Jennifer Gamuchirai Muchenje v The State

### Preamble
1
Judgment No. SC 132/20
Criminal Appeal No. SC 200/18
Criminal Appeal No. SC 200/18
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REPORTABLE   (124)

JENNIFER      GAMUCHIRAI      MUCHENJE

v

THE      STATE

SUPREME COURT OF ZIMBABWE

GARWE JA, HLATSHWAYO JA & MAKONI JA

HARARE: JULY 27, 2018, NOVEMBER 12, 2019 & OCTOBER 12, 2020

L. Uriri, for the appellant

S. Hashiti, for the respondent

MAKONI JA:     This is an appeal against the whole judgment of the General Court Martial handed down at 1 Commando Regiment Harare on 27 September 2017 by Lieutenant Colonel Bhebhe. The appeal is in terms of s 80 of the Defence Act [Chapter 11:02] [The Act]

BACKGROUND

The appellant was a regular member of the Zimbabwe Defence Forces (ZDF) holding the rank of a Sergeant. On 14 February 2017 the appellant was arraigned before the Court Martial facing a charge of contravening Para 37 of the First Schedule to the Defence Act [Chapter 11:02] [The Ac] that is;

“Disgraceful conduct.”

The particulars of the charge were that she, in Kuwadzana and Marlborough in Harare, during the period extending from 1 May 2016 to 16 August 2016, being a female, engaged in a lesbian affair with another female adult,  Letina Nyakadzumbu who is married to Peter Nyakadzumbu which conduct was disgraceful.

In the alternative she was charged with contravening Para 38 of the First Schedule to the Defence Act [Chapter 11:02], namely:

“Conduct prejudicial to the military discipline”

It was alleged that she, in Kuwadzana and Marlborough in Harare, during the period extending from 1 May 2016 to 16 August 2016 being, a female, engaged in a lesbian affair with another female adult, one Letina Nyakadzumbu, who is married to Peter Nyakadzumbu, which conduct was prejudicial to military discipline

The backdrop to the charge was that on   19 August 2016, a local newspaper, H-Metro, published a story with the headline “SOLDIER IN GAY STORM.” The story exposed an alleged lesbian affair between the appellant and one Letina Wadzanai Nyakadzumbu (Letina), wife to Peter Nyakadzumbu (the complainant). The newspaper article published WhatsApp love messages allegedly exchanged between the two women. It also leaked pictures of the two at different places and in what the paper described as compromising positions.

This newspaper article triggered investigations into   the matter by the ZDF. The investigations revealed that the appellant’s alleged lover, Letina, had confessed having the love affair with the appellant to one Pastor Nengomasha. The affair was alleged to have commenced around May 2016 until the time of the publication of the article.

It was also discovered that, during the time of their affair, and, as a sign of appreciation for Letina’s love for her, the appellant had included her as a beneficiary on her PSMAS medical aid. The Appellant however, then removed Letina from the medical aid cover in September 2016 after the publication of the story. Consequent to the information and evidence that was gathered through the investigations, the appellant was charged with the above offences.

The appellant pleaded not guilty to both the main and alternative charges and after a full trial she was found guilty of disgraceful conduct as described under para 37 of the First Schedule to the Defence Act [Chapter 11:02]. She was sentenced as follows;

Reduction in rank to first year sapper.

Discharge from the defence forces with effect from 27 September 2017.

18 (eighteen) months imprisonment.

Aggrieved by the decision the appellant noted the present appeal.

THE GROUNDS OF APPEAL

In her notice of appeal, the appellant has raised the following grounds of appeal.

“Ad Conviction

The court a quo erred and misdirected itself by making a finding that the State had discharged its onus of proving the essential elements of the crime beyond reasonable doubt in that it was not established that the appellant was in an intimate relationship with the complainant’s wife. Additionally, there is no proof in the record that the conduct was cruel, indecent or unnatural.

The court a quo erred in fact and in law by proceeding to make a finding of guilty on the charge when the conduct complained of (which conduct was denied) was done in private and in line with freedom of association and right to privacy.

