Nigel Mandishora v The State

### Preamble
1
HMT 32-21
CA 34/20
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NIGEL MANDISHORA

versus

THE STATE

HIGH COURT OF ZIMBABWE

MWAYERA & MUZENDA JJ

MUTARE, 19 May 2021 and 3 June 2021

Criminal Appeal

C. N Mukwena, for the appellant

Mrs T. L Katsiru, for the respondent

MWAYERA J: The appellant was arraigned before the Regional Magistrate Rusape facing allegations of rape as defined in s 65 of the Criminal Law (Codification and Reform) Act[Chapter 9:23], in that on 22 October 2019 and at House number 399 Tsanzaguru Rusape, the accused unlawfully had sexual intercourse with Tanatswa Tandi a female juvenile aged 16 without her consent or knowing that she had not consented to it or realising that there was a real risk or possibility that she might not have consented to it. Having pleaded not guilty the matter proceeded to a fully fledged trial. The appellant was found not guilty of rape and was acquitted. He was however found guilty of having extra marital sexual intercourse with a young person under the age of 16 as defined in s 70 of the Criminal law (Codification and Reform) [Chapter 9:23]. He was sentenced to 24 months imprisonment of which 6 months imprisonment was suspended on the usual conditions of good behaviour leaving an effective 18 months imprisonment. Dissatisfied with both conviction and sentence the appellant launched the present appeal with the following grounds of appeal.

Grounds of Appeal Against Conviction

The court a quo made a gross misdirection of fact in making a finding that the complainant never told the appellant that she was 16 at the time of sexual intercourse thus finding her to be a credible witness in that regard and yet in all other aspects he found her to be an unreliable witness. Credibility cannot be accepted in some aspects of a witness ‘evidence whilst in some it is found to be lacking. The misdirection is so gross as to amount to a misdirection at law.

The court a quo clearly made a misdirection of fact which misdirection amounts to a misdirection of law in holding that the complainant looked 15 when she looked 17 and such misdirection amounts to a misdirection of law. Appellant applies that photograph shown to court be produced before the Appeal Court for the same fact to be seen by it.

The court a quo erred in fact in finding that because the appellant did not ask for complainant’s birth certificate, he cannot say he believed complainant to be 16. That reasoning is wrong in that appellant could not have sought to verify through complainant’s birth certificate when complainant told him she was 16.

The court a quo erred in fact in shutting itself to very obvious possibility that complainant having been found to have lied about rape that never took place she could have also lied to the appellant that she was 16.

Grounds of Appeal Against Sentence

The court a quo erred at law in failing to take into account the following factors, that

The complainant was only 14 days shy of being 16.

The appellant was not married at the time.

The appellant used protection.

The court a quo’s sentence is harsh and induces a sense of shock as there is no justification in the circumstances for imposition of a jail term.

The court a quo made use of precedent whose circumstances potentially differ with the circumstances in the present case and that is clear misndirection of law which must be interfered with by this honourable court.

The court a quo erred in fact in sentencing the appellant on the basis that she looked much younger when she clearly looked in the region of 17 thus sentence must be interfered with as this is a clear misdirection on the part of the court a quo.

Proceeding A quo

It is apparent from the record of proceedings that the appellant denied the rape allegations on the basis that he proposed love to the complainant and the latter accepted his proposal. He pointed out that when he had sexual intercourse with the complainant it was by consent. The appellant further denied having extra marital sexual intercourse with a young child under the age of 16 since the complainant had divulged to him that she was 16 the appellant contended that the report of rape by the complainant was not voluntary but only came up because the complainant was pressurised by her father to allege rape.

The court a quo in acquitting the appellant on the ape allegations made pertinent observation inter alia that the complainant went to the appellant’s place on her own free will. She instead of go to school spend the day with the appellant and only left after 300pm when other pupils would have dismissed from school. There was a trail of interaction between the appellant and the complainant who at some stage had gone out together for a photo shoot session in Rusape town. The trial court properly concluded that from the evidence on record the complainant was not raped but had consensual sexual intercourse with the appellant. The report of rape was only because of pressure from parents in particular the complainant’s father. The complainant was generally held as an incredible witness who was economical when it came to telling the truth. At some stage she had falsely laid a charge of rape against Nomore Antonio because of fear of her parents. She oscillated from saying she did not report the present matter because the appellant had threatened her with death to saying that she did not disclose because she feared appellant would disclose to her parents that they were lovers. The degree of inconsistencies in complainant’s testimony made her version unreliable. The appellant on the other hand was consistent that he had consensual sexual intercourse with the complainant who advised him she was 16. The trial court in the absence of evidence seemed to have entertained the fact that as provided for by law a competent verdict should ascribe. It is clear the fourth schedule as read with s 275 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] provides for permissible verdict when one is charged with another offence he may be convicted of the permissible verdict. This is however subject to proof of that permissible verdict beyond reasonable doubt by the state case.

