MANDISODZA v THE STATE (3 of 2026) [2026] ZWMTHC 3 (28 January 2026)

1 HCMTJ 3-25 HCMTCR 1732/25 ALBERT MANDISODZA versus THE STATE HIGH COURT OF ZIMBABWE MUZENDA & SIZIBA JJ MUTARE, 21 & 28 January 2026 **Criminal Appeal** Mr _C. N. Mukwena,_ for the appellant Mr _M. Musarurwa,_ for the respondent SIZIBA J: 1. The appellant is dissatisfied by the decision of the learned Regional Magistrate sitting at Mutare Magistrates Court on 20 September 2025 whereof he was convicted of the crime of rape in contravention of s 65(1) of the Criminal Law [Codification and Reform] Act [_Chapter 9:23_]. He was sentenced to 12 years imprisonment of which 2 years were suspended on usual conditions of good behavior. His appeal is against conviction only. After hearing submissions from counsel on 21 January 2026, we dismissed the appeal for lack of merit. **THE EVIDENCE ADDUCED BEFORE THE COURT** _**A QUO**_ 2. The allegations by the State were that on a date unknown to the prosecutor sometime in 2021, the appellant had sexual intercourse with the complainant who was then aged 11 years of age and accordingly incapable of consenting at law. This was alleged to have occurred at house number 520 Zororo, Sakubva in Mutare. The appellant and the complainant were co-tenants at the said house wherein the appellant resided with his uncle while the complainant resided with her maternal aunt one Memory Magwaza. 3. The complainant alleged that on the day in question, she arrived from school and got inside their bedroom intending to change or remove her school uniform. She and her aunt were using one room. The appellant walked inside the room without knocking and requested to watch the television for about two minutes. The complainant then decided to go out to defer to the appellant who wanted to watch the television. As she attempted to exit the door, the appellant grabbed her by the hand, pulled her inside the room and closed the door. She went further to narrate that the appellant threw her on the bed. He took a black cloth from his pocket and tied her mouth with it. She tried to free herself but the appellant produced a knife from his pocket and threatened to kill her if she resisted. He dropped his trousers to knee level, lifted up her skirt and pushed aside her panty and inserted his penis into her vagina and had sexual intercourse with her. She was hurt on the vagina. The appellant left his hat and jacket which was seen by her aunt. She reported to her aunt whom she stayed with. She also reported to the older aunt later. She also alleged that the appellant had had sexual intercourse with her on another subsequent occasion. She took the view that her aunt did not take up the matter because she was friends with the appellant. 4. It is common cause that after the complainant’s aunt had discovered the appellant’s jacket, she also suspected that the appellant might have abused the complainant. The three of them proceeded to St Joseph’s Hospital where the complainant was examined by a doctor who opined that she had not been abused. The accused had been advised by his uncle to also accompany them so that if he had committed an offence he could be arrested. 5. The offence entered the public domain when the complainant was doing form 1 in 2025. Her teacher Monalisa Mushore gave the class a test. Only four children passed it. She began counselling the children in class about the need for them to be serious with school and to avoid bad behavior such as taking drugs and being promiscuous. The complainant began to cry. She called her to the staffroom in the afternoon and that is when she opened up and told her that she was raped by the appellant when she was in grade 4 and that nothing was done to the appellant. She instructed her to ask her mother to contact her. She maintained that the complainant divulged the incident on her own without any suggestive questioning on her part. 6. The appellant on his part agreed that he stayed at the relevant house with the complainant. He left the place by the end of 2021 when he had found a job in Marondera. He testified that his relations with the complainant were cordial. He denied having had sexual intercourse with the complainant. He dismissed the allegations as a fabrication. He agreed having accompanied the complainant and her aunt to the hospital in 2021 over the same allegations after his jacket was found at their room. 7. The medical examination carried out on 20 June 2025 showed that the complainant had healed hymenal tears. This was after she had been allegedly raped by one of the boys who rented at her place of residence. **FINDINGS MADE BY THE COURT** _**A QUO**_ 8. The court _a quo_ carefully considered the evidence that was led before it. It was alive to the principles applicable to the admissibility of sexual complaints as enunciated in the cases of _S_ v _Nyirenda_ 2003 (2) ZLR 64 (H)_and S_ v _Banana_ 2000 (1) ZLR 607 (S). The court found that the complainant had made a report to her aunt after the second sexual abuse. It reasoned that her aunt had denied such a report because of her friendship with the appellant. The court went further to find that there had been no motive for the complainant to lie given that she had no bad blood with the appellant. It reasoned that the complainant had respected the appellant and given him precedence to watch the television before she could change her uniform. The court _a quo_ found that the complainant’s report had been spontaneous and also in time considering her age and the circumstances wherein she had been disappointed by inaction after her first report. It found that the complainant was credible in her evidence. **THE APPELLANT’S GROUNDS OF APPEAL** 9. The appellant’s grounds of appeal were as follows: (a) The court _a quo_ grossly misdirected itself at law and in fact when it made a finding that complainant was a credible witness and disregarded Memory Magwaza’s testimony yet the findings were not supported by evidence thereby making the findings so outrageous in defiance of logic that no sensible person who had applied mind to the evidence and facts could have arrived at such conclusion. (b) The court _a quo_ misdirected itself at law by convicting the now Appellate of rape yet the report for rape was not made at the earliest opportunity and the report was not made freely and voluntarily. (c) The court _a quo_ erred at law in making a finding that State had proved its case beyond a reasonable doubt yet doubt had been created when complainant admitted that she initially went for a medical examination at Mutare General Hospital and no evidence of abuse was found. **SUBMISSIONS BY COUNSEL** 10. Mr _Mukwena_ conceded that the first ground of appeal was improperly couched and that the critical issue was that of credibility as captured in the second and third grounds of appeal. He submitted that the complainant was not credible and that the court _a quo_ ’s finding that she was credible was a misdirection. He also submitted that doubt was created when the complainant was examined by a doctor after the alleged sexual assault and found to be intact. On the other hand, Mr _Musarurwa_ elected to abide by his heads of argument and submitted that the conviction of the appellant was safe. **THE LAW AND ITS APPLICATION** 11. The questions of credibility of witnesses are chiefly the domain of the trial court. See _Khumalo_ v _The State_ HB 28-24. It is trite that an appellate court will not interfere with a lower court’s factual findings in the absence of irrationality. See _ZINWA_ v _Mwoyounotsva_ 2015 (1) ZLR 935 (S). We have carefully followed the reasoning of the court _a quo_. The court _a quo_ was alive to the applicable principles in sexual complaints. The court examined the evidence that was placed before it and came to the conclusion that the complainant was indeed raped by the appellant in 2021. She was at a tender age of 11 years by then. She was threatened to be killed by the appellant. Her report to the aunt yielded no positive action. She then reported to her teacher when she was 14 years old and doing form one in 2025. She suffered emotionally and it led her to cry when the class was being counselled about sexual misconduct and drugs. Given her circumstances, the report to the teacher was found to be timeous and acceptable in its context. The trial court explained why it rejected the evidence of both the appellant and the complainant’s aunt on critical issues. It did not misapply the law and we do not see any irrationality in its findings on facts. We cannot just interfere for the sake of substituting our own views without having benefited from hearing the witnesses testify ourselves. We cannot be persuaded to reject the trial court’s factual findings on the basis that the complainant was initially examined and found to be intact when the results of such examination were not placed in writing before the court _a quo_ – the very court that discredited both the appellant and the complainant’s aunt in their testimony. We can only defer to the trial court’s observations and analysis on such issues. As a result, we found no merit in the appeal and dismissed it. ______________________ MUZENDA J agrees _Chibaya & Partners, _appellant’s legal practitioners _National Prosecuting Authority,_ respondent’s legal practitioners | | ---|---|---