The court a quo erred in fact and in law by accepting evidence of the complainant and his wife which was based on falsehoods and inadmissible hearsay evidence. For instance, the court a quo did not appear to be alive to the possibility of false incrimination by the complainant since the matter had been published in a sensational manner in a tabloid. The court a quo failed to bear in mind that none of the state witnesses could conclusively point to the existence of an intimate relationship between the appellant and complainant’s wife.

The court a quo erred and misdirected itself by drawing incorrect inferences from the facts, for instance by erroneously concluding that the pictures in the H-Metro publication and the addition of complainant’s wife to appellant’s medical aid scheme established the existence of an intimate relationship between the appellant and the second state witness.

The court a quo erred in fact and in law by making findings based on inadmissible evidence in general and in particular regarding what the investigating officer was allegedly told by various people who were never called to testify.

The court a quo erred in fact and in law by totally disregarding the appellant’s defence without any tangible and reasonable basis for so doing and without clear evidence that she was indeed in an intimate relationship with the complainant’s wife. The court a quo erred further in not taking into account that the state had totally failed to disprove the appellant’s defence.

The court a quo misdirected itself in convicting the appellant of the offence charged when the facts did not clearly disclose the offence or any offence at all.

The court a quo in convicting the appellant of the offence of violating para 37 of the First Schedule of the Defence Act when in actual fact the paragraph is so wide, so vague and so overbroad as to make it difficult for anyone to know what constitutes the offence. It thus cannot be a competent and legally proper offence and tends to violate the right to protection of the law.

Ad Sentence.

The court a quo erred in imposing a sentence that is disturbingly disproportionate to the gravity of the crime, that is to say the sentence is manifestly excessive and so harsh as to cause a sense of shock.

The court a quo misdirected itself by over-emphasising the appellant’s crime and under-estimating the “person, character and circumstances of the crime” resulting in a miscarriage of justice.

The court a quo erred and misdirected itself by failing to consider other non-custodial forms of punishment like a wholly suspended sentence, a fine or any lesser punishment thereby occasioning a substantial miscarriage of justice.

The court a quo misdirected itself by failing to take into account the mitigation by the appellant including her health condition and did not reduce the sentence imposed as a result of the mitigatory factors which it totally ignored including the fact that she was a first offender.

The court a quo erred and misdirected itself in imposing three separate effective punishments that is to say, imprisonment, discharge from the Zimbabwe Defence Forces with ignominy and reduction in rank from sergeant to first year private to the prejudice of the appellant.”

PROCEEDINGS IN THE COURT A QUO

The State led evidence from the following witnesses:

Peter Nyakadzumbu, the complainant, was husband to Letina. They were married under the Marriages Act [Chapter 5:11]. They had been married for 10 years and had three children. His evidence was to the effect that he was contacted by a pastor who advised him about the relationship between his wife and the appellant. The pastor advised him that his wife wanted to confess to the issue. When he got home his wife admitted having a relationship with the appellant. They had an altercation and his wife left the matrimonial home. They were later called by Colonel Chigumira who counselled them. That is when he got to know that his wife was on the appellant’s medical aid. His wife never had a bleeding problem as alleged by the appellant. He also commented that his wife had changed her behaviour towards him and would prefer to spend more time with the appellant rather than with him

Letina Wadzanayi Nyakadzumbu confirmed being married to the complainant and that they had three children. She confirmed that she was in a love relationship with the appellant for about two months. The appellant had a misunderstanding with one of her friends by the name Hazel who threatened to publish the story about the relationship in the newspapers. That is when she called her pastor to their home and confessed about the affair to the pastor in the presence of the appellant. She sought the assistance of the pastor to inform her husband. Her husband then came home and asked her to leave the matrimonial home. She did and days later an article came out in the H-Metro. She was then contacted by the appellant and advised that they should meet at Colonel Chigumira’s office.

She told the court that she did not have sexual intercourse with the appellant neither did they kiss. She confirmed that they would hug. She remarked that the relationship was still young.

She confirmed being made a member of the accused’s medical aid and that she was never sick. She was made a beneficiary because of their relationship. There were no conditions attached. She was removed after the issue had surfaced. She confirmed that the photographs that appeared in the H-Metro depict the appellant and herself. She also confirmed that the WhatsApp messages published in the article were exchanged between herself and the appellant.

She explained that she is the one identified as “my all” in her (the appellant’s) mobile phone. She had saved the appellant’s mobile phone number in her phone as “Lee”.

