Emilia Chinounda v The State

### Preamble
1
HH 218-13
CA 809/08
REF CRB R248/07
EMILIA CHINOUNDA
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==============================

EMILIA CHINOUNDA
versus
THE STATE

HIGH COURT OF ZIMBABWE
HUNGWÉ & MAVANGIRA JJ
HARARE, 20 November 2012 & 17 July 2013

Criminal Appeal

D Matimba, for the appellant
Mrs S Fero, for the respondent

Introduction

HUNGWÉ J: This appeal concerns a mother who hid her young daughter’s friend from her parents who had been frantically searching for her everywhere. The two young friends had left the complainant’s residence and went to the appellant’s residence. Although she was confronted by the complainant’s parents regarding their daughter’s whereabouts, the appellant denied sheltering and secreting the victim away.

Background

The appellant was convicted on one count of kidnapping as defined in s 93(1)(b) of the Criminal Law (Codification and Reform) Act, [Cap 9:23], (“the Code”) and three other counts of aggravated indecent assault as defined in s 66 of the Code. She was sentenced to seven years imprisonment on each count making a total of 28 years. Of that sentence, eight years were suspended for five years on condition of good behavior. Dissatisfied, she noted an appeal to this court against both conviction and sentence on 27 August 2008.

Heads of Argument

I observe that the original notice and grounds of appeal did not comply with r 22(1) of the Supreme Court (Magistrates Court) (Criminal Appeals) Rules, Statutory Instrument 504 of 1979
 in that the grounds did not “clearly and specifically set out the grounds of appeal”. First ground recited that:

“It is humbly submitted that the court a quo misdirected itself in law and fact when it held that the appellant kidnapped the complainant.”

In S v Jack 1990 (2) ZLR 166 the Supreme Court held that a “notice of appeal” without meaningful grounds of appeal is not a notice of appeal and cannot be amended. In terms of r 47 if the notice is a nullity and the time for noting an appeal has lapsed, the right to appeal must be deemed to have lapsed. (See also S v McNab 1986 (2) ZLR 280 (SC)). This court has for some time decried the failure by legal practitioners to comply with the Rules of Court in this regard. Time has surely come for this court to non-suit offending “appellants”. The appellant realised this short-coming in complying with the Rules. She filed an “amended notice and grounds of appeal” on 14 November 2008, some three months later. The amendments to the grounds of appeal are governed by s 23(3) of the Rules which require such amendments to be effected within seven days of the filing of the magistrate's comments on the grounds of appeal. In this case there were no comments from the trial magistrate as she has since left service. She would, in all probability, have pointed out that there was no appeal. In terms of r 47, if an appeal is a nullity and the time of noting an appeal has elapsed, the right to appeal must be deemed to have lapsed. See S v Jack’s case, supra, at p 168. Where the presiding magistrate does not point out that an appeal is a nullity, then the Attorney-General, as the respondent, should have done so. Regrettably, the respondent has not taken this point.

The heads of argument filed on behalf of the appellant on 6 September 2012 had attached to them a transcription of the record of proceedings in the trial of the appellant’s husband. Mr Matimba, for the appellant, could not demonstrate the relevance of this record nor could he point to any rule or authority upon which he relied for the irregular filing of heads of argument and transcription of a record of a different trial. What constitutes the record of proceedings for the purposes of an appeal is governed by r 24(2) of the Rules. Only the original record of proceedings and certified copies of that record, prepared by the clerk of court in terms of the Rules, constitute the record of appeal. In the event, any reference to that the record was excised from the heads of argument, as was the record itself.
 The heads of argument raised one new ground and repeated those grounds of appeal in the abandoned notice and grounds of appeal, in addition to those that appear in the amended notice and grounds of appeal dated 14 November 2008. This new additional ground was framed thus:

“(v) It is further submitted that the court *a quo* erred in law and fact in failing to adequately apply the cautionary rule given the inconsistencies in the complainant’s evidence and her suspicious state of mind.”

