The State V Washington Negande [2025] ZWCHHC 6 (17 April 2025)

2 HCC23/25 HCCR 102/25 KAR-REG 231/24 THE STATE Versus WASHINGTON NEGANDE HIGH COURT OF ZIMBABWE MUZOFA J CHINHOYI, 17 April 2025 Review Judgment MUZOFA J: The accused appeared before a Regional Magistrate charged with one count of rape in contravention of section 65 (1) (a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. After trial, he was convicted of the lesser charge of having unlawful sexual intercourse with a minor in contravention of s70 (1) (a) of the same Act. He was sentenced to 3 years imprisonment of which 6 months was conditionally suspended. The accused, a 27-year-old was well known to the complainant’s mother, they lived in the same locality in Chalala Location, Chief Mola. Sometime in May 2024 the complainant’s mother hired the accused to take the complainant to Mola High School, a boarding school. The accused used a motorbike to take the complainant to school. It is alleged that the accused used the Chalala- Siakobvu route which passes through a game park. When they were within the game park the accused stopped the bike and raped the complainant once. The trial Court found the complainant not credible and described part of her evidence as nonsensical. It then acquitted him on the charge of rape. It convicted the accused on the lesser charge based on the fact that the accused had approached the complainant’s family to apologise and offered compensation. I raised a query with the learned Magistrate whether this was a safe conviction considering the findings on the complainant’s credibility. The learned Magistrate maintained that the conviction was safe for the following reasons: ‘Firstly, that it was impossible that the complainant was raped at her place she said she was raped given the existence of elephants nearby. Secondly, it was inconceivable that she could have been raped and not divulge it to her teacher. It was also inconceivable that she was raped and made another return trip with the accused on the same motorcycle. Her whole conduct coupled with the unforced apology by the accused person to the complainant’s mother showed that the sexual intercourse was by consent. My respectful view was that while the evidence was not safe to convict on the charge of rape, it was safe to convict for the offence so convicted. As I indicated in the judgment the accused made a voluntary apology after being released on bail. The respectful view of the trial court is that no sane adult aged 28 years can apologise for a framed-up charge. However, if normal adults can go and apologise for what they have not done then the conviction is not safe. Indeed, the complainant lied about being raped. What moved the court to convict the accused on the competent charge was firstly his failure to tell the court his defence outline that after being falsely accused his own relatives forced him to go and apologise. Section 189 of the Criminal Law and Evidence Act places a duty on him to have said the failure to do so attracts adverse inference by operation of law.’ The response by the learned Magistrate missed critical legal and factual aspects of the case. The trial court convicted the accused person by playing a probability game. In criminal law, it is a trite position that courts use proof beyond reasonable doubt to convict an accused person. Proof on a balance of probabilities is a standard used in civil law. The State led evidence from two witnesses to prove its case. The complainant narrated how the accused took her to school on a motorbike. Along the way, in a game park the accused stopped the motorbike. There was an elephant about 2 metres away. The accused raped her and thereafter took her to school. When she arrived at school her friend saw some blood on her pant and asked her what happened. She disclosed to her friend that the accused had raped her. The friend consoled her remarking that was better than to be left in a game park, she could be dead by then. She returned home on holiday and when her mother asked her about her chastity, she lied to her mother that she had a boyfriend who had sexual relations with her. At that point her mother advised her that whoever had sexual relations with her is supposed to marry her. She then decided to report the matter to the police against the accused. Under cross examination she said she considered the accused an enemy since he caused the eviction of her mother from their rented accommodation. The complainant’s mother also gave evidence. She requested the accused to take the complainant to school using his motorbike. Nothing amiss took place until when she had a conversation with the complainant during the school holiday. She narrated her conversation with the complainant. Before they concluded their conversation the complainant left, unbeknown to her she went to the police to make a report. She learnt of the rape charges at the Police station. She said after the accused was granted bail, he approached her in the company of another man and apologised. The witness produced an audio recording that was played in court. The court listened to the recording but it was