She also revealed that the appellant was her second lesbian lover.

Colonel Chigumira testified that he was approached by one Hazel who told him about the affair between the appellant and Letina and that appellant was threatening the complainant. He decided to invite the appellant and Letina to come to his office the following day so that he could refer them to the Chaplain for counselling. He was concerned that the issue might tarnish the image of the ZDF and that it might lead to the breakdown of the complainant’s marriage. When the parties came to his office the following day, the issue had already been published.  There was not much else he could do other than to refer the parties to the Chaplain. He confronted the appellant who admitted having a relationship with the complainant’s wife but she denied threatening the complainant. He denied ever soliciting for some money from the appellant to cover up the issue.

Colonel Mutevera testified that she was the investigating officer in the matter. She compiled a docket for disgraceful conduct. She interviewed the complainant who informed her that he had been advised by a pastor that his wife was having a relationship with the appellant. She further interviewed Letina who confirmed the story. During the investigations, she gathered from Hazel that she had accessed the appellant’s phone when they were in a bar and copied the photos and the WhatsApp messages from the appellant’s phone. She enquired of the appellant how they would relate and she (appellant) explained to her that she would use her finger to insert into the private parts of Letina. She also told the court that the appellant had assaulted one Charity after she learnt that she (Charity) was going to give evidence confirming the relationship.

The appellant gave evidence during which she denied having a lesbian relationship with Letina but admitted that they were related as cousins. She said Letina proposed love to her and she rejected her.

She said the story was published by Moreblessing also known as Hazel as a way to fix her. She had been made to join a lesbian/satanist group called Pasipiti by Hazel. She was also invited to attend a party for the Pasipiti members where she noted some strange events. She ran away from the party and exited from the group. Hazel was not amused.

She confirmed going to Colonel Chigumbura’s Office. She said he asked her for some money in the sum of $1 500-00, so that Hazel and him would not publish the story. She told him that she did not have money and then she left.

She confirmed putting Letina on her medical aid. She explained that Letina had a bleeding problem as a result of an abortion. They agreed that Letina would repay the subscription fee of $ 8.00. She removed Letina from her medical aid after the publication of the article because she was warned not to speak to Letina during the investigations. She thought she would encounter problems in recovering the subscriptions from Letina.

Regarding the warned and cautioned statement that she made she said when they got to the court martial, the investigating officer told her not to disagree with anything that would be said as she was going to be given an opportunity to state her case later.

She denied assaulting Charity and said that instead she (Charity) had deposed to an affidavit apologising for her involvement in the publication of the article.

DETERMINATION OF THE COURT A QUO

The court a quo found the appellant guilty of the main charge that is “Disgraceful conduct”. It was the finding of the court a quo that the confirmed warned and cautioned statement proved that she was involved in a lesbian relationship with Letina. She did not challenge the admissibility of the statement. It also took into account that she had added Letina as a beneficiary on her medical aid and had removed her immediately after the matter had surfaced. It further found that the fact that she was in love with another woman is against “standard morality” and that such conduct is disgraceful and does not conform to acceptable standard of military behaviour.

The court a quo rejected the appellant’s story that it is actually Letina who proposed love from her and she refused. It found that despite the appellant having been made to join a Whatsapp group of lesbians against her will, she still went on to attend a party at Cleveland where she claimed that strange things would happen such as being made to drink a reddish drink. It found against her that she did not report the strange happenings to the Police or to her superiors.

After conviction the appellant submitted the following factors in mitigation. That she was a first offender in respect of such an offence. She had been previously convicted of disobeying a lawful command and sentenced to four days extra regimental duties. She had served in the ZDF for eleven years. She was a Combat Engineer and an instructor in the engineering school. She became the best female student in the male dominated field of demining and bomb disposal. She was at one point attached to the Presidential Guard and worked with the Presidential Guard escort in the bomb disposal squad. She was a sapper otherwise known as a combat engineer.

With regards to her personal circumstances she told the court a quo that she   has one child and other dependents to look after. She is of ill health as she had developed a cyst which required urgent surgery. The offence was committed during her private life and not during the course of her duties in the organisation. It was just a relationship and she did not consider marrying Letina neither did they engage in sexual intimacy. She prayed for forfeiture in seniority of rank coupled with a fine.

