Judgment record
Ephraim Makomeke v State
HH 118-11HH 118-112011
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EPHRAIM MAKOMEKE
versus
STATE
HIGH COURT OF ZIMBABWE
OMERJEE AND MUSAKWA JJ
HARARE, 2 JUNE 2011
Criminal Appeal
T. Mpofu, for the appellant
F. I. Nyahunzvi, for the respondent
MUSAKWA J: The appellant was convicted of contravening s 66 (1) of the Criminal
Law (Codification and Reform) Act [Cap 9:23] for which he was sentenced to ten years
imprisonment of which six years were suspended on condition of good behavior. He noted an
appeal against both conviction and sentence.
The appellant is the headmaster of Highfield High School. In 2009 the complainant was a
form four pupil at the school. On 5 December 2009 the complainant left home for studies at
school. It was a Saturday and she was in school uniform.
Around 5 p.m the complainant was on her way home when the appellant observed her
talking to a man who was holding a beer bottle. The complainant disputed that the person she
talked to was holding a beer bottle. Nonetheless she admitted that she did talk to this person
because she knew him. The complainant initially described this person as a boy but under cross-
examination she seemed to accept that it was a man.
Irrespective of the precise description of this person, it is this brief encounter with the
complainant that drew the appellant’s ire. It was against school rules for the complainant to loiter
or misbehave whilst in school uniform. The appellant caused the complainant to appear at his
parked vehicle. After initial resistance the complainant eventually boarded the appellant’s
vehicle.
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The appellant wanted the complainant to show him her residence as he wanted to report
her purported wayward behavior to her parents. By her own admission the complainant took the
appellant to her home of her friend within the neighborhood. This she did because she felt she
had done nothing wrong. Thus, according to her reasoning when they arrived at her friend’s
home the appellant could verify her home address. The additional explanation given by the
complainant was that as they drove in the appellant’s vehicle, the appellant continued to accuse
her of misdirecting her to her residence.
It is not in dispute that the appellant and the complainant reached the Muchenje house but
then left without them talking to any adults. The complainant said some children approached the
vehicle whereupon the appellant asked if he could be of assistance. The children in turn replied
that this was their home. The appellant then drove off and suggested that they go to the school
from where he could verify the complainant’s address.
After going up to O.K supermarket the appellant is said to have turned back and indicated
to the complainant that she must show him her residence. The complainant again led the
appellant to the Muchenje house. It is whilst they drove back that the complainant stated she was
ordered by the appellant to part her legs. In the process of instructing her thus the appellant is
said to have inserted his finger into her vagina. The complainant did not give much detail about
this act during her evidence in-chief. However, during cross-examination she stated that the
appellant inserted his finger thrice and each time he withdrew his finger he would sniff it.
When they reached the Muchenje house for the second time the appellant parked by the
gate. Mr Muchenje then approached and sought to know if he could be of assistance but the
appellant told him gruffly that he had nothing to do with his presence at the gate. Mr Muchenje
then told the appellant to leave his premises.
After leaving the Muchenje house the appellant did not take the complainant to her
residence. According to the complainant, the appellant dropped her off in the vicinity of
Willowvale Flats after telling her that he had forgiven her. She then made her way home
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Meanwhile, as soon as the appellant drove off Mr Muchenje left for complainant’s
residence. When he arrived there the complainant was already being questioned by her parents
regarding her late return from school. Apparently the evidence from the appellant’s mother was
that she arrived home around 7.15 p.m. She was questioned whether she was still at school up to
that time and she confirmed so.
Mr Muchenje’s motive in seeking the complainant was that he suspected she had been
looking for his daughter on behalf of the appellant. Therefore when he arrived at the
complainant’s residence he demanded to know the old man who was in her company when they
visited his house. This incensed the complainant’s father who struck her with a belt. According
to Mr Muchenje the father demanded to know what the headmaster had done to the complainant.
The complainant initially said the headmaster had offered her a lift. She also stated that she had
been given an undisclosed sum of money by the appellant. Mr Muchenje was not present when
the complainant subsequently reported the indecent assault.
In the grounds of appeal it is contended on behalf of the appellant that the trial court erred
in dismissing the application for discharge at the close of the state case. In this respect it is
contended that the court a quo erred in stating that the approach to sexual offences as enunciated
in S v Mupfudza 1982 (1) ZLR 271 (SC) is no longer applicable without articulating the new
approach. Related to this is the contention that the complainant was clearly unreliable as she
contradicted herself in material respects. There is also the contention that the trial magistrate
conducted the proceedings in an unfair manner that showed that he was biased against the
appellant.
The state concedes that the appeal cannot be sustained. In filing the concession counsel
for the state cited Rule 35 of the High Court Rules. This is erroneous as Rule 35 relates to
matrimonial causes. He must have had in mind s 35 of the High Court Act [ Chapter 7:06] which
relates to the procedure where the Attorney-General does not support a conviction.
The concession by the state is well made. The trial court completely disregarded a
number of material inconsistencies in the complainant’s testimony. A careful consideration of
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the complainant’s evidence in conjunction with that of the other state witnesses leaves
unresolved doubts which should inevitably be decided in the appellant’s favor.
In coming to this conclusion one cannot entirely ignore the suspicious conduct of the
appellant in the entire episode. This is particularly so if one considers his failure to verify the
complainant’s address with Mr Muchenje despite visiting his residence twice. If he was so
determined to establish the complainant’s address why would he eventually drop her off
elsewhere after a reprimand? Then there is Mr Muchenje’s evidence that the complainant told
her parents that the appellant had offered her a lift and that he had given her some money. One
cannot entirely rule out an improper association between the two.
Nonetheless, the testimony of the complainant was manifestly unreliable. Whilst she told
the court that the indecent assault took place whilst the appellant drove to Mr Muchenje’s
residence, she told her own mother that this took place near C.J Hall whilst the vehicle was
stationary. In another vein the complainant told the trial court that the incident took place whilst
she was seated in the front seat as the appellant drove back to Mr Muchenje’s house. Mr
Muchenje stated that the complainant was seated at the back. Mr Muchenje clearly described the
complainant’s posture whilst at the back seat. There is nothing to show that he made a mistake in
his observation or that he had a motive to lie. The complainant only made a report against the
appellant after she had been assaulted by her father. This is despite the fact that she had been
questioned by her parents why she returned home late and had not volunteered the report of
sexual assault. In short, there is no corroboration of the complainant’s story.
Both counsels submitted in their heads of argument that the trial court ought to have
adopted the approach in S v Mupfudza supra in its assessment of the complainant’s evidence. The
court in that case had this to say in respect of a complainant in a sexual offence at 273-275-
“Since this is only one of several recent cases in which the cautionary rule and its proper application seem not to
have been fully understood, it may be helpful to deal with the subject in some detail.
There are several types of witness who, for one reason or another, must be regarded as suspect and whose evidence
must be regarded as suspect and whose evidence must be approached with particular caution; among the more
common are the accomplice, the complainant in a sexual case and the person found in possession of stolen property
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or through whose hands it has passed. In all such cases there is potentially a danger of false incrimination, and
before a trial court can safely convict on the testimony of such a witness it must satisfy itself that that danger has
been excluded. But before I examine the circumstances in which a court can properly be so satisfied I must stress a
point which is all too frequently overlooked.
The court looks for corroboration of the evidence of a suspect witness. But - perhaps precisely because of the search
for corroboration - trial courts frequently forget that the court must first decide whether the suspect witness is
credible; in other words, the court must first decide whether, taking into account all the circumstances of the case,
including demeanour, the probabilities, and all the other considerations which triers of fact properly take into
account in assessing credibility, it believes the witness. If not, the matter is at an end, and the question of
corroboration of, or support for, his testimony does not arise; it is only if the court believes the witness that in cases
where a cautionary G rule applies it then proceeds to consider whether it might still not have been deceived by a
plausible witness. LORD HAILSHAM stressed this point in DPP v Kilbourne [1973] 1 All ER 440 (HL) at page
452:
"Corroboration is only required ... if the Witness requiring corroboration ... is otherwise credible. If his
evidence is not credible, a witness's testimony should be rejected and the accused acquitted, even if there could be
found evidence capable of being corroboration in other testimony. Corroboration can only be afforded to ... a
witness who is otherwise to be believed. If a witness's testimony falls of its own inanition the question of his
needing corroboration does not rise."
This two-stage approach is very clearly expressed by JAMES, LJ, in R v Turner (1975) 61 Cr. app. R 67; it was
argued on behalf of one of the appellants that the trial judge "fell into error in his direction to the jury as to
corroboration in that he failed to make it clear that the jury had to be satisfied that (the accomplice) was a credible
witness before they considered the question whether there was ... (corroboration) ... ". In rejecting this submission
JAMES, LJ, said at page 84:
"The judge did not in simple and precise terms direct the jury to approach B the question of corroboration
in two stages, first, the credibility of (the accomplice), and secondly - and only if (the accomplice) was found to be
credible - the existence of credible evidence, independent of (the accomplice) which supported (his) evidence ... The
whole tenor of the summing - up was that the jury would have to be satisfied of the truth of (the accomplice's)
evidence before they could convict and that, even then, they ought not to C convict unless they found corroborative
evidence." (my emphasis).
A similar approach was adopted in Bekker v Westenraad, 1942 WLD 214 (a paternity case), where
RAMSBOTTOM, J (as he then was), said at page 22:
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"[The woman] may be believed, but she will not succeed in her action unless there is in addition evidence
aliunde to corroborate her. If she is not believed, that is the end of her case. If she shows herself to be a truthful and
credible witness there is no reason why she should not be believed, though she will not be entitled to judgment
unless there is corroboration. But if in addition to her testimony which has been believed, there is evidence aliunde
which corroborates her, she is entitled to judgment. There are therefore two elements in the enquiry; is the plaintiff
to be believed, and is there corroboration? In many cases no doubt these two elements will be intermingled; the
corroborating evidence may induce the court to accept the plaintiff's words; but there are other cases in which,
without corroboration the court is in no doubt as between the parties, that it is the plaintiff who is speaking the truth,
and in such a case the plaintiff is entitled to succeed, provided there is such corroboration of her evidence as the law
requires. The method of considering first the credibility of the plaintiff and then whether her evidence is
corroborated has been adopted in a number of cases of which Scholte-meyer v Potgieter (1916 TPD 188), Smit v
Swart (1916 TPD 197), Mackay v Ballot (1921 TPD 430), are examples. This method appears to me to be logical
and satisfactory and I propose to adopt it."
The importance of this two-stage approach is illustrated in the present case. The magistrate convicted the appellant
because he found him to be an unsatisfactory witness and he believed the complainant; he does not appear to have
appreciated that believing the complainant was only H the first stage in the enquiry, and that, believing her, he
must still satisfy himself that he had not been deceived. His acceptance of and reliance on the complainant's
evidence seems to me to have been based on precisely the same considerations as are taken into account in assessing
the evidence and credibility of a witness in any ordinary case. Such an approach is clearly incorrect in a case where,
for one reason or another, a cautionary rule must be applied; in all such situations the court must not only believe the
suspect witness but must in addition be satisfied that the danger of false incrimination has been excluded. If this
were not the position then the cautionary rule would have little meaning all cases would be reduced to a
straightforward assessment of the credibility of the witnesses.”
The two rung approach was discarded by the Supreme Court in the case of S v Banana
2000 (1) ZLR 607 (SC) in which GUBBAY CJ had this to say regarding the cautionary rule in
respect of complainants in sexual offences at 613-614-
“There is a well-established rule in Roman-Dutch jurisdictions that judicial officers are required to warn themselves
of the danger of convicting on the uncorroborated evidence of certain categories of witnesses who are potentially
suspect. One such category concerns complainants in sexual cases.
In a long line of cases in this country, of which S v Mupfudza 1982 (1) ZLR 271 (S) is the landmark, the so-called
two-stage test has been applied. The first question to be asked by the court is: "Is the complainant credible?" If the
answer is in the affirmative, the next question is: "Is there corroboration of or support for the evidence of the
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complainant?" In other words, the court must not only believe the complainant, it must in addition be satisfied, by an
application of the cautionary rule, whether it might still not have been deceived by a plausible witness. It therefore
must seek corroboration or evidence tending to exclude the danger of false incrimination. See also S v Chitiyo 1989
(2) ZLR 144 (S) at 145E-F; S v Chigova 1992 (2) ZLR 206 (S) at 219D-F and 220C-E; S v Makanyanga 1996 (2)
ZLR 231 (H) at 241A-C; S v Zaranyika 1997 (1) ZLR 539 (H) at 555B-C.
However, in S v D & Anor 1992 (1) SA 513 (Nm) FRANK J (with whom STRYDOM JP agreed), in the Namibia
High Court, took the opportunity to re-examine the need for the rule in sexual cases. He came to the conclusion
that the cautionary rule in such cases has no rational basis for its existence. He held that while a trial court must
consider the nature and circumstances of the particular offence, "in the end only one test applies, namely, was the
accused's guilt proved beyond reasonable doubt, and the test must be the same whether the crime is theft or rape"
(see at 517A-B).
This decision received the imprimatur of the South African Supreme Court of Appeal in S v Jackson 1998 (1)
SACR 470 (SCA). In the course of a well reasoned judgment, OLIVIER JA, with the concurrence of Mahomed CJ
and three other Judges of Appeal) said at 476e-f:
"In my view, the cautionary rule in sexual assault cases is based on an irrational and out-dated perception. It unjustly
stereotypes complainants in sexual assault cases (overwhelmingly women) as particularly unreliable. In our system
of law, the burden is on G the State to prove the guilt of an accused beyond reasonable doubt - no more and no less.
The evidence in a particular case may call for a cautionary approach, but that is a far cry from the application of a
general cautionary rule."
He commended as particularly important the eighth guideline formulated by LORD TAYLOR CJ in R v
Makanjuola; R v Easton [1995] 3 All ER 730 (A) at 733c-d, which reads:
"In some cases, it may be appropriate for the judge to warn the jury to exercise caution before acting upon the
unsupported A evidence of a witness. This will not be so simply because the witness is a complainant of a sexual
offence nor will it necessarily be so because a witness is alleged to be an accomplice. There will need to be an
evidential basis for suggesting that the evidence of the witness may be unreliable. An evidential basis does not
include mere suggestions by cross-examining counsel."
Prior to the decision in the Jackson case supra, it had long been accepted that criminal cases of a sexual nature fell
into a special category. It was said that there was an "inherent danger" in relying on the unconfirmed testimony of a
complainant in such a case. This belief resulted in the courts adopting a fixed cautionary rule of practice.
In S v M 1999 (2) SACR 548 (SCA), the Supreme Court of Appeal reiterated that the application of the cautionary
rule to sexual cases was based on irrational and outdated perceptions. It again pointed out that although the evidence
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in such cases might call for a cautionary approach, this was not a general rule. The State was simply obliged to
prove the accused's guilt beyond a reasonable doubt. And this approach applied to all cases in which an act of a
sexual nature was an element (see at 555a-b).
Recently, in S v K 2000 (4) BCLR 405 (NmS), the Supreme Court of Namibia followed the decision in S v Jackson
supra. It held that the cautionary rule had outlived its usefulness. There were no convincing reasons for its continued
application. It exemplified a rule of practice that placed an additional burden on victims in sexual cases which could
lead to grave injustice to the victims involved (see at 418H-419D).
It is my opinion that the time has now come for our courts to move away from the application of the two-pronged
test in sexual cases and proceed in conformity with the approach advocated in South Africa. In so holding, I have
not overlooked the well-researched judgment of GILLESPIE J in S v Magaya 1997 (2) ZLR 138 (H). But having
regard to the abrogation of the obligatory nature of the rule in such countries as Canada, the United Kingdom,
New Zealand and Australia, as well as by the State of California (see Chaskalson, et al, Constitutional Law of South
Africa at 14-62; Hatchard, 1993 Journal of African Law 97 at 98; (1983) 4 Canadian Journal of Family Law 173), I
respectfully endorse the view that in sexual cases the cautionary rule of practice is not warranted. Yet I would
emphasise that this does not mean that the nature and circumstances of the alleged sexual offence need not be
considered carefully.”
In respect of the single witness the learned Chief Justice had this to say at 614-616-
“It is, of course, permissible in terms of s 269 of the Criminal Procedure and Evidence Act [Chapter 9:07] for a court
to convict a person on the single evidence of a competent and credible witness. The test formulated by DE
VILLIERS JP in R v Mokoena 1932 OPD 79 at 80 was that the evidence of such a single witness must be found to
be "clear and satisfactory in every material respect".
In The South African Law of Evidence 4 ed at 573 the celebrated authors, Hoffmann and Zeffertt, rightly point out
that Mokoena's case concerned the situation of a single witness claiming to have identified the accused by the B
light of a pocket torch as he ran past in the dark. Accordingly, they contend that the remarks of DE VILLIERS JP
should be related to the context in which they were made.
Certainly, in purporting to lay down a general rule the dictum of the learned Judge President has been criticised as
unhelpful and tending to obscure the ultimate purpose of the court's inquiry, which is whether the guilt of the
accused has been proved beyond a reasonable doubt. See R v Abdoorham 1954 (3) SA 163 (N) at 165; R v Mokoena
1956 (3) SA 81 (A) at 85. In S v Sauls & Ors 1981 (3) SA 172 (A) at 180E-G, DIEMONT JA said:
"There is no rule of thumb or formula to apply when it comes to a consideration of the credibility of the single
witness.
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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 ... It has been said more than once that the exercise of caution
must not be allowed to displace the exercise of common sense."
In Zimbabwe, much the same approach has been adopted. In S v Nyati 1977 (2) RLR 315 (A) at 318E-G, Lewis JP
warned that the test in R v Mokoena supra is not to be regarded as an inflexible rule of thumb. There is no magic
formula which determines when a conviction is warranted upon the testimony of a single witness. His evidence must
be approached with caution and the merits thereof weighed against any factors which militate F against its
credibility. In essence, a commonsense approach must be applied. If the court is convinced beyond a reasonable
doubt that the sole witness has spoken the truth, it must convict, notwithstanding that he was in some respects
unsatisfactory. See also S v Nathoo Supermarket (Pvt) Ltd 1987 (2) ZLR 136 (S) at 138D-F.
Where the evidence of the single witness is corroborated in any way which tends to indicate that the whole story was
not concocted, the caution enjoined may be overcome and acceptance facilitated. But corroboration is not essential.
Any other feature which increases the confidence of the court in the reliability of the single witness may also
overcome the caution.
And finally, in respect of reports by a complainant in a sexual offence, he went on to say
at 616-
“Evidence that a complainant in an alleged sexual offence made a complaint soon after its
occurrence, and the terms of that complaint, are admissible to show the consistency of the
complainant's evidence and the absence of consent. The complaint serves to rebut any
suspicion that the complainant has fabricated the allegation.
The requirements for admissibility of a complaint are:
1. It must have been made voluntarily and not as a result of questions of a leading
and inducing or intimidating nature. See R v Petros 1967 RLR 35 (G) at 39G-H.
2. It must have been made without undue delay and at the earliest opportunity, in all
the circumstances, to C the first person to whom the complainant could reasonably be
expected to make it. See R v C 1955 (4) SA 40 (N) at 40G-H; S v Makanyanga supra at
242G-243C.”
It would appear this is the approach the trial magistrate had in mind when he discarded
the approach in Mupfudza’s case in dismissing the application for discharge at the close of the
state case. The only criticism one can direct at the judgment is that he did not properly articulate
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the dicta in S v Banana supra. That notwithstanding, if the trial court had properly applied the
principles of law enunciated in S v Banana supra it would have acquitted the appellant.
One other aspect deserves mention. After the prosecutor finished cross-examining the
appellant the trial magistrate questioned the appellant at considerable length. At some stage he
made unnecessary personal references to his history in school administration or his association
with a school situated in Highfield. The nature of the questions that were put to the appellant
went beyond seeking clarification. It was tantamount to descending into the arena. This should
always be avoided as it may result in an unfair trial.
In the result the conviction and sentence are hereby set aside.
OMERJEE J agrees.
Mushonga & Associates, appellant’s legal practitioners
Attorney-General’s Office, respondent’s legal practitioners