not produced as evidence. The State then closed its case. In his defence case, the accused persisted that these were trumped up charges and questioned why the complainant did not immediately report yet she was not threatened, that her description of how the offence was committed was incomprehensible and therefore false. On the apology he admitted apologising but explained that this was after he was prevailed by his family to apologise since they were neighbours and they already had some tiff between them. In its judgment the court assessed the complainant’s evidence and made very pertinent findings of fact about the complainant’s credibility which I totally agree with. The court found that there was no evidence that she was threatened by the accused not to report yet she did not report to the school authorities, except to the friend, she lied that she did not return to her home until term end yet she did, she lied that she had a boyfriend who had consensual sex with her yet she did not. That she was raped within a metre of elephants was incredible. The court described her as a ‘poor’ witness. It concluded that what she said did not even make sense but reasoned that the complainant had consensual intercourse with the accused. It reasoned that the accused had apologised, why he would apologise if he had not done anything. A number of issues arise in this case, whether a court can convict on the evidence of a witness it found not credible, whether the complaint is admissible and the effect of the apology. The centrality of the complainant’s credibility in sexual offences cannot be overemphasized. In S v Mubvumba HH338/18 after analysing the complainant’s evidence the court noted that the guilt of the accused depends on the evidence of the complainant and not on corroboration. In my view this is because sexual offences usually take place in private places and the two persons involved are the only ones privy to what transpired. Thus the trial court’s findings on credibility are important. The guidance in S v Mupfudza 1982(1) ZLR 271(SC) is worth taking note despite the fact that the case is no longer authority on the cautionary rule that has since been abandoned in our jurisdiction. The Court had this to say, ‘..trial courts frequently forget that the court must first decide whether the suspect witness ( the complainant is no longer regarded as a suspect witness after the abandonment of the cautionary rule) is credible; in other words, the court must first decide whether, taking into account all the circumstances of the case, including demeanour, the probabilities, and all the other considerations which triers of fact properly take into account in assessing credibility, it believes the witness. If not, the matter is at an end …’ The law maker has even granted Courts power to convict on the evidence of a single competent and credible witness. The complainant must be credible, after the Court finds the complainant credible then she or he triggers the whole chain of evidence, the medical affidavit and the recent report. In other words but for her/his credibility the rest of the evidence is of no purpose. In this case the court found that the complainant was not credible at all and l agree. What is disconcerting is that when the complainant discussed with her mother she disclosed that she had intercourse with an unnamed person whom she called her boyfriend. She said she could not disclose the accused’s name she was afraid. The reasoning defies logic, it was the act that was the punishable conduct and could potentially raise the mother’s wrath than the identity of the person. Secondly, she said she lied about the existence of a boyfriend who had consensual intercourse with her, so why would the court then conclude that, that boyfriend was the accused. There was nothing to stop the complainant to blurt out that it was the accused at that point. Why she then reported the accused as the person who raped her when she said she had consensual intercourse baffles the mind. Was she protecting someone or it was sheer fabrication? The inconsistencies in her evidence admits of no other conclusion except that the complainant was not truthful. In Moyo v The State HH 12/21, the appeal court set aside a conviction of rape after finding that the complainant’s evidence was inundated with inconsistencies. The court noted that there must be consistency on the information given about a sexual complaint so that its credibility and truthfulness is enhanced and not open to doubt. See also S v Mushamba HH 562/23. In this case the number of inconsistencies and lies that the complainant tolddestroyed her credibility. The trial court did not take into account the circumstances surrounding the commission of the offence. It is critical to note that the complainant in her own words said she regarded the accused an enemy, she could change the road if she met him because he bad mouthed her mother leading to her leaving their rented accommodation. Infact, she said the accused indicated that her mother cannot peacefully live with others. Apparently, this could be a motive to falsely incriminate the accused thus