Akulina Mudzamuri v Elisha Singano and The State

### Preamble
1
HH 631-18
HC 8176/18
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AKULINA MUDZAMURI

versus

ELISHA SINGANO

and

THE STATE

HIGH COURT OF ZIMBABWE

MUSHORE J

HARARE, 10 October 2018

Review application

MUSHORE J: This is an application for the review of a decision of the Magistrates Court. The applicant believes that the trial court’s decision in refusing to grant a certificate for the termination of the minor child’s pregnancy was bad in law in that she states that the Magistrates determination ought not to have been premised on the issue of consent. Applicant submits that the court a quo ought to have granted the certificate for termination on the basis that there was a reasonably possibility that the foetus was conceived as a result of unlawful intercourse.

The pregnant minor was aged 16 years old when the alleged sexual abuse took place. She is a pupil and a boarder at a school called George Emanuel School. The details of the incident were that she was ambushed by the school administrator called Taurai Bidi. This is what she alleged happened:-

“It was Saturday whilst I was waiting for a bus to go to hostels as they are not at the same place. Administrator came and took me. I was shocked when he indicated that he liked me. He forced himself on me when I struggled with him he pushed me to the table and pinned my hands from behind. I had sports kit so he removed my short and forced himself on me.

…I was lying on the table and he was holding up my hands from behind. He then forced himself on me from behind.”

The court a quo weighed the evidence to determine the issue of consent given by Tanyaradzwa, if any, and arrived at a conclusion that Tanyaradzwa had ample time to report or raise the alarm of the abuse and that because she did not do so, the reasonable likelihood was that she may have consented to sexual intercourse. The trial court stated that the opportunity for her to make a report arose firstly when she saw the gardener immediately after the incident which was an opportune moment. The trial court also questioned why Tanyaradzwa did not report the incident to her mother at an opportune time when she went home on an exeat weekend and then when she saw her mother after the school term ended. It was only after she realised that she was pregnant and after attempting suicide that she reported the matter. When asked why she delayed reporting the matter considering that the incident had occurred on the 12th May 2018 and that she made a report on the 28th August 2018; that being after over three months, she testified that she feared ridicule from her friends when she said that:-

“I was afraid other friends would laugh at me, the Administrator was going to deny it. I did not know how to narrate the story to my mother”

The trial court also called into question why Tanyaradzwa did not report the alleged sexual abuse to any teacher or headmaster throughout the three month period.

The court a quo then refused to grant a certificate for termination of pregnancy on the basis that the facts pointed to an offence in terms of s 70 of the Criminal (Codification and Reform) Act [Chapter 9:23] which does not fall within the circumstances described in s 4 (c) of the Termination of Pregnancy Act [Chapter 15:10].

The issue upon which this case can be resolved thus, is whether or not there was unlawful intercourse. Rape is clearly a crime which falls within the defined parameter of s 4 (c), but because the criminal charges have not been tried and tested yet; then the Constitutional presumption of innocence of the accused becomes fair play. Thus it was necessary for the trial court to evaluate the evidence and arrive at an opinion to whether or not the circumstances point to a rape having taken place, bearing in mind that Tanyaradzwa was just over sixteen when the incident took place.

Unlawful intercourse is defined under s 61 (b) of the Criminal Code as follows:-

‘……………a…………..

…………………………………..

