The State v Dickens Ncube

### Preamble

1

HB 254/20

HCAR 1744/20

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THE STATE

Versus

DICKENS NCUBE

IN THE HIGH COURT OF ZIMBABWE

MOYO J

BULAWAYO 5 NOVEMBER 2020

Criminal Review

MOYO J: The accused herein was convicted of rape as defined in section 65 (1) of the Criminal Law Codification and Reform Act Chapter 9:23. The accused had denied the allegations.

The facts of the matter are that complainant was 14 years old and that herself and the accused person are cousins. That on a date unknown to the prosecutor but during the month of December 2019 at around midnight the accused entered the room where complainant was sleeping. He then went over to where the complainant was sleeping and lay on top of her. The accused proceeded to insert his erect penis in the complainant’s vagina without her consent. After having sexual intercourse with the complainant the accused person left the room. The matter came to light in April 2020 when the complainant was questioned on being discovered by her mother to be pregnant. She then revealed that accused had sexual intercourse with her without her consent.

The state led evidence from the complainant Petronella Moyo who told the court that the accused was facing charges of having raped her and that she was asleep and it was at night when she woke up and discovered that accused was on top of her. She said she did not see him when he got into the bedroom hut. She only felt him on top of her. She said this happened while she slept in her bedroom hut in December 2019. She said also present in the bedroom hut was her young sister Ndibuo Moyo. The sister was 13 years old. She was questioned as to how she saw that it was accused who was on top of her and she said “I saw his face and I knew it was him.”

She was further asked what the source of light was and she said it was the moon. She said when she told the court that accused raped her, she meant that he slept with her without her consent. She used dolls to demonstrate what the accused had done to her. She said accused lay on top of her while he was naked and that she felt some pain. She was questioned as to whether she alerted anyone or screamed and she said “No”. She said after accused had left she remained in her bed. She said she did not tell anyone about what had happened. She further told the court that her grandmother questioned her after realising that she was pregnant and she then explained everything. She said that her grandmother enquired about her pregnancy in May 2020. She further told the court that her grandmother had noticed her bulging belly and questioned her on who was responsible for the pregnancy and she told her it was the accused person.

She was questioned as to why she had not told anyone about this issue before her grandmother queried her about the pregnancy and she said that she had no reason. She further told the court that before accused raped her she had sexual intercourse with one Lionel in 2018. She also told the court that Lionel was doing form 2 and she was doing form 1. Asked by the accused if the pregnancy was not by Lionel she said it was not because accused raped her in December 2019 and she had slept with Lionel in January 2019 meaning the pregnancy was accused’s.

I find issue with complainant’s version of events as follows:

The identity of the accused person

– the identity of the accused person was not conclusively canvassed by the court a quo in that all complainant says is that she saw accused’s face as he lay on top of her raping her. She says this was inside her bedroom hut but she could see him because of moonlight which was the source of light. A question immediately arises that if it was at night obviously it was dark, how could complainant lying on her bed say she saw accused’s face through the moonlight? How was the moonlight inside the bedroom hut we are not told. Was the door open? Was there a beam through the window? We are not told, for if it is not explained how moonlight made it possible for complainant to see accused’s face whilst on her bed that becomes a mystery. This is worsened by the fact that she says she did not see him as he entered.

The 2nd problem is that complainant was not alone in this bedroom hut, she was with another child a 12 year old. She neither screamed nor did anything neither was she threatened or prevented from screaming by the accused person. This is worrisome especially if you look at the sexual complaint together with the next issues that I will point out.

The following day, she did not report to the earliest available person. She kept quiet and she proffered no reason for her failure to report the sexual assault.

She only divulged the rape almost 6 months after the incident when she was questioned about her bulging tummy by her grandmother. In fact she tells the court that she told the grandmother that she had been raped by accused after the grandmother asked her as to who was responsible for the pregnancy, so the sexual complaint was never made at the earliest possible opportunity and even when she spoke to her grandmother she was not reporting the sexual assault but she was explaining the pregnancy. Such a complaint cannot be held to have been made freely and voluntarily, in fat there was every incentive for the complainant to implicate the accused because here she was pregnant and her grandmother needed an explanation for the pregnancy. Accused could have been used as a scapegoat seeing since December 2019, complainant had decided to keep the matter to herself for no reason until when she had to come up with an explanation for her pregnancy.