In aggravation the State submitted that the appellant had been convicted of a serious offence which the State described as “bizarre” in the history of the military. The issue was published in the H-Metro thereby tarnishing the image of the ZDF. The incident traumatised the husband of Letina and will continue to do so for the rest of his life. He had to receive some counselling immediately after the incident. Moreover the appellant was not a first offender. It called for a deterrent sentence to deter likeminded offenders. It further submitted that the accused had shown that she is not fit to continue with her duties. It proposed a sentence of reduction in rank and a discharge from the ZDF.

The Court Martial, in justifying the sentence imposed on the appellant, stated that the conduct was disallowed by the Bible as well as the Defence Act [Chapter 11:02]. It found it appropriate to impose the sentence that it did.

SUBMISSIONS BEFORE THIS COURT BY THE APPELLANT

Mr Uriri, for the appellant, submitted that the appellant was convicted on a charge of disgraceful conduct for having engaged in a lesbian relationship with the complainant’s wife. There was no evidence upon which a court, acting properly, would have convicted the appellant on the charge. He submitted that lesbians engage in sexual activities as between themselves. Lesbianism does not refer to sexual preference but to sexual conduct. For his proposition he relied on the case of National Coaliton for Gay and Lesbian and Anor vs Minister of Justice Ors 1999 (1) SA 6 at 43 para 75-76. He contended that, in casu, the totality of the evidence was that there was no sexual liaison between the two. The most that the State proved was that there was sexual affinity as opposed to sexual liaison.

He further contended that it is not clear what extra curial statement the President was making reference to, in his judgement, which proves the lesbian relationship. There is, on record, the confession allegedly made to a pastor and the warned and cautioned statement.

He further submitted that Letina denied the relationship to the H-Metro. The appellant denied the relationship. There being no other direct evidence, there could be no finding that a lesbian affair existed. Mr Uriri was very clear that he did not want the matter to be referred to the Constitutional Court.  He further submitted that there was nothing intently wrong with being a lesbian. For this proposition he referred to V vs V 1998 (4) SA 169.

He further contended that the court has to look at the private life of the appellant as against the execution of her duties in the ZDF.

He concluded by submitting that the criminalisation of such conduct is against the Constitution of Zimbabwe. Paragraph 37 of the Act is over broad. What constitutes a crime or disgraceful conduct is left open to the arresting officer. This violates the right to equal protection and benefit of the law.

As regards sentence, Mr Uriri submitted that it was so gross and unreasonable that it induces a sense of shock and horror. Even the judge advocate dissociated himself from the sentence. The penalty proposed by the defence officer would have met the justice of this case taking into account all the mitigatory features submitted by the appellant.

SUBMISSIONS BY THE RESPONDENT

Mr Hashiti submitted that the charge of disgraceful conduct is a valid charge. Facts constituting the charge may vary but that cannot be a basis for a constitutional referral of the matter.

He further contended that the appellant admitted to engaging in conduct that is disgraceful in her confirmed warned and cautioned statement. He further submitted that the charge was that the appellant’s conduct was offensive to military discipline. She was not being punished for being lesbian. If one acts in a manner that affects military discipline, then the conduct is disgraceful. The matter was headline news and that brought the ZDF into a private issue.

He also submitted that other than the confirmed warned and cautioned statement, which was not challenged, there was the viva voce evidence of witnesses including Letina and her husband, the pictures and WhatsApp messages which were not totally disowned. He argued that it is a settled principle that credibility cannot be an issue on appeal.

As regards sentence, Mr Hashiti submitted that the court can only interfere with sentence if it interferes with conviction. He relied on s 82 of the Act for this proposition.

ISSUES FOR DETERMINATION

The appellant’s grounds of appeal can be reduced to two issues namely;

Whether or not the state managed to prove the appellant’s guilt beyond a reasonable doubt, that is, whether or not the appellant engaged in a lesbian relationship with Letina and whether such conduct constituted disgraceful conduct

Whether or not the sentence imposed was so excessive as to induce a sense of shock and outrage.

WHETHER OR NOT THE STATE MANAGED TO PROVE THE APPELLANT’S GUILT BEYOND A REASONABLE DOUBT

Paragraph 37 to the First Schedule provides

37. Any member who disgracefully conducts himself in a cruel, indecent or unnatural manner shall be guilty of an offence and liable to imprisonment for a period not exceeding two years or any lesser punishment.