corroborating the accused’s defence. This takes me to the apology. Indeed an apology may constitute evidence that corroborates the state case. An apology can be made for different reasons. In this case the Court had opportunity to listen to the audio recording. It was an opportune time for it to make an assessment of the circumstances surrounding its making particularly in view of the explanation given by the accused. He said his family prevailed upon him to apologise for the sake of good relations as they already had bad relations. The trial Court in a terse judgment found it incredible that the accused, an adult would apologise and that he failed to mention this piece of evidence therefore an adverse inference can be drawn. The apology was not contextualised, why he made it, what exactly did he say and if he offered compensation what was the compensation for, anywhere who suggested the compensation. The trial Court must have interrogated the circumstances under which the apology was made. The Court could not have concluded that an adult cannot be prevailed upon by his family. This inference was drawn from an abstract position. The Court was now relying on circumstantial evidence. It must have complied with the rules applicable in drawing inferences. The law on drawing of inferences is trite, there must be proved facts and the inference to be drawn must be the only reasonable inference. See R v Blom 1939 AD 188, Chidemo v The State SC 68/24. There were no proved facts before the court to draw inferences from. The trial Court had no benefit of how the accused’s family operated. One thing for certain is that the accused’s family had a house which was let out for renting, it belonged to either the father or the brother it was unclear yet he had so much influence on its occupants. This is the reason why the complainant’s mother found herself out of the house due to the accused’s influence. That shows how the family may influence each other’s decisions. The next question is whether the report by the complainant was admissible at all. It is common cause that she said she reported to an unnamed friend immediately after she arrived at school. The State did not lead evidence from that witness. For a report of a sexual nature to be admissible it has to meet certain requirements. The requirements listed in the often-cited locus classicus in rape cases of S v Banana 2000 (1) ZLR 607 (SC) are: The complainant must have been made voluntarily, not as a result of questions of a leading and inducing or intimidating nature;Must have been made without undue delay, at what is in the circumstances the earliest opportunity, to the first person to whom the complainant could reasonably be expected to have made it. In the Banana case (supra), the court stated that a complaint in an alleged sexual offence made soon after its occurrence is admissible to show the consistency of the complainant’s evidence and the absence of consent. By making a report soon after its occurrence the complainant serves to rebut any suspicion that the complainant has fabricated the allegation. The conduct of the complainant in casu does not satisfy the requirements enumerated above. The sexual complaint was tainted by inducement, her mother questioned her chastity. When she revealed that she had eaten the forbidden tree, the mother advised her that the person who had sexual relations with her must marry her. Obviously, at this stage the complainant was under some pressure to account for her chastity. If it was the accused why she did not blurt it out immediately remains questionable. There was no evidence that the accused threatened her that not to report. The approach taken by the trial court was discouraged in S v Makanyanga 1996 (2) ZLR 23 wherein the learned Judge said, “Proof beyond a reasonable doubt demands more than that the complainant be believed and the accused disbelieved. It demands that a defence succeeds wherever it appears reasonably possible that it is true”. The trial Court reasoned that because the accused offered compensation and apologised to the complainant’s mother, it demonstrated admission to the offence. The approach was wrong since the apology was not properly ventilated and contextualised. The accused did not admit to the offence through offering compensation to the complainant’s mother. The record is clear. From the forgoing it is my considered view that the conviction was not safe. The trial Court could not rely on the evidence it labelled unreliable to convict the accused on the lessor charge. If the complainant’s evidence was in shambles then no corroboration could save it. In any event there was no plausible corroboration. This is not a case where there was evidence of a love relationship between the accused and the complainant. The complainant herself did not even indicate that she had a love relationship with the accused. There is a doubt as to who had sexual intercourse with the complainant. The doubt must operate in favour of the accused person. Accordingly the conviction and sentence is set aside. It is substituted with the following, ‘Not guilty and acquitted’ Justice Bachi- Mzawazi