Complainant had a boyfriend and was already sexually active. The boyfriend may well have been responsible for the pregnancy which could be the reason why she kept quiet for 6 months with the pregnancy. She may as well have implicated the accused to protect her boyfriend who was still attending school and was in form 2. On this point, it is also important to note that in her examination in chief she told the court that she had last slept with her boyfriend Lionel in 2018, but however, when being asked by accused under matters arising she said it could not have been her boyfriend as she had intercourse with Lionel in January 2019 and yet in her evidence in chief she had said in 2018.

The complainant’s mother was the next to testify and she said that she realised that complainant was pregnant and she questioned her (page 18 of the handwritten record of proceedings). She said that she then asked the complainant’s grandmother to talk to her and complainant initially denied the pregnancy but later admitted. The grandmother also testified and she told the court how the sexual complaint came about. She said, (at page 22 of the handwritten notes on the record of proceedings).

“I called complainant and asked her about her pregnancy. Initially she denied being pregnant. I insisted and told her from my experience she was pregnant. I asked her who was responsible, whether it was any of the local boys who were interested in her but she denied. At the end, she offered to tell me the truth and she said it was accused who was responsible for her pregnancy.’ (emphasis mine)

To start with, the sexual complaint was forcibly extracted by the grandmother from the complainant. I say so for the following reason.

Complainant knew that she was pregnant and for almost 6 months she kept this information to herself for no apparent reason.

When the sexual complainant was made it was tainted by the pregnancy enquiries.. The grandmother was interested in the pregnancy, hence the discussion was about complainant explaining the pregnancy and she had to explain it, she had no choice because it was there.

Complainant initially denied that she was pregnant, but why? If she had been raped by the accused and kept it to herself for no reason, for 6 months, here an opportunity was presenting itself for her to volunteer the information, but she did not. She dismissed being pregnant altogether.

Complainant finally offered her grandmother to tell the truth, why was she not telling the truth right away, on being questioned? Why did she find it so hard to report the sexual assault and consequently the pregnancy? Why was she denying being pregnant and yet she had done no wrong and had been sexually assaulted. She finally offered to tell the truth meaning that she had initially lied. How true then is the truth that she later offered to tell? Why was she lying in the first place about the pregnancy if she could not lie about the allegations against the accused person? She is not a reliable witness because she tells people lies until at the end she offers to tell the truth. This is worsened by the fact that she decided not to scream to alert people of the sexual assault, she kept quiet for almost 6 months, she denied being pregnant when questioned about the pregnancy.

Complainant was also sexually active per her own testimony. She has a boyfriend whom she had had sexual intercourse with at some point. The grandmother further told the court that she had asked the complainant why she did not report the rape to her mother and complainant had said she had just decided not to tell her. Again, the grandmother further stated that when she asked the complainant why she had not screamed (purportedly during the rape ordeal), complainant had just kept quiet. So clearly, complainant had no reason for not alerting people during the ordeal or soon after, she also had no reason not to tell her mother even after the incident had occurred.

The grandmother also told the court that complainant said accused had raped her on 2 occasions (page 24 of the record) but complainant never said that to the court. Not only did she fail to tell people within a reasonable period from the time she was sexually assaulted, she still did not say anything even when she discovered that she was pregnant but before being queried. Not only did her problematic behaviour end there, she even tried to deny when asked by her grandmother. Due to the afore-stated analysis, it is my considered view that the complaint by the complainant in the circumstances I have explained herein does not meet the standard required for the admissibility of sexual complaints. This court also is alive to the fact that sexual allegations are very easy to concoct against an accused person and they are also very difficult to rebut as there are usually not witnesses to the act complained of which is the reason why the volition and freedom as well as the promptness of a sexual complaint are the yard stick for proof beyond a reasonable doubt. In this case, the circumstances of the alleged rape themselves create a problem, with the complainant not screaming for no reason and complainant deciding to sleep after the ordeal and not alerting anybody as well as the identity of the accused person. The complainant kept quiet for no reason for almost 6 months. So the complaint was not made promptly. The complaint was extracted through demands for the explanation for the pregnancy that is how it came about so it was never free. The delay of 6 months and the questioning that followed resulting in the extraction of the complaint vitiate it. It can never be found that in such a case the complaint passes the test required so as to prove that complainant was indeed raped by the accused person beyond a reasonable doubt. It is for these reasons that I find that this conviction is not safe and must be quashed.

I accordingly order as follows:

“The conviction and sentence are set aside. The order of the court a quo is substituted with the following:

The accused person is found not guilty and is acquitted.”

Takuva J ………………………………………. I agree