S v Masuku (HCA 36 of 2000) [2004] ZWBHC 101 (1 September 2004)

Judgment No. HB 101/2004 Case No. HCA 36/00 NYELESI NYUNGU GUDU MASUKU Versus THE STATE IN THE HIGH COURT OF ZIMBABWE CHIWESHE & NDOU JJ BULAWAYO 1 APRIL 2003 AND 2 SEPTEMBER 2004 Adv. T A Cherry for the appellant H S M Ushewonkunze III for the respondent Judgment NDOU J: The appellant was convicted of committing the offence of rape by a Regional Magistrate sitting at Bulawayo. He was sentenced to three and half years imprisonment of which two years imprisonment were suspended on the condition of good behaviour. At the time of the commission of the offence the complainant was committed to Luveve Remand Home after experiencing family problems at home. She was 14 years old and was sent there as a child in need of care by the Department of Social Welfare. The appellant was at the time a warden at Luveve Remand Home looking after children sent to that institution. The state alleged that on the date to the prosecutor unknown but during the month of July 1985 the appellant called the complainant from the dormitory to his office under the pretext that he wanted to give her some bible lessons. The complainant went to the appellant’s office and once inside there, the appellant fondled the complainant’s breasts. He then lifted the complainant and took her to another room next to the office. In that room there was a bed used by the appellant during he night. The appellant took the complainant there at about 1300 hours. The appellant placed the complainant on the bed, closed her HB 101/04 mouth to prevent her from screaming, and raped her once. After raping her, the appellant threatened to place her in isolation should she ever tell anyone about the rape. The complainant complied through fear. After the rape the complainant was set free and went back to the dormitory. She did not report to anyone her ordeal as she was afraid of the accused and his threat of isolating her. She was later released from the home. She kept the incident secret until she tried to commit suicide on a date to the prosecutor unknown but in the year 1986. In July 1996, about eleven (11) years later she met the appellant in town and this infuriated her. She approached him to tell him about her feelings as to the rape incident because it was still haunting her. She later made a report to the police and the accused was arrested. Facts which appear to be common cause from the evidence on record are that: (a) the appellant was employed at various levels as a warden and supervisor at Luveve Remand Home from June 1976 up to a date to the prosecutor unknown but sometime in 1992. (b) The complainant was admitted on 18 July 1985 for a period of about two weeks. (c) The appellant was the person responsible for the filling in the admission sheet admitting the complainant to Luveve Remand Home. (d) The complainant could still remember appellant eleven years after she was discharged from Luveve Remand Home, and this is despite the fact that she was at the home for only two weeks. (e) The complainant had a recollection of the daily routine used at the Remand Home. This routine was confirmed by Doctor Sibanda and Thabi Bunyana in their testimony. This factor has to be considered in HB 101/04 the context that it is really basic routine that would be easy to remember. (f) There was a bed in the office of the supervisor at the time of the commission of the offence. It is trite that the onus is on the state to prove beyond reasonable doubt that the appellant committed the crime of rape by proving all the essential elements of that offence, namely that the appellant had sexual intercourse with the complainant and without the complainant’s consent. Each of the elements has to be proved beyond reasonable doubt. In other words, the onus to prove the case beyond reasonable doubt lies on the state and not on accused. All that the accused needs to do is to put forward a case which is reasonable true – Kapende v S HH-157-02; S v Dube 1997(1) ZLR 225 (S); S v Nziradzepatsa 1999(1) ZLR 568(H); Manyika v S HH-215-02; R v Mabole 1968(4) SA 811 (R) and Kombayi v S HB-27-04. If there is doubt, the benefit of such doubt has to go to the accused. In their heads of arguments, both counsel argued on the basis of a fixed cautionary rule practice in sexual offences – see S v Mupfudza 1982(1) ZLR 271 on the basis that this rule was applicable at time of the trial. The rule was, however, no longer applicable at the time of the hearing of the appeal on account of the decision in S v Banana 2000(1) ZLR 607 (S). I do not think that it is necessary to decide this issue in this matter. I however, do not think that counsel’s understanding of the law in this regard is correct. With respect, I think that if we were dealing with the changes in substantive law their understanding would be correct, because the substantive law applicable at the time of the trial would be relevant. Where, however, we are dealing with procedural or odjectival law the law applicable is that which is applicable at the HB 101/04 time of the appeal. In the circumstances, the decision in S v Banana, supra, is applicable. The crucial evidence is that of a single witness viz, the complainant. The words of MAKARAU J in S v Chamunorwa & Anor 2001(2) ZLR 404 (H) at 406 A-E, are instructive – “However, in S v Banana 2000(1) ZLR 607(S), the Supreme Court held that such a rule of practice [fixed cautionary rule] placed an additional burden on victims in sexual cases, which could lead to grave injustice to the victims involved, and accordingly it ruled that the time had now come for our courts to move away from