Agrees 2 HCC23/25 HCCR 102/25 KAR-REG 231/24 2 HCC23/25 HCCR 102/25 KAR-REG 231/24 THE STATE Versus WASHINGTON NEGANDE HIGH COURT OF ZIMBABWE MUZOFA J CHINHOYI, 17 April 2025 Review Judgment MUZOFA J: The accused appeared before a Regional Magistrate charged with one count of rape in contravention of section 65 (1) (a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. After trial, he was convicted of the lesser charge of having unlawful sexual intercourse with a minor in contravention of s70 (1) (a) of the same Act. He was sentenced to 3 years imprisonment of which 6 months was conditionally suspended. The accused, a 27-year-old was well known to the complainant’s mother, they lived in the same locality in Chalala Location, Chief Mola. Sometime in May 2024 the complainant’s mother hired the accused to take the complainant to Mola High School, a boarding school. The accused used a motorbike to take the complainant to school. It is alleged that the accused used the Chalala- Siakobvu route which passes through a game park. When they were within the game park the accused stopped the bike and raped the complainant once. The trial Court found the complainant not credible and described part of her evidence as nonsensical. It then acquitted him on the charge of rape. It convicted the accused on the lesser charge based on the fact that the accused had approached the complainant’s family to apologise and offered compensation. I raised a query with the learned Magistrate whether this was a safe conviction considering the findings on the complainant’s credibility. The learned Magistrate maintained that the conviction was safe for the following reasons: ‘Firstly, that it was impossible that the complainant was raped at her place she said she was raped given the existence of elephants nearby. Secondly, it was inconceivable that she could have been raped and not divulge it to her teacher. It was also inconceivable that she was raped and made another return trip with the accused on the same motorcycle. Her whole conduct coupled with the unforced apology by the accused person to the complainant’s mother showed that the sexual intercourse was by consent. My respectful view was that while the evidence was not safe to convict on the charge of rape, it was safe to convict for the offence so convicted. As I indicated in the judgment the accused made a voluntary apology after being released on bail. The respectful view of the trial court is that no sane adult aged 28 years can apologise for a framed-up charge. However, if normal adults can go and apologise for what they have not done then the conviction is not safe. Indeed, the complainant lied about being raped. What moved the court to convict the accused on the competent charge was firstly his failure to tell the court his defence outline that after being falsely accused his own relatives forced him to go and apologise. Section 189 of the Criminal Law and Evidence Act places a duty on him to have said the failure to do so attracts adverse inference by operation of law.’ The response by the learned Magistrate missed critical legal and factual aspects of the case. The trial court convicted the accused person by playing a probability game. In criminal law, it is a trite position that courts use proof beyond reasonable doubt to convict an accused person. Proof on a balance of probabilities is a standard used in civil law. The State led evidence from two witnesses to prove its case. The complainant narrated how the accused took her to school on a motorbike. Along the way, in a game park the accused stopped the motorbike. There was an elephant about 2 metres away. The accused raped her and thereafter took her to school. When she arrived at school her friend saw some blood on her pant and asked her what happened. She disclosed to her friend that the accused had raped her. The friend consoled her remarking that was better than to be left in a game park, she could be dead by then. She returned home on holiday and when her mother asked her about her chastity, she lied to her mother that she had a boyfriend who had sexual relations with her. At that point her mother advised her that whoever had sexual relations with her is supposed to marry her. She then decided to report the matter to the police against the accused. Under cross examination she said she considered the accused an enemy since he caused the eviction of her mother from their rented accommodation. The complainant’s mother also gave evidence. She requested the accused to take the complainant to school using his motorbike. Nothing amiss took place until when she had a conversation with the complainant during the school holiday. She narrated her conversation with the complainant. Before they concluded their conversation the complainant left, unbeknown to her she went to the police to make a report. She learnt of the rape charges at the Police station. She said after the accused was granted bail, he approached her in the company of another man and apologised. The witness produced an audio recording that was played in court. The court listened to the recording but it was not produced