The essential elements of the charge under s 37 can be summarized as follows

any member

who disgracefully conducts himself or herself

in a cruel, indecent or unnatural manner

It is common cause that the appellant was a member of the ZDF. The evidence led before the court a quo established that the appellant engaged in an affair with Letina. This evidence was in the form of the confessions before the pastor, Col Chigumbura and as contained in the appellant’s confirmed warned and cautioned statement wherein she admitted the offence and that two   only terminated the relationship after realising that what they were doing was “evil and against God’s will”. I must observe that the appellant’s warned and cautioned statement was so detailed which details could only have been furnished by someone involved in the matter. She even denies some of the messages attributed to them by the H. Metro. She also puts in issue the length of the relationship which the paper reported as a period of one year. Further evidence was in the form of the viva voce evidence of the complainant and Letina, the photographs, the WhatsApp messages and making Letina a beneficiary on the appellant’s medical aid.

The court was not invited and correctly so, to interfere with the factual findings made by the court a quo. The position in this regard is settled. In Zinwa vs Mwoyounotsva       SC 28/15 para 16, the court held

“It is settled that an appellate court will not interfere with factual findings made by a lower court unless those findings were grossly unreasonable in the sense that no reasonable tribunal applying its mind to the same facts would have arrived at the same conclusion; or that the court had taken leave of its senses; or; put otherwise, the decision is so outrageous in its defiance of logic that no sensible person had applied his mind to the question to be decided could have arrived at it; or that the decision was clearly wrong.”

Similarly, this Court was not asked to interfere with the findings of credibility of the witnesses. In Chibwanda v Chibwanda SC 13/84 this Court stated: -

“It is trite in our law that an appellate court will not interfere with findings of fact made by a trial court and which are based on the credibility of witnesses. The reason for this is that the trial court is in a better position to assess the witnesses from its vantage point of having seen and heard them. See Hughes vs Graniteside (Pvt) Ltd S-13-84. The exception to this rule is where there has been a misdirection or a mistake of fact or where the basis the court a quo reached its decision was wrong.”  Attention is also drawn to the case of S v Katsiru HH 36/07.

In casu, the court martial, when assessing the credibility of the witnesses, had the advantage of seeing and hearing them, unlike this Court. More importantly, the evidence of the witnesses was corroborated by the documentary evidence led. The evidence portrayed in the photographs was admitted without challenge from the appellant. Such evidence is admissible in terms s 279 of the Criminal Procedure and Evidence Act [Chapter 9:07].

Having said the above, the question that arises is whether, on the evidence before it, the court martial was correct in convicting the appellant?

Mr Hashiti made two significant observations in respect of the matter in casu.

The first one is that the appellant argued this matter as if she was being charged with engaging in sexual conduct or having a lesbian affair. The charge in issue is conduct which is disgraceful in that it is cruel, indecent and unnatural. He relied on the authority of State v Mugoni 1994 (2) ZLR 184 (A) at p192 D – G where MCNALLY JA in dealing with a member charged with behaving in a scandalous manner had this to say,

“I do not consider that the word “scandalous” is in any sense a term of art, bearing a special meaning. In accordance with the usual rule, it is to be given its natural and popular meaning, namely: “something said or done that offends moral feelings, a sense of propriety or ideas of etiquette; something calling forth condemnation”. See Funk and Wagnall’s International Dictionary vol 2 at p1123; Concise Oxford Dictionary 7 ed at p935. This meaning is qualified, however, by the phrase “unbecoming the character of an officer and a gentleman”. Thus, behaviour which is not necessarily scandalous for an ordinary man may be scandalous for an Army officer and a gentleman; some personal behaviour unfitting of his rank or grade. The concept was well expressed by LORD PARKER CJ in Martin vs Royal College of Veterinary Surgeons’ Disciplinary Committee [1966] 1 QB 1 at 9C-E:

“But if the conduct, though reprehensible in anyone is in the case of the professional man so much more reprehensible as to be defined as disgraceful, it may, depending on the circumstances, amount to conduct disgraceful of him in a professional respect in the sense that it tends to bring disgrace on the profession which he practices. It seems to me, although I do not put this forward in any sense as a definition, that the conception of conduct which is disgraceful to a man in his professional capacity is conduct disgraceful to him as reflecting on his profession or in the present case, conduct disgraceful to him as a practising veterinary surgeon.”

