutor nor the court did. Needless to say Brighton was not called to give evidence. The complainant’s mother was not called to give evidence either, if only to clear up the controversy whether or not the family shop had still been operational at the time. Tatenda said after the complainant had told her about the alleged rape, she in turn had informed a senior teacher. This teacher was not called. Yet the nature of the accused’s defence was such as to put the credibility of the complainant into question.

[21]	The prosecutor made capital out of the accused’s alleged failure to challenge some aspects of the complainant’s evidence: like the complainant’s claim that her boyfriend had been in South Africa when she had eloped to his homestead when he [the accused] had said the boyfriend had visited the complainant the previous day; like the accused’s claim that the complainant’s family shop had not been operational at the material time; like the complainant’s claim that the shop had been operational because the shop licence had been renewed; like the accused’s alleged attempt to buy the complainant’s silence by offering her a blouse, and so on.

[22]	The court a quo’s analysis of the evidence was perfunctory. It seemed to have been overly impressed by the prosecutor’s tactics above. Among its reasons for conviction was its conclusion that the accused was not an honest witness allegedly because he had dismally failed to cross-examine witnesses on some pertinent points. The court said this alleged failure showed that the accused was in agreement with the State evidence.

[23]	The court’s approach was misdirected. The record shows that as a lay person the accused did reasonably well to bring out his defence. He did reasonably well to ask some useful questions on some salient points. The State case had holes. The complainant was unimpressive. The State did not eliminate the danger of false incrimination. Material witnesses were not called to close all possible escape holes. No reason was given why the complainant did not report the alleged rape at the earliest opportunity, particularly to her own mother.

[24]	The quantum of the evidence was insufficient to sustain a conviction. In the circumstances, the conviction is hereby set aside. The sentence is hereby quashed. The accused is entitled to his immediate release.

28 August 2018

Hon Muremba J: I agree	_____Signed on original _________