The appellant was not legally represented in the original trial until after the evidence was led. She secured legal counsel before judgement was rendered. Counsel applied for the recalling of witnesses. This indulgence was granted but counsel did not take it up preferring instead to make written closing submissions on appellant’s behalf. Those submissions do not seem to have received the trial magistrate’s attention. Recognising the need to protect, afford, promote and uphold the appellant’s fair trial rights, I decided to overlook the deficiencies regarding the notice of appeal as well as lack of compliance with r 22(1) of the *Supreme Court (Magistrates Court) (Criminal Appeals) Rules* regarding the heads of argument and proceed to deal with the merits of the appeal in the following manner.

**The Evidence**

The record reflects that the appellant was convicted on the following facts which were either common cause or not seriously in dispute. The complainant was a friend to the appellant’s daughter. They regularly visited each other’s respective homes. As would be expected, their respective parents were aware of this friendship. Complainant’s father would, at times, pay school fees for the appellant’s daughter if the need arose. On 16 December 2006, complainant and the appellant’s daughter left complainant’s residence together. When she did not return home, complainant’s father was worried. He went out to the appellant’s home in search of his daughter. On five occasions complainant’s father had approached the appellant. On the first occasion the appellant denied that complainant and her daughter had been home. On one occasion she deflected attention from herself by claiming that the appellant’s father was pursuing wrong leads. Complainant’s father then received an anonymous telephone call which convinced him that his daughter was detained at the appellant’s residence. He engaged the police. Even in the presence of police, the appellant professed ignorance on the whereabouts of the complainant. On the final occasion, complainant’s father and mother visited the appellant’s residence in search of their daughter. Complainant’s father spoke to the appellant’s husband. He was assured by the appellant’s husband that he would see his daughter the following day. As they were leaving, someone in their company heard his daughter’s voice coming from the appellant’s residence. She was found at complainant’s residence on 25 January 2007.

The appellant’s defence was that when the complainant and her daughter arrived from complainant’s home they told her that complainant’s mother wanted to assault the complainant. She then gave complainant refuge. Complainant implored the appellant not to disclose her presence at her residence since she feared further assaults from her mother. This was the reason why she kept complainant away from her parents. She denied inserting her fingers into complainant’s vagina.

The evidence placed before the court consisted of the medical examination report on the complainant and the oral evidence from both the complainant and her father. The medical examination conducted on 23 February 2007 revealed that her hymen was open and that her vagina admitted one finger. The report also gave her mental state as normal. Her age is given in the medical report as 17 years. The trial court also found that the complainant was kept under guard and prevented from regularly taking a bath. She however would be taken from one prophet to another under one guise or another. She was never left alone. She was lured away from her parent’s home by the appellant’s daughter, her friend. The same friend, together with her elder sister, on one occasion, assaulted her in order to prevent her from making good her escape. All this occurred, the trial court found, at the behest of the appellant.

The learned trial magistrate, in her judgment, rejected the claim by the appellant that she gave complainant motherly care. The magistrate wondered why, if indeed this were so, complainant came up with the story she gave to court. In the trial court’s assessment of the appellant’s credibility it noted that in one encounter with the complainant’s parents who were making frantic efforts to find complainant, the appellant had given them complainant’s clothes but persisted in her denial that complainant was under her custody. Consequently the learned trial magistrate rejected appellant’s plea that she behaved foolishly when she denied that complainant was in her custody.

The grounds of appeal put forward by the appellant raise an important question regarding the nature of the crime of kidnapping in our jurisdiction. The question is whether the Code modified the definition of the common law crime of kidnapping so as to make the age of the victim an essential element of that offence.