See also Terry v Estate Agents Council 1979 RLR 365 (G) at 366D-H.”

The Judge Advocate, in the court a quo, in summing up the case to the presiding President and his panel, advised that they must   weigh the conduct of the appellant against   or within the circles of military ethics. He defined disgraceful conduct as shameful, shocking, scandalous, mean, unworthy disrespectful and dishonourable.

In the matter of Her Majesty The Queen v Captain Bann ister 2019 CMAC 2 the Court Martial Appeal Court of Canada, in dealing with an officer charged with disgraceful conduct stated that such conduct requires assessment in its context. It further stated that the issue of whether the actions of an accused were disgraceful was to be judged according to an objective assessment as to what a reasonable member of the military would consider disgraceful. The court, at para 21, laid down the test to assess whether   conduct is disgraceful as follows;

“…..In seeking conviction under s 93 of the NDA, the issue is whether the military judge, considering the perspective of a reasonable person with military experience and general service knowledge, is convinced beyond a reasonable doubt that the actions of the Respondent were disgraceful in the context of military community.”

What is coming out from the above authority is that what is required is a contextual assessment of the incident from the perspective of a military institution, in this case the Zimbabwe Defence Forces and the military community. This is so because para 37 criminalises actions that would not constitute crimes in non-military settings.

In the above case, at para 17, disgraceful conduct, as used by military judges, was defined variously as shockingly unacceptable, shameful, dishonourable and degrading, and references to actions being sudden, upsetting, inducing strong revulsion or profound indignation and not satisfactory or allowable.

As was correctly observed in Her Majesty The Queen supra at para 30 the issue goes to whether the conduct under review tarnished the ZDF as an institution to the point that a military judge would find it disgraceful.

In casu  the  charge of disgraceful conduct is particularised as having a lesbian affair with a married woman. The question is whether the State managed to prove beyond a reasonable doubt that the appellant engaged in a lesbian affair.

I am persuaded by the submission by Mr Uriri that the State did not manage to establish a lesbian relationship between Letina and the appellant.

According to the Miriam Webster Dictionary lesbianism is the romantic or sexual attraction between women. The Collins English Dictionary defines lesbianism as “homosexual relationships between women or the preference that a woman shows for sexual relationships with women.” A more elaborative definition is given by US Legal Inc which defines the term homosexual as follows:

“The term homosexual means a person, regardless of sex, who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts, and includes the terms “gay” and “lesbian”. A homosexual act includes any bodily contact, actively undertaken or passively permitted, between members of the same sex for the purpose of satisfying sexual desires; and any bodily contact which a reasonable person would understand to demonstrate a propensity or intent to engage in homosexual conduct.” (emphasis added)

From this definition, it can be said that lesbianism relates to engagement in homosexual acts by females, which acts involve bodily contact undertaken between members of the same sex for the purpose of satisfying sexual desires. There must be an element of bodily contact for the purpose of satisfying sexual desires.

In T v T (1975) 1975 CarswellMAN 22, 24 RFL 157 (QB) para 16, the wife left her husband of fifteen years to live with a woman she met when she took some community college courses.  There was evidence that the women shared a bed for at least part of the time that they lived together but they both denied that they were sexually involved.  Dewar CJQB found that Mrs. T left her marriage because of her attachment to the woman in her life, but refused to grant the divorce on the homosexual act ground.  He defined the “homosexual act” as including “any act of physical conduct between two persons of the same sex having as an object gratification of the sexual impulses or drives of either or both participants, the sexual quality of the act being the determining ingredient.”  The court found that   there was “no evidence of specific acts or conduct that could be compared with a catalogue of female homosexual practices, if one exists.”

The same element of physical conduct with the object of gratification of sexual impulses or drives comes out. The case   went further and clarified that the sexual quality, of the physical conduct between two persons of the same sex is the determining factor.

In the National Coalition case supra, relied on by Mr Uriri, the court dealt with the confirmation of a declaration of constitutional invalidity of statutes which criminalised sodomy and other prohibitions of erotic expression between men. Amongst these Acts was         s 20A of the Sexual Offences Act 23 of 1957 which criminalised acts “calculated to stimulate sexual passion or to give sexual gratification” committed between men at a party. In demonstrating that s 20A constituted unfair discrimination, and unjustifiably violated s 9 of the South African Constitution, the court mentioned that:

“[75] The absurdly discriminatory purpose and impact of the provision can be demonstrated by numerous examples. One will suffice. A gay couple attend a social gathering attended by gay, lesbian and hetero-sexual couples. The gay man, in the presence of the other guests, kisses his gay partner on the mouth in a way ‘calculated to stimulate’ both his and his partner’s ‘sexual passion’ and to give both ‘sexual gratification’. They do no more. A lesbian and a heterosexual couple do exactly the same. The gay couple are guilty of an offence. The lesbian and heterosexual couples not...

[76] There being no similar provision in relation to acts by men with women or by women with men, the discrimination is based on sexual orientation and therefore presumed to be unfair. The impact intended and caused by the provision is flagrant, intense, demeaning and destructive of self-realisation, sexual expression and sexual orientation….”.

The court went on to find that the   section amounts to unfair discrimination and, that the section cannot be justified under s 36 (1) of the 1966 Constitution.

It can be noted that the court in this regard did not make these remarks in the context of sexual intercourse but in respect of “acts done to stimulate sexual passion or to give sexual gratification.” However, by parity of reasoning, the court accepted that no offence is committed by a lesbian couple which engages in such acts.

In casu there was no physical conduct or bodily contact for the purpose of satisfying sexual desires or gratification that was established   between the two women. This is confirmed by the evidence of Letina who testified that they did not have sexual intercourse and neither did they kiss. They only went as far as hugging as their relationship was still young. It was not proved that the kissing and the hugging was done for the purpose of satisfying sexual desires. Although the appellant admitted to having been in a lesbian relationship in her confirmed warned and cautioned statement, the statement is silent as to what acts they engaged in which constituted   lesbianism.

The second point made by Mr Hashiti is that an appellate court, in such matters as in casu, has a restricted role and limited powers. For authority, he relied on Mugoni supra at p 190 para D – E where the court held that

“However, unlike the ordinary judge and jury situation where, in consequence, the conviction would have been quashed, in order to achieve success the appellant must overcome the provisions of s 81 which is now s 81 of the Defence Act. It reads:

“Subject to the provisions of section ninety, on an appeal in terms of this Part against conviction the Appeal Court shall quash the conviction only if it thinks that the finding of the court martial is unreasonable or is not justified__

(a) having regard to the evidence; or

(b) on the ground of a wrong decision of any question of law;

Or that on any ground there was a miscarriage of justice:

Provided that the Appeal Court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.””

In other words, the appeal court is precluded from interfering with a conviction where it could have done so in an ordinary criminal matter unless the requirements set out in        s 81 of the Act are met. As MCNALLY JA puts it at 190G, “notwithstanding the existence of any misdirection in the summing up, the finding of guilty cannot be set aside unless, as a matter of fact or law, it is unreasonable or not justified; or that there was a miscarriage of justice having regard to the evidence.”

The question to ask is whether having regard to the evidence placed before the court martial and the law, the finding of guilt is unreasonable or not justified or that there was a miscarriage of justice in the circumstances of this case.

From the evidence that was before the court a quo, which I outlined and analysed   above, there is, in   my   view, a   basis to interfere with the finding of guilt made by the court a quo. The finding of guilt is unreasonable and   not justified in the circumstances of this matter. The State chose to   pin   its colours on the mast of lesbianism as a particular of    disgraceful conduct but failed to prove it.

Everything considered, the appeal has   merit, and must therefore succeed. The appellant prayed   for   costs and there is no basis for refusing to grant her prayer.

Accordingly, I make the following order:

The appeal is allowed with costs

The judgement of the court a quo is set aside and substituted with the following:

“The accused is found not guilty and is hereby acquitted”

GARWE JA				I agree

HLATSHWAYO JA			I agree

K. Ncube & Partners, appellant’s legal practitioners

Defence Legal Service Zimbabwe National Army, respondent’s legal practitioners