Farai JOHN Ndlovu V THE State

### Preamble
1
HH 245-2013
CA 828/2012
FARAI JOHN NDLOVU
versus
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FARAI JOHN NDLOVU
versus
THE STATE

HIGH COURT OF ZIMBABWE
MAVANGIRA J
HARARE, 18 and 7 August 2013

Criminal Appeal

T. Tandi, for the appellant
F. Kachidza, for the respondent

MAVANGIRA J: The appellant was arraigned before the Regional Magistrate at Harare on a charge of rape as defined in section 65(1) of the Criminal Law (Codification and Reform) Act, [Cap 9:23]. He pleaded not guilty but was convicted after a trial. He was thereupon sentenced to 10 years imprisonment of which 5 years imprisonment was suspended for 5 years on condition of future good conduct.

The appellant now appeals against both conviction and sentence. The following are the grounds of appeal raised against conviction. The first is that the court a quo erred in convicting the appellant when the state had failed to prove its case beyond a reasonable doubt and when the appellant’s evidence was not challenged in all material respects. The second ground of appeal is that the court a quo erred in both fact and law in finding, as it did, that the appellant knew that the complainant was mentally incompetent and his actions were by “design” when this was not corroborated by the evidence before it. The third is that the court a quo grossly erred in solely relying on the evidence of “expert witnesses” when the unchallenged statement by the complainant (tendered as exhibit 4) materially contradict their evidence. Fourthly, that the court a quo misdirected itself in finding that the defence was qualified by a response which was predicated upon the clear provisions of the law. As a consequence of this misdirection the court a quo proceeded to err and misdirect itself by not calling the complainant as a witness thus depriving itself of the opportunity of observing her demeanour and testing her evidence. The fifth ground of appeal, raised by way of an amendment to the notice and grounds of appeal is that the court a quo erred and misdirected itself in relying on section 65(1) of the Criminal Law (Codification and Reform) Act, [Cap 9:23] when the offence is created by section 64(3) of the Criminal Law (Codification and Reform) Act, [Cap 9:23], as a consequence the court a quo applied the wrong considerations in determining the matter.

The allegation against the appellant was that the knowingly had sexual intercourse with the complainant, a mentally incompetent female person, or realising that there was a real risk or possibility that the complainant might be mentally incompetent.

In his defence outline and in his evidence the appellant states that he had consensual sexual intercourse with the complainant. He stated in his evidence that from his interaction with the complainant as he communicated with her and visited her, the complainant, whom he fell in love with, was a normal person. He did not observe anything about her that was different from other normal girls. In his oral submissions to the court Mr Tandi for the appellant submitted that one issue emerges from the grounds of appeal against conviction raised on behalf of the appellant. He submitted that the issue can be stated as being whether or not the evidence led established that the complainant was mentally incompetent to the extent of vitiating consent. He submitted that on a consideration of the provisions of section 64 (3) as read with section 65, the state had to prove that the complainant was incapable of giving consent and that she did not give her consent. He further submitted that he conceded that the complainant may have been mentally incompetent but it is the degree of such incompetence that he took issue or disagreed with. He referred the court to the matter of S v Mbizi 1989(3) ZLR 317 (SC) at 320G to 321A where GUBBAY CJ stated:-

“It is inadvisable to pronounce on what depth of mental retardation is necessary before a person can be described as being an idiot or imbecile. Whether the requisite state of mental defectiveness has been reached in a particular case in a question of fact, to be determined after the reception of expert medical testimony. But it may be of some assistance to point out that in R v Dimane 1940 TPD 372 at 373 GREENBERG JP (as he then was) held that evidence that the complainant was mentally sub-normal and feeble – minded did not prove her to be an idiot or imbecile. See also *R v Reid* NPD 410 at 411. To revert to the present case, all that can be said of the complainant is that she is, to some degree, mentally retarded. The fact that she has the intelligence of a child of eight years did not *per se* prove her to be an idiot or imbecile. Compare *R v S* 1951(3) SA 209 (C) at 210H. She was capable of testifying fairly sensibly, and the psychiatrist who examined her did not venture the opinion that she was an idiot or an imbecile. In the circumstances, I have no hesitation in agreeing with the view of the Attorney-General that insufficient evidence was led before the trial court to establish that the complainant was an idiot or imbecile. If anything, the evidence suggests the contrary. The conviction, therefore, must be set aside.” (emphasis added).

In *casu*, the state led evidence from Doctor Muchirahondo, a psychiatrist with 4 years experience. She holds a Bachelor of Medicine, Bachelor of Surgery and diploma in mental health and Masters in Medicine and Psychiatry. Her work entails treating and assessing people with mental disorder who are referred to the Psychiatric Unit at Parirenyatwa Hospital. She also teaches at the Medical school. She said that she examined the complainant who was brought to the Unit after a report was made that she had been sexually abused. She said that the police referred the complainant to the Psychiatric Unit and that she was accompanied by a relative who did not know much of the complainant’s history. She said that it was difficult to converse with the complainant and she had to simplify her language as the complainant’s language was very simple. As she assessed the complainant’s intelligence, she, amongst other things, asked her to do simple addition and subtraction at Grade One Level and the complainant was unable to give her correct answers. She learnt that the complainant played with children of the ages of around 7 and 8. Her assessment at the end was that the complainant could not understand or follow court procedure. She also concluded that the complainant could not give informed consent to sexual intercourse and could not appreciate its effect. She also stated that even before she talked to the complainant, her initial assessment was that she was mentally sub-normal. This was because of the way she was dressed as well as her appearance. She stated that if a person met the complainant and held a conversation with her, the person would conclude that the complainant is mentally retarded. She described the complainant as having permanent moderate mental retardation. She further stated that based on how the complainant answered her questions, she concluded that the complainant could not appreciate the consequences of sexual intercourse.

The observations that the appellant claims that he made regarding the complainant’s mental capacity are contrary to those of the psychiatrist. They also contradict the evidence of the complainant’s father regarding her mental capacity. The father’s evidence was to the effect that the complainant is 30 years old and is mentally retarded. The complaint only went as far as Grade 7 because of her mental state. She is not capable of doing basic things like her laundry, preparing meals or any other chores. She is forgetful and has speech problems. She associates with young people, is not aware of her condition and at times pesters him to go to school.

The observations that the appellant claims to have made also contradict those made by the nurse who examined the complainant at the adult rape clinic. She said that she observed that the complainant was mentally retarded from her interaction with her. She said that she put simple details to the complainant but the complainant was slow to respond. The complainant was with her aunt who gave the witness most of the complainant’s background.

On a view of the evidence on record, it is in my view, highly improbable that the appellant who would see the complainant about twice a week, as he stated, would during the period of a month or two that they related with each other, fail to notice that the complainant was mentally retarded, an observation made by the doctor and the nurse who, separately, related to her for only a portion of a day. The observations of the doctor and the nurse also confirm the father’s evidence regarding the complainant’s mental state. The appellant could not possibly be telling the truth in this regard. The trial court cannot in the circumstances be faulted for disbelieving him and finding that he very well knew the complainant’s mental problem but decided to take advantage of her condition.


As stated in S v Mbizi (supra), whether the requisite state of mental defectiveness has been reached in a particular case is a question of fact, to be determined after the reception of expert medical testimony. In casu, the lower court led the evidence of a qualified psychiatrist, the appropriate expert for the matter at hand. She was clear in her evidence that her assessment was that the complainant could not appreciate the effect or consequences of sexual intercourse and could neither give informed consent to it. She was also clear in her evidence that in her assessment, the complainant could not understand or follow court procedure.

In view of the above, it is my view that the trial court cannot be criticised as having failed to ensure that the provisions of s. 64(3) of the Criminal Law (Codification and Reform) Act were satisfied. The section provides;

“(3) A person who engages in sexual intercourse, anal sexual intercourse or other sexual conduct with a mentally incompetent adult person shall be charged with rape, aggravated indecent assault or indecent assault, as the case may be, unless there is evidence that the mentally incompetent person:-

(a) was capable of giving consent to the sexual intercourse, oral intercourse or other sexual conduct; and

(b) gave his or her consent thereto.”

In casu the psychiatrist’s evidence is to the effect that the complainant was not capable of giving such consent. There is no reason why the psychiatrist’s evidence ought not to have been accepted by the court. Once that evidence was accepted, and properly so, any claim that the complainant gave her consent as made by the appellant, is of no consequence at law. The law does not recognise consent purportedly given by a person who has no capacity to give such consent for purposes of decriminalising an otherwise unlawful act. A somewhat similar rejection of such “consent” as being of no consequence in any attempt by a perpetrator to extricate himself or herself from criminal liability is to be found in section 70(2) of the Criminal Law (Codification and Reform) Act in terms of which consent by a young person, being a boy or a girl under the age of sixteen years is no defence to the offence of sexual intercourse or performing an indecent act with a young person. In casu, it is highly improbable, on the evidence on record, that the appellant could not have known of the complainant’s mental incapacity. Even on the appellant’s version of events, an invitation by the complainant to engage in sexual intercourse while she was having her menstrual cycle would have been an indicator of her not being normal. The appellant does not deny having sexual intercourse with the complainant. He claims that they had sexual intercourse twice and that it was with her consent. Such consent, as discussed above, is of no consequence in his favour for the reasons also discussed above. In view of the complainant’s mental incompetence which, as also discussed above, was established by evidence, the appellant’s conviction on a charge of having sexual intercourse with a mentally incompetent female person cannot be faulted.

The invitation by Mr Tandi for this court to call the complainant in order for this court to make its own assessment of her mental competence has not found favour with this court. The trial court’s failure to have her called was justified in view of the psychiatrist’s evidence that the complainant could not follow and understand court proceedings. The trial court would, had it done otherwise, fallen foul of the provisions of section 246 of the Criminal Procedure and Evidence Act [Cap 9:07] which reads;

“246

No person appearing or proved to be afflicted with idiocy or mental disorder or defect or labouring under any imbecility of mind arising from intoxication or otherwise, whereby by he is deprived of the proper use of reason, shall be competent to give evidence while under the influence of any such malady or disability.”

The complainant was examined and assessed by an expert who testified as to her mental incompetence. Her evidence resonated with that of the complainant’s father. The nurse also made a similar observation. I did not hear Mr Tandi to allege a conspiracy by all three to create a false impression to the complainant’s mental incompetence. In fact such a conspiracy, if it were to be alleged, would need to include the complainant as a co-conspirator. There is no need nor justification, in my view for this court to call the complainant to appear before it.


The submission in paragraph8.19 of Mr Tandi’s heads of argument that the appellant’s conviction is premised on a wrong section and was based on wrong considerations and thus prejudices the appellant who will be condemned to prison for a crime which he had no intention to commit, tearing apart the appellant’s right to affair trial and rendering section 64(3) of the Code irrelevant is, in my view, and for reasons discussed above not borne out on a reading of the record of proceedings. The appeal against conviction cannot succeed in the circumstances.

With regard to the appeal against sentence it is important to note that the penalty provision in section 65(1) provides for a sentence of imprisonment for life or any shorter period.

The trial court rightly observed:-

“Accused is only attempting to hide behind his finger. This is a straight forward issue that he know the complainant’s mental status and intends to enjoy the best of two words if one is to look at his defence outline and interlocutory application in admissibility of the evidence of…the complainant which was intended to pre-empt the trial. The accused should be deterred from taking advantage of people of the likes of the complainant to sexually molest them under the false guise that he considered her as sane….. a custodial sentence will meet the justice of this case”.

If anything, the trial court erred on the side of leniency in imposing the sentence that it did after having made the quote very opposite remarks that echo the intention of the legislative in criminalising conduct as that of the appellant in this case; the protection of mentally incompetent persons from unscrupulous members of society as well as from themselves by reason of their mental incompetence.

The sentence does not induce a sense of shock. There is no reason for this court to interfere with it.

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

HUNGWJ. AGREES

Kantor & Immerman, appellant’s legal practitioners

The Attorney General’s Office, respondent’s legal practitioners
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