**What Constitutes Kidnapping at Common Law?**

The common law crime of kidnapping was considered in *S v Dzimuri & Ors* 1997 (2) ZLR 27 (HC) where this court stated:

“In Hunt's **South African Criminal Law and Procedure vol II** the definition of kidnapping is given as ‘unlawfully and intentionally depriving a person of liberty of movement and/or his custodians of control’”.

In *S v Masuku & Another* 1989 (3) ZLR 33(SC) @ p 37 the following appears:

“Kidnapping is defined in Hunt South African Criminal Law and Procedure Vol II 2 ed p 509 thus:

‘Kidnapping consists in unlawfully and intentionally depriving a person of liberty of movement and/or his custodians of control.’”

Clearly, then, the nature of the offence is an attack on, and the infringement of, the personal liberty of the individual. The law is concerned with two things: the protection of personal liberty (a) from any interference and (b) from any restraints on the freedom of movement. So that the relevant ingredient of the crime is the absence of consent of the person who is taken, even where that person is a child. A seizure of a person with evil intent without his consent, however transient, is an interference with his personal liberty.

In *R v Long* 1970 (1) RLR 1 (AD) at 11; 1970 (2) SA 153 (RA) at 160H, MACDONALD JA (as he then was) quoted with approval the following passage from the judgment of MAASDORP JP in *R v Adams and Ibrahim* 1911 CPD 863, to illustrate that the relevance of time may be of importance as providing evidence of the accused's intention:

“It was argued that there must, at least, be the intention permanently to remove the girl from the custody of her father. Now, the length of time for which a girl may be removed in a case of this kind may be of importance as showing the intention of the parties. A very short time may be sufficient to show that there was the intention of removing the girl out of the custody of her father. It may be very difficult, if the time is very short, to say what was actually the intention, but here the intention was not only to take the girl to the house where she was kept for a considerable period - some hours - but after that she was to be further conveyed to Port Elizabeth. That intention was only frustrated by the girl being followed up by her relatives."

In $v F 1983 (1) SA 747 (O), the judgment of which is in Afrikaans, the headnote reads as follows:

"In regard to the crime of manstealing (kidnapping) of a young child, as soon as there is an intention to violate the parental authority and effect is given to that intention by removing the child, with or without the consent of the child, the offence is committed and the period of time for which the kidnapper plans to remove the child from the parental authority is not relevant except in cases where the de minimis non curat lex principle is applicable."

Modern South African authority now recognises that the intent involved in kidnapping may be said to differ according to whether the victim is an adult or a child. Thus in Hunt, South African Criminal Law and Procedure vol II, 3 ed by Milton, at p 547, it is said that:

"X must intend (actually or legally) to deprive Y of liberty or his custodian of control."

The definition of the offence which appears in Milton's edition of Hunt as:

"...kidnapping consists in unlawfully and intentionally depriving a person of liberty or movement and/or his custodians of control" similarly acknowledges both species of the offence and has been cited with approval in numerous South African and Zimbabwean cases, for instance in $v Mellor 1990 (1) SACR 347 (W) at 351I and in $v Masuku & Anor, supra, and has been adopted in both jurisdictions. The concept was referred to in passing in Masuku supra where KORSAH JA opined that a seizure of a person with evil intent without his consent, however transient, is an interference with his personal liberty.

As soon as there is disclosed an intention to infringe the parental authority and effect is given to that intention through the removal of the child, with or without the child's consent, the crime is committed. I can perceive no reason why the period of time for which the kidnapper contrives to remove the child from the parental authority is relevant save in cases where the principle *de minimis non curat lex* is applicable. If the above is a correct statement of the common law position, what has the Criminal Code changed? Put differently the question is; has the Criminal Code altered the common law position?

**Has the Criminal Code altered the common law position?**

The relevant provision of the Code in s 93 states:

**“93 Kidnapping or unlawful detention**

(1) Any person who

(a) .................

(b) not being the lawful custodian of the child concerned

(i) deprives a child of his or her freedom of bodily movement, intending to cause such deprivation or realising that there is a real risk or possibility that such deprivation may result; or

(ii) detains or keeps a child, intending to deprive the child’s lawful custodian of his or her control over the child or realising that there is a real risk or possibility that such deprivation may result; shall be guilty of kidnapping or unlawful detention and liable

A. to imprisonment for life or any shorter period, except in a case referred to in sub-para B; or

B. where the kidnapping or unlawful detention was committed in the mitigating circumstances referred to in para (b) of subs (3), to a fine not exceeding level seven or imprisonment for a period not exceeding two years or both.

(2) An accused may be convicted of kidnapping or unlawful detention

(a) whatever the manner in which the accused deprived the adult or child of his or her freedom of bodily movement or the lawful custodian of his or her control, whether by the use of threats or force or by the use of fraudulent misrepresentation or otherwise; and

(b) whatever the period over which the accused deprived the adult or child of his or her freedom of bodily movement or the lawful custodian of his or her control”.


The simple answer is that it has not. It seems to me that useful insight is gained by making regional and international comparatives regarding whether the above provision made the inroad suggested by the appellant, and, if so its effect.

Whilst the Zimbabwean Criminal Code provides for a distinction in subs (1) (a) and (b) between an adult and a child victim, in my view it is a distinction without a difference. The true distinction is apparently for the purpose of sentencing which is captured is s 93 (3). The same yardstick is still applicable in deciding whether the crime of kidnapping as defined in the Code, has been committed. It is important to note the domestic provisions in s 93 are consistent with Zimbabwe’s regional as well as international treaty obligations. At the regional level, the preamble to the African Charter on the Rights and Welfare of the Child 1990 states that “the child occupies a unique and privileged position in the African society” and requires legal protection as well as “particular care with regard to health, physical, mental, moral and social development. A child is defined as “every human being below the age of 18 years” (article 2). Children should also be protected against all forms of economic exploitation and from performing work likely to be hazardous (article 15) and against all forms of torture, maltreatment and abuse (article 16); harmful social and cultural practices (article 21); all forms of sexual exploitation or abuse (article 27); the use of narcotics and illicit drugs (article 28); and abduction, sale, trafficking, and use in begging (article 29). It is also important to observe that the African Charter on the Rights and Welfare of the Child is modeled on the provisions of the UN Convention on the Rights of the Child, 1989, which is the most comprehensive document on the rights of children. See also the Legal Age of Majority, 1982. At the international level, the 2009 version of Canada’s Criminal Code, in s 279, defines the offence of “kidnapping” as follows:

“Every person commits an offence who kidnaps a person with intent to cause the person to be confined or imprisoned against the person’s will to cause the person to be unlawfully sent or transported out of Canada against the person’s will; or to hold the person for ransom or to service against the person’s will.”

The Canadian Code adds that “the fact that the person in relation to whom the offence is alleged to have been committed did not resist is not a defence unless the accused proves that the failure to resist was not caused by threats, duress, force or exhibition of force.” The Canadian Code bears similar wording with the Zimbabwean Code and admits of similar interpretation.
 The evidence placed before the trial court shows that the complainant was 17 years old. Her age was never put in dispute. Even if she was older, for which there is no evidence placed before the court, the propriety of the conviction would not have been affected as the offence of kidnapping had been proved. The nature of the offense of kidnapping is an attack on, and infringement of, the personal liberty of the individual. The offence contains four ingredients as follows: the taking or carrying away of one person by another, by force or by fraud, without the consent of the person so taken or carried away or without lawful excuse.

The Criminal Code, in my view has not in any way altered the common law position regarding the crime of kidnapping. Consistent with the common law position, the Code provides for distinct recognition of the offence as it relates to children and addresses its implication on parental authority. The fact that the child consents to her removal or spriting away is not a defence. Parental control is specifically recognised where a child is involved. In *casu*, in any event, the complainant’s age of 17 years was accepted during trial by the appellant as well as the court and the legal practitioner who represented the appellant later. That this was her age must be taken as undoubtedly accepted by appellant from the outset since complainant was a friend of the appellant’s daughter. Appellant was well aware of complainant’s apparent age as she was familiar with her. The state outline as well as the medical report both give her gave as 17. The trial proceeded on that basis. Complainant was a friend of appellant’s child. She therefore knew or ought to have realised that complainant was not an adult as much as her own daughter, who was complainant’s friend, was not. In any event, the charge as framed, alleged that the appellant, not being “the lawful custodian of a child named Leocardia Sithole detained and deprived her of her freedom of bodily movements”. The wording, in my view, wholly captures and incorporates the essential elements that constitute the crime of kidnapping. I am not persuaded that there was no evidence of the age of the complainant. Nor am I persuaded to accept that such evidence as there was, did not meet the criteria required by the Code. The evidence led at trial showed the method by which complainant was lured and subsequently enmeshed in appellant’s nefarious activities. Complainant described the sordid details regarding appellant’s predatory behavior towards her which included inserting her finger into complainant’s vagina.

The conviction on this count is, in my view, therefore proper.


Did the court adopt an appropriate approach to single witness evidence in sexual offence?

In terms of s 269 of the Criminal Procedure and Evidence Act, [Cap 9:03] an accused may be convicted on the evidence of a single competent witness. There is no rule of thumb test or formula to apply when it comes to the consideration of the credibility of a single witness. The question is what weight, if any, must be given to the evidence of a single witness.

The correct approach in determining the guilt of an accused is, as pointed out in S v Chabalala 2003(1) SACR 134 (SCA) 139i-j to 140a, to weigh up all the elements which points towards the guilt of the accused against all that are indicative of his innocence, taking proper account of inherent strengths and weaknesses, probabilities and improbabilities on both sides and, having done so, to decide whether the balance weighs so heavily in favour of the State as to exclude any reasonable doubt about the accused’s guilt. See also S v Francis 1991 (1) SACR 198 (A).

In arriving at its decision the trial court relied on the evidence of a single witness, namely, the complainant and found her to be an honest witness. This Court accepts that the trial court was better placed to make such a finding on credibility. It is however, trite that a trial court should not readily rely on the evidence of a single witness. In such cases the court has to apply the cautionary rule. See DT Zeffert in The South African Law of Evidence 2nd ed at p 961.

The dictum of De VILLIERS JP in R v Mokoena 1932 OPD 79 at 80 is to the effect that, in such instances, the evidence of a single witness must be “clear and satisfactory in every material respect”. As I have stated above, there is no rule of thumb test or formula to apply when it comes to a consideration of the credibility of the single witness (see the remarks of RUMPFF JA in S v Webber 1971 (3) SA 754 (A) at 758). The trial judge will weigh his evidence, will consider its merits and demerits and, having done so, will decide whether it is trustworthy and whether, despite the fact that there are shortcomings or defects or contradictions in the testimony, he is satisfied that the truth has been told. The cautionary rule referred to by De VILLIERS JP in 1932 may be a guide to a right decision but it does not mean "that the appeal must succeed if any criticism, however slender, of the witnesses’ evidence were well founded". It has been said more than once that the exercise of caution must not be allowed to displace the exercise of common sense. See also S v Banana 2000 (1) ZLR 607 (SC).

In the present matter the magistrate took into account the tender years of the complainant, both at the time of the incidents and at the time she testified. The magistrate dealt carefully and thoroughly with the inconsistencies in the evidence of the complainant. The magistrate commented fairly on her demeanour, a finding in which an appeal court is slow to interfere. A perusal of the evidence of the complainant confirms the finding of the magistrate that she was a good witness who satisfied the cautionary rule relating to young and single witnesses. She did not overstate her evidence. I agree with the magistrate that her evidence could only support a finding that there were three occasions on which she could identify the appellant as having sexually interfered with her.

It is not clear what appellant meant in the submission that the complainant was of “suspicious state of mind.” Reference is made in the heads to complaints about dizziness by the complainant and what the appellant said regarding her “real” mother. How this translates to a “suspicious state of mind escapes me. There was no suggestion that complainant did not fully appreciate the nature of the proceedings before which she was testifying nor did anyone involved in the trial doubt her sanity. There is no sound basis, in the trial proceedings, for this ground to have been raised. It is dismissed. Consequently, I am therefore satisfied that the conviction on the charge of aggravated indecent assault was proper.

I am consequently satisfied that there is no merit in the appeal against conviction on both crimes.

**The Sentence**

However the appeal against sentence calls for attention. The Magistrate correctly took a dim view of the appellant’s conduct. She remarked that the appellant kidnapped her daughter’s friend and went on to administer unknown herbs to her privates whose purpose is not known. Her conclusion that the complainant is no longer herself is however not supported by evidence nor is her acceptance as fact that the complainant now sees mysterious things. It is an established fact that different types of abuse may trigger a range of different psychological responses. Whether this is the case here would have required expert evidence before the court could proceed to sentence the appellant on the basis that complainant now suffers from these claimed effects. The trial court felt that a sentence of seven years on each count was deserved in the circumstances. In assessing sentence from this perspective, the learned magistrate misdirected herself. This court is therefore at large on sentence.

In S v Masawi and Another 1996 (2) ZLR 472 (SC) a sentence of 15 years was found to be appropriate where the victim of kidnapping was not found. In S v Chitiyo 1987 (1) ZLR 235 a sentence of 9 years on each count was imposed on two counts of kidnapping where the accused was also convicted of other counts of armed robbery among other crimes. The sentences were ordered to run concurrently. In S v Chitiyo, supra, @ p 240 DUMBUTSHENA CJ wrote:

“The correct approach to sentencing an accused person for a number of different crimes was well put by CAIRNS LJ in R v Bentham & Ors (1972) All ER 271 (CA) who stated at 276e-g:

"But when a man is being sentenced at the same time for a number of different crimes, it is necessary, when fixing the length of each sentence, to take into account whether it is going to be made consecutive to or concurrent with other sentences. Thus when a man is being sentenced for, say, four separate burglaries, it is not unusual for him to be sentenced to three years on each count concurrent. While each count, considered alone, merits three years' imprisonment, 12 years would be too severe a punishment for the whole course of crime. Now we considered that the trial judge was right to impose on the appellants Bentham and Baillie sentences on count 9 which were consecutive to those on count 1, but the court reached the conclusion that the addition of five years to 12 years in Baillie's case and of four years to 11 years in Bentham's resulted in a total period of imprisonment which in all the circumstances was excessive."

The above passage applies in the instant case with equal force. Whilst the sentence of 7 years for the one count of kidnapping cannot be said to be too severe, it is the 7 years for each count of aggravated indecent assault which we find, when ordered to run consecutively, to be too severe to be appropriate in all the circumstances of the case. The proximity of the three counts in respect of the time and place and the victim call for an approach in which a reduction of the effect of each count is achieved by treating all three counts as one for the purposes of sentence. In the result therefore, the appeal against sentence succeeds. The sentence imposed in the court a quo is set aside and the following is substituted:
 “The accused is sentenced as follows:

Count 1: 7 years imprisonment

Count 2, 3 & 4: Treated as one count for the purpose of sentence:
7 years imprisonment.

Of the total 14 years imprisonment, 4 years imprisonment is suspended for five years on condition the accused is not convicted of an offence sexual of a sexual nature or kidnapping for which he is sentenced to imprisonment without the option of a fine.”

Total effective sentence: 10 years imprisonment.

Matipano & Matimba, appellant’s legal practitioners
Attorney-General’s Office, respondent’s legal practitioners
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