“unlawful sexual conduct” means any act the commission of which constitutes the crime of rape, aggravated indecent assault, indecent assault, sexual intercourse or performing an indecent act with a young person ‘or sodomy;

“young person” means a boy or girl under the age of sixteen years”

Tanyaradzwa was 16 when the alleged incident took place. The court a quo was thus required to test her story in terms of s 69 of the Code to determine whether consent was either absent or vitiated. Section 69 reads:-

“Cases where consent absent or vitiated

(1) Without limiting Part XII of Chapter XIV, a person shall be deemed not to have consented to sexual intercourse or any other act that forms the subject of a charge of rape, aggravated indecent assault or indecent assault, where the person charged with the crime

(a) uses violence or threats of violence or intimidation or unlawful pressure to induce the other person to submit; or

(b) by means of a fraudulent misrepresentation induces the other person to believe that something other than sexual intercourse or an indecent act, as the case may be, is taking place; or

(c) induces the other person to have sexual intercourse or to submit to the performance of the indecent act, as the case may be, by impersonating that other person’s spouse, or lover; or

(d) has  sexual  intercourse  or  performs an  indecent  act  upon  the  other  person  while  that  other  person  is asleep and that other person has not consented to the sexual intercourse or the performance of the act before falling asleep; or

(e) has sexual intercourse or performs an indecent act upon the other person while that other person is hypnotised or intoxicated from the consumption of drugs or alcohol so as to be incapable of giving consent to the sexual intercourse or the performance of the act, and that other person has not consented to the sexual intercourse or the performance of the act before becoming so hypnotised or intoxicated.

(2) The burden of proving that a person referred to in paragraph (d) or (e) of subsection (1) gave consent to sexual intercourse or the performance of an indecent act before falling asleep or becoming hypnotised or intoxicated, as the case may be, shall lie with the person charged.”

In casu, the burden of proving that consent was either absent or vitiated fell upon the complainant Tanyaradzwa. This is so bearing in mind the doctrine of the presumption of innocence.

Refer: Robert Gumbura v The State HH 665-17 in which I cited the authorities in extensio on the question of consent.

In reviewing the determination of the court a quo and the sentiments he expressed, I have come to my own analysis and the following facts are cause for me to believe that the issue of absence or vitiation of consent was not substantiated by the complainant. In order for a rape to be established:-

“1.	The complaint must have been made voluntarily and not as a result of “questions of a leading and inducing and intimidating nature;

2.	It must have been made ‘without undue delay but at the earliest opportunity which under all the circumstances, could reasonably be expected, to the first person to whom the complainant could reasonably be expected to make it;

3.	The complainant must give evidence”

Refer: S v Petros 1967 RLR 35 (G)

Complainant told the court that her fear was that she would be ridiculed. She said she also did that she did not know how to narrate the story to her mother. However, she offered no explanation for why she did not inform the school teachers or head or even the gardener for that matter and that really calls into question the real reason why she decided not to confide in anyone. I do not perceive her conduct in the circumstances to reflect that she was a victim in any manner as is suggested in the various scenarios mentioned by section 69 of the Code. There was in my view due delay in reporting the alleged assault given the opportunities as they presented themselves to her. The administrator did not threaten her at any stage. She was not alarmed at the sexual incident but was more alarmed at the news of it reaching other people. She wasn’t surprised when after the incident he told her he would come back to her and didn’t. He certainly never threatened her with any consequences.

The common law test for a report to be prima facie credible on a balance of probabilities, is that it should have been made “at the earliest possibility” or “without due delay to the first person that the complainant could reasonably be expected to make it’. It would appear from a reasonable assumption that the first person to whom she should have reported would have been her mother. From the facts of the matter the first person the complainant told was indeed her mother. Her mother’s testimony is devoid of detail and sentiment about the reported incident. But what is certain is that the complainant forwent the earliest opportunity which would have been reasonable to make a report of the incident to her mother.

The complainant offered no plausible reason to deem the court to substantively doubt that she consented. I cannot put it more delicately than that. To that extent, I appreciate the court a quo’s reasoning that the facts as she explained them did not suggest that there was either an absence or a vitiation of consent on the part of Tanyaradzwa. There is no reason for me to conclude that the determination a quo was grossly irregular in terms of section 26 of the High Court Act [Chapter 7:06].

Accordingly I confirm that the proceedings of the trial court were in accordance with real ad substantial justice. I therefore order as follows:-

“The application is dismissed”