the two pronged test in sexual cases. In endorsing the view adapted by countries such as Canada, the United Kingdom, New Zealand and Australia, that in sexual cases the cautionary rule of practice is not warranted, GUBBAY CJ, however, emphasised that this does not mean that the nature and circumstances of the alleged sexual offence need not be considered carefully. He further pointed out that it is permissible in terms of section 269 of the Criminal Procedure and Evidence Act[Chapter 9:07] for a court to convict a person on the single evidence of a competent and credible witness. Then at 615E-H, he said: “In Zimbabwe, much the same approach has been adopted. In S v Nyathi 1977(2) RLR 315(A) at 318E-G, LEWIS JP, warned that the test in R v Makoena, supra is not to be regarded as an inflexible rule of thumb. There is no magic formula which determines when a conviction is warranted upon the testimony of a single witness. His evidence must be approached with caution and the merits thereof weighed against any factors which militate against its credibility. In essence, a common sense approach must be applied. If the court is convinced beyond a reasonable doubt that the sole witness has spoken the truth, it must convict, notwithstanding that he was in some respects unsatisfactory. See also S v Nathoo Supermarket (Pvt) Ltd 1987(2) ZLR 136(S) at 138D-F.” Where the evidence of the single witness is corroborated in any way which tends to indicate that the whole story was not concocted, the caution enjoined may be overcome and acceptance facilitated. But corroboration is not essential. Any other feature which increases the confidence of the court in the reliability of the single witness may also overcome the caution.” This is a case which tests the criminal justice system to its limits. We have the case of an undoubtedly intelligent woman, who comes forward alleging rape in respect of an incident which happened ten(10) years before she reported i.e. to anyone and some eleven(11) years before she reported it to the police. In the circumstances HB 101/04 absolute care in the consideration of the evidence is called for. There is the difficulty of the passage of time affecting the memory of witnesses and thereby prejudicing the appellant’s defence. It seems that this prima facie, constitutes a violation of the appellant’s constitutional rights to a fair trial within a reasonable time as enshrined in section 18 of the Constitution of Zimbabwe. A trial taking place some fourteen (14) years after the alleged criminal act, seems on the face of it, to be anything other than fair. I am, however, not persuaded to deal with the matter the basis of constitutionality without the benefit of a proper foundation and comprehensive submissions in this regard. As alluded to above, this case stands or falls on the testimony of the complainant. The learned trial magistrate made a positive finding on the credibility of the complainant. The trial court enjoyed the advantages of seeing and hearing the complainant in the atmosphere of the trial. As a appellate court we are generally reluctant to disturb such findings of the trial court on the question of fact. The appellant court can only disregard such findings of fact where they defy reason and common sense or there is something grossly irregular in the proceedings to warrant interference – Mbanda v S SC-184-90; Soko v S SC-118-92; S v Mlambo 1994(2) ZLR 410(S); R v Dhlumayo & Anor 1948(2) SA (A); Van Aswegen v De Clercq 1960(4) 875(A) and Kombayi v S, supra. A number of unsatisfactory features of the complainant’s evidence present themselves to this case. The complainant was not consistent in her evidence. Notwithstanding what was highlighted in the above cases it should be borne in mind that it is the duty of this appellant court to overrule a conclusion of a court of instance on a question of fact when it is convinced that the conclusion to which the latter court HB 101/04 has come is wrong – Van Asuregen v De Clercq, supra, and Blysaag (Edms) Bpk en Andere v Theron 1978(2) SA 624 (A). I propose to highlight these unsatisfactory features in turn. First, she told Oddette Noble (hereinafter referred to as Mrs Noble) that at the commencement of her therapy with her on 14 November 1995, she had not then told her husband about the rape. In August 1996 she told her that, since the therapy she had since told her husband. Yet both herself and her husband testified that she had told her husband of the rape some time in 1994. In fact, from her husband’s testimony it is categorically clear that she only stated seeing Mrs Noble after she had informed the husband of the rape. She gave incorrect information either to Mrs Noble or to the court. Second, the complainant told Mrs Noble that she lived with her father after her parents divorced. From the evidence it is now a fact that her parents were not divorced but that her mother lived in the rural areas while her father worked and lived in Bulawayo. Again she misrepresented facts to her therapist. Third, she told Mrs Noble that the problems with her husband were because she believed that he was having an affair with their maid and also that he might be gay as she suspected that he was having a sexual relationship with one of his male friends at whose house he sometimes spent the night. Yet she did not disclose any of this to the court preferring to insist that her sexual problems with her husband were due to the alleged rape which took place more than a decade before these problems. She withheld these material facts from the court. The psychiatrist’s evidence was to the effect that the complainant’s