In this case the complainant’s evidence was not credit worthy and there was no basis of rejecting the appellant’s assertion that his girlfriend the complainant had advised him she was 16. That complainant was in form 3 is certainly not proof that she was below 16. In fact the manner she carried on with the appellant was consistent with appellant’s evidence and aserton that she said she was 16. The court a quo fell into the era of generalisity that form 3 students are below 16. The complainant herself did not make a voluntary report but was pressured to report. I am alive to the fact that in appropriate circumstances when a witness misleads the court by not being truthful on some portions of evidence, the court can still competently reliable on some aspects of the remaining portions of evidence which are true. S v Nyirenda HB 86/2003 and S v gardener 1982 (2) ZLR 290.

However in this case the record does not reveal any evidence by the complainant worth relying on in support of the state case of having extra marital sexual intercourse with a child under 16. In the Gardener case (supra) the court made pertinent remarks commenting on lies or falsehoods in a witness’s testimony. It stated:

“It is of course trite that simply because a witness is shown to have lied in certain respects the court should not without much ado reject the whole evidence if the aspects of which the witness has lied are by comparison peripheral or minor when the remainder of that witness’s evidence is still entitled to be examined albeit with rather grater care than if it had not been shown to have lied at all. On the other hand, if the aspects of which the witness has lied goes to the root of his story, or clearly of major importance to the story as a whole then he cannot be regarded as a credible witness. If therefore, the area in respect of which complainant moved away from the truth where areas fundamental to her story as a whole then it is a serious misdirection for the magistrate to say that he finds the truth to lie somewhere else.”

In the present case the untruths presented by the complainant are so numerous and fundamental that the totality of her evidence ought to be rejected to avoid the danger of false incrimination. The complainant lied about reasons for not reporting the rape, lied that she had been drugged, she lied about how she came to be with the appellant, lied about photograph which she had denied and only accepted on realising they were on the phone, she lied that she never had sexual intercourse before contrary to the medical report. The complainant generally shied away from truths in fundamental areas of her version such that it would be misnomer and misdirection to accept that she did not tell the appellant that she was 16. The evidence of the state case fell short of proving the guilt of the appellant beyond reasonable doubt, the views expressed in S v Dhlamini HMA 05/2018 apply with equal force here. It was stated:

“The issue which should have loomed large in the mind of the trial court is to exclude the possible danger of false incrimination in this case.”

In the present case this is so because accused and complainant were in love. The explanation tendered by the accused in this case that the complainant advised him she was 16 and was only testify against him because of pressure from the father is reasonably true. Moreso when viewed with the totality of evidence of the complainant and their encounters were not impromptu but rather planned.

Application of the law to the facts

This court is called upon to determine whether or not the appellant was properly convicted and sentenced for having extra marital sexual intercourse with a young child as defined in s 70 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

It is apparent the appellant was convicted of the permissible verdict after acquittal of the main charge of rape. A close look of the record as discussed earlier above reveals that the complainant was not credible. The question of credibility is generally the province of the trial court. In the case of S v Muroyi SC 11/20 it was stated:

“As regards credibility of witnesses the general rule is that an appellate court should ordinarily be loath to disturb findings which depend incredibility. See also Lovemore Dehwa v S HH 206/14 and S v Mpetha and Others 1983 (4) SA 262. In casu, the court a quo properly assessed that the complainant was inconsistent and economical in her evidence. The court properly held  rape could not be sustained as this charge is anchored on the complainant’s evidence which is then corroborated by recipients of report medical and other evidence. The complainant’s evidence and credibility is central in sexual offences.

Considering that complainant was not truthful at every turn then one wonders how the trial court come up with a conclusion that the complainant did not tell the appellant that she was 16. The conviction of having extra marital sexual intercourse with a child under 16 in not anchored on evidence on the record but appears to be a speculative assumption that since the complainant was in form 3 the she must be 16 and the appellant knew she was below the age of 16. This however is in stack contrast with the appellant’s version that the complainant advised him she was 16. Going by the manner they carried on in the love affair and considering the untruthful stance taken by the complainant it cannot be disputed she gave her age to the appellant as 16.

In this case considering the evidence placed before the court the conviction is not anchored on evidence of guilty proved beyond reasonable doubt. It does not necessarily follow that where consensual sexual intercourse occurred pursuant to an acquittal of rape the competent verdict of contravention of s 70 follows. The essential elements of having extra marital sexual intercourse albeit consensual with a child knowing that the child is below 16 have to be established beyond reasonable doubt. There is no evidence on record a quo warranting the conviction of the appellant on the competent verdict. That the complainant did not ask for complaint’s birth certificate is expecting the appellant to prove his innocence. There was no reason for the appellant to doubt that complainant was 16. The complainant was materially unreliable and a conviction in the circumstances what not free from the dangers of false incrimination. In any event the charge sheet itself on reflecting the main charge of rape alluded to the accused having had sexual intercourse with Tanatswa Tandi a female juvenile aged 16 without her consent knowing that she had not consented to it or realising that there was a real risk or possibility that she might not have consented to it. (Underlining my emphasis). This gives credence to the appellant’s assertion that complainant advised him she was 16.

Considering the unreliable evidence given by the complainant who was held to be inconsistent and not credible by the court a quo, it was not safe to convict. I will not be belaboured to consider sentence since the conviction cannot sand.

Accordingly it is ordered that:

The appeal be and is hereby upheld.

The decision of the court a quo is set aside and substituted as follows:

The accused is found not guilty and acquitted

Bvuma & Associates, appellant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners