Enock Machingura v The State

### Preamble
HH 236/12
CA 1088/10
ENOCK MACHINGURA
versus
THE STATE
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ENOCK MACHINGURA
versus
THE STATE

HIGH COURT OF ZIMBABWE
OMERJEE, CHATUKUTA JJ
HARARE, 12 May 2011 & 6 June 2012

Criminal Appeal

Ms Maramba, for the applicant
Mr. J Mandevere, for the 1st respondent

CHATUKUTA J: The appellant was convicted on 20 September 2010 of contravening section 65 of the Criminal Law Codification and Reform Act [Chapter 9:23]. He was sentenced to 10 years imprisonment of which three years were suspended on condition of good behaviour.

The following are the facts upon which the appellant was convicted. The appellant and the complainant are related in that the appellant is a step-brother to the complainant’s husband. The complainant’s husband had another wife, the complainant being the junior wife. The complainant’s husband heard rumours that his wives were having extra-marital affairs with a neighbour. He approached the appellant for assistance in interrogating the wives on the veracity of the rumours.

On 27 February 2010, the appellant went to the complainant’s home in Epworth and collected the complainant so that she would accompany him to his house in Chitungwiza to interview her. He was to bring her back to Epworth after the interview and collect the other wife. On the way to Chitungwiza, the appellant took a dirt road. He stopped on the road side and came to the back seat of the vehicle where the complainant was seated pretending to be looking for something on the floor of the car. He pulled out a knife and threatened to kill the complainant with the knife. He proceeded to rape her once on the back seat of the car. After the rape he threatened her with death and the death of her husband if she disclosed the rape. They proceeded to Chitungwiza where the complainant spent the night. On the following morning, the appellant gave the complainant bus fare and dispatched her back to her husband in Epworth. The complainant did not disclose the rape to anyone until April 2010 after she had discovered that she was HIV positive.

The appellant appealed to this court against both the conviction and sentence. It appears to me that the main ground of appeal against conviction is that the court a quo misdirected itself in that it adopted a cursory approach in analysing the evidence of the witnesses and erroneously arrived at a decision based on the evidence of a single witness, the complainant, which was not satisfactory. Regarding sentence, the ground of appeal relied on by the appellant was that the court a quo did not properly weigh the mitigatory factors against the aggravating factors. As a result, it arrived at a sentence so harsh and excessive that it induces a sense of shock.

The decision of the court a quo to convict the appellant was based on its findings of credibility of the state witnesses. Appeal courts have generally been reluctant to interfere with the findings of credibility made by a lower court. The reluctance is primarily based on the fact that an appeal is decided on the papers filed of record. The appeal court does not have the benefit of assessing the demeanour of the witnesses and particularly their truthfulness which would have assisted the court a quo in reaching its conclusion. The appeal court can therefore only and sparingly so, interfere with a finding of a lower court on the credibility of a witness in very exceptional circumstances, more particularly where the facts in the record do not justify or support the findings of fact made by that court. (See S v Isolano 1985 (1) ZLR 62 (SC); S v Ngara 1987 (1) ZLR 91 (SC); Barros & Anor v Chimphonda 1999 (1) ZLR 58 (S) at 62G to 63 D, S v, S v Mugwanda 2002 (1) ZLR 574 (S); Chimbwanda vs Chimbwanda SC 28/02; Edmore Musasa v The State SC 45/02; S v Hollington & Anoerv The State 2002 (2) ZLR 163 (H) at 166B-167G and; Godfrey Nzira v The State SC 23/06.)

In persuading the court that the facts in the record do not justify or support the findings of fact made by that court, the appellant submitted that the report was not made at the first opportunity that availed itself to the complainant. It was submitted that the court a quo should not have found the complainant to be a credible witness because she did not report the rape soon after the offence was committed and only did so after she had found that she was HIV positive. The delay in reporting the rape was inordinate. It was not spontaneous and to the first available sympathetic witness. The complainant had the opportunity of reporting to the appellant’s wife when she arrived in Chitungwiza soon after the rape or to the senior wife or her husband upon her arrival from complainant’s home. She waited for a good three months to make the report.

It is trite that in determining the admissibility of a complainant’s evidence, the court must consider when the report was made. In *Criminal Procedure in Zimbabwe* John Reid-Rowland observed at paragraphs 21-8 as follows:

“To be admissible, the complaint must have been made at the first opportunity after the offence which reasonably offers itself. What is reasonable will depend on the circumstances. A great deal will depend on such factors as the complainant’s age and the opportunity he or she had to complain to a person to whom he or she could reasonably be expected to complain.”

The complaint must not have been induced by threats or by leading questions, though it need not necessarily have been spontaneous.” (see *S v Banana* 2000 (1) ZLR 607 (SC)) (**own emphasis**)

It is not in issue that following the rape, the complainant went to the appellant’s house in Chitungwiza where she saw the appellant’s wife. She did not report the rape to her. It is also common cause that when she returned to her house in Epworth, she had the opportunity to report to the elder wife and to her husband.

The complainant explained that she could not report to the appellant’s wife because the latter had confided in her that she feared that the appellant would rape his own daughter. As a result of the fear, she had made arrangements for her to stay elsewhere. The complainant therefore formed the view that the appellant’s wife could not help her even if she confided in her that the appellant had raped her. She further explained that she could not report because of the threats to her and her husband’s life made by the appellant on several occasions.

The complainant’s explanation as to why she did not report to her husband was that her husband reacted harshly to the fact that the appellant had not returned her to Epworth as previously agreed. Her husband’s anger was targeted at her.

The issue for consideration is therefore whether or not the explanations given by the complainant were not reasonable under the circumstances. The complainant was not challenged by the appellant regarding the fact that the appellant’s daughter was not living in Chitungwiza and the reason given by his wife as to why she was not living at home. It appears to us that the complainant’s fear that her sister-in-law would not be of assistance was therefore well founded. It should also be noted that the threat on her life and that of her husband was still very fresh.

The complainant could not report to her husband what had transpired because of his reaction when she returned alone. The complainant explained that her husband was hostile to her and demanded an explanation why the appellant had not accompanied her back. Her husband quizzed her in a harsh tone as to why the appellant had not come back with her. The only thing that she could do was to cry. The complainant’s evidence that she cried after her husband had used the harsh tone was corroborated by her husband. Her husband testified that she had to be pacified by the elder wife. Her distress is understandable. The anger exhibited against the complainant was supposed to have been targeted at the appellant who had reneged on his undertaking to bring the complainant back and collect the elder wife. Had the complainant intended to falsely incriminate the appellant, this was the right opportunity to do so when she now had the attention and sympathy of her husband. She however did not do so.

The complainant’s distress is better understood from what appears to have been the nature of the relationship between the complainant and her husband. It appears the relationship was one of submissiveness on the part of the complainant. It is not in issue that the complainant was not consulted at all when the decision for her to go with the appellant to his home was taken. This was a decision taken by the appellant and his brother to be communicated to the complainant without any contradiction as to whether or not she was agreeable to the proposed course of action. The complainant testified that when her husband told her that she was going with the appellant, she was in the middle of preparing food. She testified he told her to “take a bath and leave with the accused.” According to her evidence:

“This was after her husband had had a private conversation with accused.

I took a bath and made the necessary preparations. I was suckling a baby at the time. I left with the accused.”

The complainant’s husband confirmed that he told the appellant to take-

“the first wife but one of the children was not well and therefore he should take the other (sic). I told my second wife to be prepared. Accused left with her.”

It appears that the complainant did not have a choice. None of the wives in fact had a choice. The decision had been made that the first wife should go to Chitungwiza with the appellant first. She was spared by the illness of one her children. The next person to be directed to go with the appellant was the complainant. It appears the relationship between the complainant and her husband did not permit the freedom generally expected of a husband and wife relationship wherein the wife is free to express her views freely. Had the relationship been the ideal and generally accepted one, the complaint would have been consulted. It is my view that to overlook the nature of the relationship between the complainant and her husband, more particularly in view of the allegations of promiscuity, would amount to taking an armchair approach.

The relationship between the appellant and the complainant’s husband appears also to have inhibited open communication between the complainant and her husband. The complainant’s husband testified of the special relationship between him and the appellant because he was the eldest brother in Zimbabwe, the others being in Mozambique. He trusted his younger brother and relied on him to investigate the allegation of infidelity against his wives. The appellant confirmed the existence of the special relationship under cross examination. The appellant explained that the complainant falsely incriminated him because of the power that he wielded over her husband. He said that the allegations of rape were intended to neutralize the threat to the complainant’s marital security. Given that relationship, it would not have been easy for the complainant to confide in her husband.

The appellant further contended that the complainant only cried rape when she discovered her HIV status in order to shift attention from the fact that she was HIV positive. It is my further view that the complainant’s discovery in April of her HIV status triggered the disclosure of the rape. What is apparent from the record is that the complainant appeared traumatised from the day that she returned to her house from the appellant’s. The complainant’s husband confirmed that when he asked the complainant why the appellant had not accompanied her, she started crying uncontrollably and had to be comforted by the elder wife. Although she had calmed down, she still showed signs of distress until they retired to bed. He had to leave her and go to the first wife so as to give complainant time to herself. She started crying again when he greeted her the following day. When he visited her bedroom at night, she rebuffed his advances. Despite the rebuff, he forced himself on her. His explanation was “but as a husband I went ahead and had sexual intercourse with her”. The complainant did not only rebuff him once. She did so on a number of occasions and he testified that her attitude towards him had changed.

The complainant’s husband also testified that when he visited the appellant’s house, he was advised by the latter’s wife that the complainant did not appear happy the following morning after the rape. The trauma that the complainant was suffering further appears from the record of proceedings. It is on record that the complainant cried when she testified in court and the court had to invite her to sit down so that she would calm down. It is therefore our view that the complainant had already exhibited that all was not well before she discovered her HIV status. It cannot therefore be said that the discovery caused her to falsely implicate the appellant. The appellant had difficulties in explaining what had compelled the complainant to falsely implicate him. In one instance he stated that it was because of the special relationship existing between him and his brother. In the next instance his explanation was that the complainant had discovered her HIV status. However, he still could not explain why the complainant, upon discovery of the HIV status, implicated the appellant and no one else.

In further challenging the credibility of the complainant, the appellant argued that there were other inconsistencies in the complainant’s evidence giving rise to a conclusion that she was not a candid witness. The appellant contended that the complainant and her husband lied when they stated that he collected her on 28 February 2010 when in fact he did so on 3 January 2010. Much ado was made by the appellant about the disparity in the days when the rape took place. I am of the view that the contradiction is immaterial. The complainant and her husband conceded that they may have been confused as to the exact date. They however agreed with the appellant that it was on the date that they returned from Mhondoro where they had gone to attend a memorial service of a relative. The only relevance of the date is that the complainant only reported the rape in April 2010, a delay of three months if we are to go by the appellant’s date and two months according to the complainant’s date.

The appellant also submitted that the complainant testified that she was raped only once contrary to the evidence of her husband that she told him that she had been raped twice. The appellant also highlighted the same inconsistency between the complainant’s evidence and the state outline. It is my view that the record is not clear as to whether the husband’s evidence is to the effect that he was told by the complainant that she had been raped twice. The record reads as follows:

“They struggled the child began to cry and when she tries to push him accused put the knife there on the side. She cools all and the accused managed to access and have intercourse with her. She did not whether her panties were taken. She said next to the door accused asked why she had struggled. Accused did it again.”


This highlights the sorry state of the record and underscores the need for records of proceedings to be brought to the attention of the presiding officers so that such lack of clarity which may very well be attributed to typographical errors is attended to.

However, assuming that the husband’s evidence is as alleged by the appellant, the complainant consistently maintained that she was raped only once. It appears to me that this gives credence to her evidence and her truthfulness. Had she intended to falsely incriminate the appellant, she would have easily testified that the appellant raped her twice. The complainant’s evidence would have been viewed differently had she testified that she was raped more than once and the husband had testified on the other hand that she had reported to him that she had been raped only once. The impression that would have been created by such evidence would have been that the complainant wanted to bolster her complaint.

Regarding the inconsistency between the state outline and a complainant’s evidence KORSAH J remarked as follows in S v Chigova 1992 (2) ZLR 206 (HC) at 213C-F-

“While I agree that the State is bound to prove the ingredients of the offence it alleges, a précis of a case by the State is not to be given equal weight with the outline of defence on behalf of the accused. The reason for this is simple. The complainant has no control over what a policeman may find relevant enough to include in a précis. The précis is not her word and deed. She is not to be taken as having made categorical statements on matters which, though relevant, are not essential to establish the offence alleged. The complainant's credibility is not to be assessed on apparent conflicts between her viva voce testimony and a summary of the case prepared by someone else.

The "defence outline", however, is prepared at the behest of the accused and usually read over by, or to, him and then signed by him or on his behalf. A complainant cannot be discredited because of discrepancies between a summary of the State case and her testimony, in the same way as an accused who, having made categorical statements in his "defence outline", testifies to something other than that which he has put his hand to or stated in his outline of defence, which may tend to underscore the veracity or otherwise of the accused. To discredit a complainant because of discrepancies between the State outline and her testimony, the divergence between the two must be so gross as to be utterly irreconcilable, or her testimony patently false.”

Whilst it would have been desirable for the state to have explained the discrepancy, it is my view that this discrepancy between the State outline and the evidence of the State witnesses does not go to the root of the matter. Discrepancies are not necessarily an indication of falsehood on the part of the witness. The fact remains that the complainant was raped the one occasion that she maintained in her evidence.

The other ground upon which the appellant challenges the complainant’s credibility is that it was not conceivable that the appellant could have raped the complainant in a small Mazda 323 given that he was very heavily built. According to the measurements provided in the appellant’s heads of argument, the appellant measured 150cm wide around his waist and he was 1.78cm tall. It appears that this evidence was not adduced during the trial because the record is silent on the appellant’s measurements. The only reference made in the appellant’s defence outline, under cross examination by the prosecutor and during the cross examination of the complainant is that he was a big man. It is trite that new facts not adduced during trial cannot be introduced on appeal except upon application.

In any event, the size of the appellant could not have been an inhibiting factor in achieving his goal. In *Nyazika v S SC150/94*, the Supreme Court was seized with a similar case where an appellant of large proportions sought to rely on his size as a defence to a charge of rape. The rape in that case was committed, as in the present case, in a small Mazda 323. Nyazika was found to have forced himself and the complainant through the space between the front seats to reach the backseat where he raped the complainant). McNALLY JA observed that size could not inhibit an accused determined to rape to do so in the smallest of space. He remarked as follows at p2-


“In broad terms there is much to be said for this defence submission. But two points must be made: First, improbable things do happen. Secondly, people have different personalities.

I do not think it has been demonstrated that a strong man could not force a relatively slight woman through the gap between the front seats into the back, follow her through, place her on his lap, and achieve intercourse….”

As to personalities, a man who is arrogant, self-confident, strong, and driven by the immediacy of his sex drive, may do things which another man might consider risky or impossible. A woman who is quiet, shy and slightly-built may react differently from a powerful, boisterous, extrovert woman. I make no judgment on these particular two. I have not seen them. I have seen a photograph of her. I have read the magistrate’s assessment that she is “thin, small size, very slim and very light”. Of the appellant, the magistrate says: “he is big, strong and athletic”.

The magistrate, after inspection of the vehicle and the scene, came to the conclusion that the incident could have happened the way the complainant described it. I see no reason to dispute that. The events may have perhaps been described as somewhat improbable but by no means impossible.”

It appears the court *a quo* shared the same sentiments that rape was feasible by a big man in a confined place. That conclusion cannot therefore be faulted.

Turning to the appellant’s defence, the decision of the court a quo not to believe the appellant’s defence, is my view reasonable. Whilst the onus to prove a case beyond reasonable doubt still lies on the state and not on an accused, the accused must put forward a case which is reasonably true – S v Mapfumo & Ors 1983 (1) ZLR 250 (S) at 254; S v Nziradzepatsva 1999(1) ZLR 568(H) Kapende v S HH-157-02;); Manyika v S HH-215-02.)

The appellant’s defence was a bare denial. When he collected the complainant from her home in Epworth, the agreement between the brothers was that he would bring her back and collect the first wife for “interrogation”. The appellant could not explain why despite this agreement he did not take the complainant back to Epworth and collect the first wife. He did not and could not explain satisfactorily why even if he did not take the complainant back, he did not report to his elder brother the results of his investigations. He did not dispute that his brother had invited him to come and undertake the investigations. His explanation for not reporting back is that he wanted to spare his brother the agony of the confession made by the complainant. However, it would have been obvious to him from the allegations against the complainant, that upon inquiry, there would only be two possible responses. The complainant could either persistently deny the allegations or confess her infidelity. He assumed the tasks assigned to him well aware of the possibility of a confession and he still accepted the task. Had he wanted to protect his brother he would have declined to take up the challenge of establishing the truth about the complainant’s alleged infidelity.

After an analysis of the totality of the evidence, the appellant could not advance any reason why the complainant and his own brother would falsely incriminate him. In one instance he testified that it was because the complainant wanted to cover up for her confession. In the other instant, he testified that it was because there was bad blood between him and his brother because they came from different mothers and only shared a father. However, under cross examination, the appellant testified that the relationship between him and his brother was cordial. The appellant also said that the complainant intended to bring disharmony between the two. His brother was clouded by his love for the complainant hence the report. It was no surprise that the court a quo found the appellant to be an incredible witness in view of these conflicting explanations.

Turning to the grounds of appeal against sentence, the basis upon which the appeal court can interfere with the sentence is set out in S v De Jager & Anor 1965 (2) SA 616 (A). At 628 H to 629 A-B HOLMES JA said:

"It would not appear to be sufficiently recognised that a Court of appeal does not have a general discretion to ameliorate the sentences of a trial court. The matter is governed by principle. It is the trial Court that has the discretion, and a Court of appeal cannot interfere unless the discretion was not judicially exercised, that is to say unless the sentence is vitiated by irregularity or misdirection or is so severe that no reasonable court could have imposed it. In this latter regard an accepted test is whether the sentence induces a sense of shock, that is to say if there is a striking disparity between a sentence passed and that which the Court of appeal would have imposed. It should therefore be recognised that appellate jurisdiction to interfere with punishment is not discretionary but on the contrary, is very limited.” (See also S v Mundowa 1998 (2) ZLR 392 (H), S v Dullabh 1994 (2) ZLR (H) 130 and Godfrey Kadamuto v S HH 184-2001, Ramushu & Ors v The State SC 25/93 at p5 and S v Nhumwa SC 40/88)

Ms Maramba conceded, and in our view rightly so, that a sentence of imprisonment of ten years was not harsh and did not induce a sense of shock. We accept the concession on the basis that this was a rape perpetrated by a brother-in-law on a sister-in-law (the complainant), in circumstances where both the sister-in-law and her husband had placed trust in the appellant to resolve their marital differences. Instead of rendering the assistance sought, the appellant breached that trust and violated his own brother’s wife. The appellant’s moral blameworthiness was very high. The sentence imposed cannot therefore be said to be harsh under the circumstances.

In the result, the appeal against both conviction and sentence is dismissed.

OMERJEE AJA, agrees……………….

Thondhlanga & Associates, the appellant’s legal practitioners
Attorney General’s Office, the respondent’s legal practitioners
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