nightmares and sexual problems could have been caused HB 101/04 by anything including her difficult upbringing and one might add, her difficulties with her husband and suspicions of infidelity and that he was gay. The complainant had had a perfectly normal sexual relationship barely three (3) years after the alleged rape and had had a child. She had a perfect relationship with her husband from 1990 to 1994. Then all of a sudden the memories of the rape came back in 1994. This does not make sense. Even if it did, one is left with the impression that her 1994 problems had more to do with her then current difficulties with her husband relating to the alleged affair with the maid and the suspicion that he was gay. It is not difficult to understand how a person with a difficult, poor and psychologically damaging upbringing could react the way the complainant reacted when faced with the real prospect of her marriage collapsing and thereafter being thrown back into loneliness and possibly, grinding poverty. It is equally understandable how she could place reliance on the alleged rape to save her marriage by blaming something which was not responsible for the problems in her marriage. On the evidence of complainant, it has already been pointed out that she reported to the first person some ten(10) years after the rape. The delay of ten years does not, on its own, render this evidence of complaint inadmissible. What is crucial is that the complaint must have been made on the first reasonable opportunity to the first person to whom the victim of the sexual assault might be expected to complain – R v Du Plessis, 1922 TPD 153; R v Gannon 1906 TS 114 and R v C 1955(4) SA 40 (N). The reason for admitting such evidence is that such evidence goes to show that the woman was not a consenting party, it can only be admitted as tending to show that she is speaking the truth. Strictly speaking, it is not correct to speak of the complaint as “corroboration”, to do so would be to regard the woman as corroborating herself – HB 101/04 R v Evans (1924) 18 CAR 123, R v Coulthread (1933), 148 LT 480 and R v De Beer 1933 NPD 30. In casu, the court erred by accepting complaints made subsequent to the one made to the first person. The trial court appears to have lost sight of the fact that evidence of complainant in sexual cases is admitted as an exception to the general rule against hearsay evidence. In my view, where evidence of a complaint to a person, to whom the victim might be expected to complain, has been admitted there is no good ground for allowing evidence of repetitions of that complaint to other persons. The reason for admitting evidence of the first complaint, made at the first reasonable opportunity, disappears when the complainant has had time to think out, or embellish a story. If, however, the person first spoken to is one to whom the alleged victim could not be expected to give the full story, and only a partial complaint has been made to him or her, evidence of a more detailed complaint made at the first opportunity to a person with whom the complainant is more intimately acquainted may be admitted. In this case once the report to Mrs Noble had been admitted the subsequent evidence of complaint repeated to other witness constitutes inadmissible hearsay evidence. The evidence of the complaint has to be examined with the above in mind. The complainant did not give a consistent explanation for not making an early report. First, in her evidence in chief she said it was because she believed the appellant when he allegedly told her that no one would believe her word against his. Second, under cross-examination her explanation was that to her mind the appellant was powerful almost like a President and hence reporting him was hopeless. Third, she later said that she did not because there was no one she really trusted. Yet when Sister Fides whom she said was the one person she really trusted and could confide in came to the Home to visit her, she said that she did not tell her because she feared HB 101/04 being put in isolation. There is no evidence that the appellant threatened her with isolation. Fourth, when she was removed from the institution she said she did not tell her father because she was very concerned about immediate things such as where she would get her next meal. Fifth, she said she did not tell her mother when she got to her at their rural home because “she did not see any reason why” she should tell her since this was her own battle and in event she had enough of her own problems. Sixth, she said she did not tell her therapist in or about 1986 because she was more interested in the tablets she was given. She even denied that there had been a traumatic incident in the past. Seventh, when her 1986 boyfriend with whom she had a child asked about how she had lost her virginity she said she could not tell him about the rape because she did not want him to think less of her father who had put her in an institution. All in all, her failure to make timeous report has to be taken into account with these different explanations. As alluded to above, it was not even clear whether she first reported the rape to her husband in 1994 or to Mrs Noble in 1995. Further, the report to her husband was not volunteered. It was extracted from her by her husband. Even then she actually never said she was raped but that the appellant had ejaculated on her thighs. For the complaint to be admissible it must have been voluntarily made – R v Norcott (1916) 116 LT 573 and A Guide to the Criminal Law of Zimbabwe by G Feltoe at 123. The issue of the credibility of the complainant also largely turns on the state of the mind of the complainant at the time she made a report to the police and the psychiatric and psychological evidence led at the trial of the appellant. The court a quo made a factual finding that the complainant was suffering from a psychological HB 101/04 condition commonly referred to as post-traumatic stress disorder. It emerged from the evidence on record in the present instance that the complainant had been treated for severe depression and anxiety by a psychologist, and that she was later referred for psychiatric treatment at which stage the psychiatrist diagnosed her as suffering from “mild symptoms of chronic post-traumatic stress disorder”. Both experts’ testimony – indicate that at the time of the trial the complainant was fit to testify. Competency to testify as a witness is a question of fact to be determined after reception of expert medical evidence - S v Mbizi SC-184-89. In Collins Dictionary of Medicine by R M Youngson (Harper Collins Publishers 1992) at page 491, post traumatic stress disorder is defined as:- “an anxiety disorder caused by the major personal stress of a serious or frightening event, such as injury, assault, rape, exposure to warfare, or natural disaster. The reaction may be immediate or delayed for months. There are nightmares, insomnia, a sense of isolation, guilt, irritability and loss of concentration. Emotions may be deadened or depression may develop. Most cases settle in time, but support and skilled counselling may be needed.” – See also S v Dube 1997(1) ZLR 229(H). The above inconsistances in the evidence of the complainant, coupled with her mental condition and her delay in reporting, ought to have made the trial court hesitant in finding that the danger of false or mistaken implication had been excluded beyond reasonable doubt. The possibility remains that, if the complainant’s marriage was a happy one, the charge of rape would not have been brought against the appellant. Overall, there is no independent evidence beyond the complainant’s own testimony. Th evidence of her husband, of Mrs Noble and Mrs C Landa all amount to her own evidence she repeated to other people more than ten years after the alleged rape. In any event, the evidence of Mrs C Landa and her husband should not have been admitted for reasons that I have already highlighted. The court a quo should HB 101/04 have exercised caution bearing in mind the mental state single witness. Although the balance of the medical evidence shows that the complainant was not insane, she was certainly a disturbed person. This mental disturbance was not only after the alleged rape but beforehand as it was clear that she was a problem child before anything took place. She went for counselling even before she was admitted to Luveve Remand Home. Even her reaction on meeting the alleged rapist for the first time after the rape (some ten years or so later) seems unsatisfactory. I, however, conced that there is no standard reaction to a traumatic act of rape by the victims. The complainant obviously knew where to trace the appellant all these years, but for reasons already stated above she did not do so. She, per chance, saw him drive past a minibus in which she was a passenger. She asked the minibus driver to signal the appellant to stop which he did. The appellant stopped and she went into his car. She told him that she wanted to talk to him. The appellant said he was on his way to a funeral. He suggested that if she wanted to discuss with him they could arrange to meet after the funeral or come with her to the funeral so that they could discuss after the burial. She opted for the latter and attended the funeral with the appellant. After the funeral they drove to the city centre and parked and then discussed. She then narrated the rape to him. The appellant said he did not remember raping a virgin or raping her. He, however, apologised to her if what she “was saying was true.” She then told him that if he was genuinely sorry about the rape he should apologise to her husband as well. The appellant declined to do so. She then told him that since he declined she was going to let the law take its course. She did not go to report to the police immediately thereafter instead she went to look for the Social Services records that placed her in Luveve Remand Home in the first place. The accidental meeting with the appellant HB 101/04 was some two or so years after she had told her husband of the rape. It is clear that between 1993 and 1996 she had a deep seated neurosis possibly occasioned by her suspicion of her husband’s infidelity or homosexual tendencies. In her testimony she also tried to convince the court a quo that her report was made from more altruist motives, i.e. to call the authority’s attention to the dangers of exposing a child to an environment like the one obtaining at Luveve Remand Home. If this is so why wait so many years? It is against the totality of the evidence bearing on the issue of rape that the complainant’s testimony must be assessed, both as to its truthfulness and accuracy in determining whether the complainant was a credible witness – Ndebele v S SC-203-94 at page 5. Looking at the totality of the evidence it cannot be said that the danger of false or erroneous implication was excluded beyond reasonable doubt. It cannot be held that that the state proved its case beyond reasonable doubt. Accordingly conviction is quashed and the sentence set aside. Chiweshe J ………………………….. I agree James, Moyo-Majwabu & Nyoni appellant’s legal practitioners Criminal Division, Attorney-General’s Office, respondent’s legal practitioners