as evidence. The State then closed its case. In his defence case, the accused persisted that these were trumped up charges and questioned why the complainant did not immediately report yet she was not threatened, that her description of how the offence was committed was incomprehensible and therefore false. On the apology he admitted apologising but explained that this was after he was prevailed by his family to apologise since they were neighbours and they already had some tiff between them. In its judgment the court assessed the complainant’s evidence and made very pertinent findings of fact about the complainant’s credibility which I totally agree with. The court found that there was no evidence that she was threatened by the accused not to report yet she did not report to the school authorities, except to the friend, she lied that she did not return to her home until term end yet she did, she lied that she had a boyfriend who had consensual sex with her yet she did not. That she was raped within a metre of elephants was incredible. The court described her as a ‘poor’ witness. It concluded that what she said did not even make sense but reasoned that the complainant had consensual intercourse with the accused. It reasoned that the accused had apologised, why he would apologise if he had not done anything. A number of issues arise in this case, whether a court can convict on the evidence of a witness it found not credible, whether the complaint is admissible and the effect of the apology. The centrality of the complainant’s credibility in sexual offences cannot be overemphasized. In S v Mubvumba HH338/18 after analysing the complainant’s evidence the court noted that the guilt of the accused depends on the evidence of the complainant and not on corroboration. In my view this is because sexual offences usually take place in private places and the two persons involved are the only ones privy to what transpired. Thus the trial court’s findings on credibility are important. The guidance in S v Mupfudza 1982(1) ZLR 271(SC) is worth taking note despite the fact that the case is no longer authority on the cautionary rule that has since been abandoned in our jurisdiction. The Court had this to say, ‘..trial courts frequently forget that the court must first decide whether the suspect witness ( the complainant is no longer regarded as a suspect witness after the abandonment of the cautionary rule) is credible; in other words, the court must first decide whether, taking into account all the circumstances of the case, including demeanour, the probabilities, and all the other considerations which triers of fact properly take into account in assessing credibility, it believes the witness. If not, the matter is at an end …’ The law maker has even granted Courts power to convict on the evidence of a single competent and credible witness. The complainant must be credible, after the Court finds the complainant credible then she or he triggers the whole chain of evidence, the medical affidavit and the recent report. In other words but for her/his credibility the rest of the evidence is of no purpose. In this case the court found that the complainant was not credible at all and l agree. What is disconcerting is that when the complainant discussed with her mother she disclosed that she had intercourse with an unnamed person whom she called her boyfriend. She said she could not disclose the accused’s name she was afraid. The reasoning defies logic, it was the act that was the punishable conduct and could potentially raise the mother’s wrath than the identity of the person. Secondly, she said she lied about the existence of a boyfriend who had consensual intercourse with her, so why would the court then conclude that, that boyfriend was the accused. There was nothing to stop the complainant to blurt out that it was the accused at that point. Why she then reported the accused as the person who raped her when she said she had consensual intercourse baffles the mind. Was she protecting someone or it was sheer fabrication? The inconsistencies in her evidence admits of no other conclusion except that the complainant was not truthful. In Moyo v The State HH 12/21, the appeal court set aside a conviction of rape after finding that the complainant’s evidence was inundated with inconsistencies. The court noted that there must be consistency on the information given about a sexual complaint so that its credibility and truthfulness is enhanced and not open to doubt. See also S v Mushamba HH 562/23. In this case the number of inconsistencies and lies that the complainant tolddestroyed her credibility. The trial court did not take into account the circumstances surrounding the commission of the offence. It is critical to note that the complainant in her own words said she regarded the accused an enemy, she could change the road if she met him because he bad mouthed her mother leading to her leaving their rented accommodation. Infact, she said the accused indicated that her mother cannot peacefully live with others. Apparently, this could be a motive to falsely incriminate the accused thus corroborating the accused’s defence. This takes me to the apology. Indeed an apology may constitute evidence that corroborates the state case. An apology can be made for different reasons. In this case the Court had opportunity to listen to the audio recording. It was an opportune time for it to make an assessment of the circumstances surrounding its making particularly in view of the explanation given by the accused. He said his family prevailed upon him to apologise for the sake of good relations as they already had bad relations. The trial Court in a terse judgment found it incredible that the accused, an adult would apologise and that he failed to mention this piece of evidence therefore an adverse inference can be drawn. The apology was not contextualised, why he made it, what exactly did he say and if he offered compensation what was the compensation for, anywhere who suggested the compensation. The trial Court must have interrogated the circumstances under which the apology was made. The Court could not have concluded that an adult cannot be prevailed upon by his family. This inference was drawn from an abstract position. The Court was now relying on circumstantial evidence. It must have complied with the rules applicable in drawing inferences. The law on drawing of inferences is trite, there must be proved facts and the inference to be drawn must be the only reasonable inference. See R v Blom 1939 AD 188, Chidemo v The State SC 68/24. There were no proved facts before the court to draw inferences from. The trial Court had no benefit of how the accused’s family operated. One thing for certain is that the accused’s family had a house which was let out for renting, it belonged to either the father or the brother it was unclear yet he had so much influence on its occupants. This is the reason why the complainant’s mother found herself out of the house due to the accused’s influence. That shows how the family may influence each other’s decisions. The next question is whether the report by the complainant was admissible at all. It is common cause that she said she reported to an unnamed friend immediately after she arrived at school. The State did not lead evidence from that witness. For a report of a sexual nature to be admissible it has to meet certain requirements. The requirements listed in the often-cited locus classicus in rape cases of S v Banana 2000 (1) ZLR 607 (SC) are: The complainant must have been made voluntarily, not as a result of questions of a leading and inducing or intimidating nature; Must have been made without undue delay, at what is in the circumstances the earliest opportunity, to the first person to whom the complainant could reasonably be expected to have made it. In the Banana case (supra), the court stated that a complaint in an alleged sexual offence made soon after its occurrence is admissible to show the consistency of the complainant’s evidence and the absence of consent. By making a report soon after its occurrence the complainant serves to rebut any suspicion that the complainant has fabricated the allegation. The conduct of the complainant in casu does not satisfy the requirements enumerated above. The sexual complaint was tainted by inducement, her mother questioned her chastity. When she revealed that she had eaten the forbidden tree, the mother advised her that the person who had sexual relations with her must marry her. Obviously, at this stage the complainant was under some pressure to account for her chastity. If it was the accused why she did not blurt it out immediately remains questionable. There was no evidence that the accused threatened her that not to report. The approach taken by the trial court was discouraged in S v Makanyanga 1996 (2) ZLR 23 wherein the learned Judge said, “Proof beyond a reasonable doubt demands more than that the complainant be believed and the accused disbelieved. It demands that a defence succeeds wherever it appears reasonably possible that it is true”. The trial Court reasoned that because the accused offered compensation and apologised to the complainant’s mother, it demonstrated admission to the offence. The approach was wrong since the apology was not properly ventilated and contextualised. The accused did not admit to the offence through offering compensation to the complainant’s mother. The record is clear. From the forgoing it is my considered view that the conviction was not safe. The trial Court could not rely on the evidence it labelled unreliable to convict the accused on the lessor charge. If the complainant’s evidence was in shambles then no corroboration could save it. In any event there was no plausible corroboration. This is not a case where there was evidence of a love relationship between the accused and the complainant. The complainant herself did not even indicate that she had a love relationship with the accused. There is a doubt as to who had sexual intercourse with the complainant. The doubt must operate in favour of the accused person. Accordingly the conviction and sentence is set aside. It is substituted with the following, ‘Not guilty and acquitted’ Justice Bachi- Mzawazi Agrees