S v Moyo (812 of 2022) [2022] ZWHHC 812 (30 May 2022)

1 HH 812-22 CA 334/21 CRB R 422/20 CEPHAS MOYO versus THE STATE HIGH COURT OF ZIMBABWE ZHOU & CHIKOWERO JJ HARARE, 30 May 2022 Criminal Appeal J Ndomene, for the appellant C Muchemwa, for the respondent CHIKOWERO J: 1. This is an appeal against the judgment of the magistrate’s court convicting the appellant of rape as defined in s 65 of the Criminal Law Code. 2. The trial court found that the appellant had appeared at the complainant’s mother’s residence, while the mother was away, and raped the complainant. That girl was 10 years old at the time. 3. The appellant was 43 years old. 4. The medical report, which was produced by consent, proved that penetration was effected. The medical examination was conducted a day after the rape. 5. The complainant made a voluntary and prompt complaint of the rape to a neighbour, who was an adult female, on the very day that the offence was committed. That neighbor testified. 6. The complainant made another complaint to her mother, on the same date, as soon as the latter returned home. 7. The complainant’s younger sister also testified that there was an occasion when the appellant and the complainant were alone in the house, which was locked, when the former had come to repair a refrigerator. HH 812-22 CA 334/21 CRB R 422/20 8. The appellant’s defence that he was being falsely incriminated as the person who had committed the offence was rejected as false. The court found that there was no bad blood between him and the complainant’s mother because this was the fourth time that he had been tasked to repair the refrigerator in question. If there was bad blood as averred by him, then there would not have been the working relationship that we have pointed out. 9. There is no merit in the appeal against the conviction. 10. The conviction turned on the credibility of the state witnesses and the contents of the medical report. 11. Indeed, the complainant gave a detailed account of the rape and made use of the anatomically correct dolls to demonstrate her ordeal. Her evidence was not at all dented under cross-examination. 12. It was not in dispute that the appellant appeared at the scene of crime on the day in question. What he had been tasked to do was to repair the refrigerator 13. There were no fundamental inconsistencies between the evidence of the state witnesses. The complainant’s young sister corroborated her elder sister’s testimony that the appellant caused about 7 other children who were playing in the house to go outside lest they would misplace his tools. He thereafter locked the house and remained with the complainant. The complainant testified that it was during that spell that he committed the offence. 14. The neighbor was correctly believed. She testified on the voluntary and spontaneous nature of the complaint, its details and the money that the complainant had. The money came from the appellant, to buy the complainant’s silence. 15. Whether the complainant told her mother or the neighbor that she felt pain during the ordeal is splitting hairs. The medical report disclosed fresh tears of the complainant’s hymen at 9 o’clock. The medical examination, as we have pointed out, was carried out the very next day. 16. The “bad blood” defence was correctly rejected. Firstly, the initial complaint was made to the neighbour. The complainant’s mother had no role in the making of that complaint. She had not even returned home. When she did, a second complaint HH 812-22 CA 334/21 CRB R 422/20 was made to her. Secondly, the complainant’s mother could not have been engaging the appellant to go so far as to ask the latter to go to the former’s house to repair the refrigerator, in the mother’s absence, if there existed the bad blood averred by the appellant. 17. It was only in his defence case that the appellant claimed that he could not have committed the offence because he was in the company of one Madzibaba Rodrick. Called as a defence witness, Rodrick testified that he did not know what happened in the house because he never sat foot therein. In other words, Rodrick testified that he remained outside as the appellant went inside the house. 18. Called to testify on the bribe that the complainant’s mother allegedly demanded from the appellant, the second defence witness testified on something completely different and of no consequence to the trial. Both he and Madzibaba Rodrick added no value to the appellant’s defence 19. In all the circumstances the appeal against conviction is completely wanting in merit. 20. The appeal against the conviction be and is dismissed. CHIKOWERO J:………………………………… ZHOU J:Agrees…………………………………. Maphosa and Ndomene Legal Practitioners, appellant’s legal practitioners The National Prosecuting Authority, respondent’s legal practitioners