State v Zex Kapuyanyika

### Preamble
1
HH 660-18
CRB CHNR 132/18
---------


STATE

versus

ZEX KAPUYANYIKA

HIGH COURT OF ZIMBABWE

MUSAKWA & MUREMBA JJ

HARARE, 12 October 2018

Review Judgment

MUREMBA J: The accused (31) was charged with and convicted of rape as defined in s 65 (1) of the Criminal Law Codification and Reform Act [Chapter 9:23] for raping his sister-in-law, the wife to his young brother on 13 April 2018 in her bedroom at village one Nyamugomba, Chinhoyi during the night.

The accused did not deny that he had sexual intercourse with the complainant (18). His defence however was that the sexual intercourse was consensual since they were in love. The accused said that this happened when he had gone to the village from his work place to visit his parents. The complainant was staying with his parents. The accused said that he spent 2 nights sleeping in the complainant’s bedroom having consensual sexual intercourse with her. He said that his father saw him coming out of the complainant’s bedroom and he told the complainant about it. She suggested that they should wait and see how his father would react. On 15 April 2018 the accused left for his work place without anything having happened. The next thing he was arrested by the police.

In her testimony the complainant said that the accused came home from his work place to visit his mother who was ill. He arrived at night. She cooked for him and later went to her bedroom to sleep. At midnight the accused broke into her bedroom. When she asked him what he wanted he threatened to stab her with a knife as he placed a knife on her chest. He indicated to her that he wanted to have sexual intercourse with her. He then raped her once and left the room. She said that the accused tore her panty when he raped her. She said that she had however forgotten the panty at home.

The complainant said that on the next morning she reported the rape to her mother in law who told her to wait for her husband who was working in Banket to come home. She said that she then decided to go to her parents’ home in Mhangura. Her husband later came home and followed her to Mhangura. No one had told him about the rape. He took her back to his parents’ home. Upon their arrival at his parents’ home, his mother then told him about the rape. He went and reported the matter to the police. This led the complainant to go to the police to report. She was later taken for medical examination.

Under cross examination the complainant vehemently denied having been in love with the accused. Accused put it to her that she is the one who had invited him to come to her bedroom later on the night he arrived. The complainant denied it. He also put it to her that he had left his shirt inside her bedroom because it was too dark to see it, but the complainant denied it. He said that he had given her $10 after she had said that she wanted to go for a holiday. He also said that he had bought a chicken for her after she had asked for it. The complainant denied all this.

The accused’s mother testified as a State witness. She said that she knew nothing about the rape. She however said that the accused had indeed come home to visit her. She said that at the material time she was seriously ill and could not even rise. She said that the complainant then just ran away and went to her parents’ home without bidding farewell. The accused’s mother said that she only learnt of the rape after the accused had been arrested when her other son told her about it. She said that the complainant never told her about the rape.

The complainant’s husband testified too. He said that he got to know about the rape when he was told about it by his mother and step-father. He said that he then enquired from his wife, the complainant if it was true. At first she denied having had sexual intercourse with the accused, but she later said that the accused had forced her to have sexual intercourse with her. He said that the complainant made this disclosure to her after he had followed her to her parents’ home. He said that she told her that she had returned to her parents’ home because the accused had told her that he (her husband) would not be coming back home from Banket where he was working. He said that the complainant only admitted to having had sexual intercourse with the accused after he had forced her to confirm what his mother and step father had told her. He said that the complainant reported the matter to the police after he had told her to go and report.

After the testimonies of these 3 witnesses the State closed its case. The accused who was the sole witness for the defence case maintained that the sexual intercourse had been consensual.

The learned regional magistrate went on to convict the accused on the basis of the evidence led from the complainant and her husband which he said corroborated each other. He said that the accused’s mother had been motivated to lie that she had not received the rape report from the complainant in a bid to protect her son.

However, contrary to the findings of the learned regional magistrate, the evidence that was led on behalf of the State did not prove beyond reasonable doubt that the accused committed the offence of rape. It was marred with a lot of inconsistences which the State did not even attempt to reconcile. All its 3 witnesses gave different versions of how the rape came to light. If the learned regional magistrate had considered these inconstencies and made a proper analysis of witness credibility he would not have convicted the accused.

It is a fact that rape is very rampant in our jurisdiction and of late there has been a clarion call to the courts to be tough with rapists and impose stiffer penalties. However, whilst the courts should heed this call, they should not be clouded by it. They should remain impartial, unprejudiced, dispassionate, objective and fair minded when dealing with such matters bearing in mind that not every person who is alleged to have committed rape is actually guilty. There are some people who are innocent who are falsely accused. False rape accusations ruin lives and it is a universal risk to any man. Lives are ruined because rape is a crime punishable with several years of imprisonment. There are various reasons why some people lie about having been raped or sexually abused, one of them being to avoid getting into trouble. Therefore when dealing with offences of a sexual nature and other criminal offences at large, it is very important for the court to make an assessment of witness credibility before arriving at a verdict. A multiplicity of factors should be considered in assessing a witness’s credibility. It is my considered view that some factors to consider are:

Does the witness have a history of being untruthful?

Does the witness have a motive to be untruthful or less than candid and forthcoming?

Is the witness’s story plausible?

Can the witnesses’ story be corroborated by other witnesses or evidence e.g. documents, photographs, recordings etc.?

Was the witness consistent or able to reconcile conflicting testimony?

How was the witness’s demeanour i.e. body language, eye contact, nervous, defensive, shocked, relaxed, evasive, argumentative, etc.? The trial court has the advantage of seeing and hearing the witnesses and complaints in the atmosphere of the trial.

Does the witness have a stake in the outcome of the case, e.g. a personal relationship with the complainant or the accused which could create a bias?

Did the witness have the opportunity and ability to accurately observe the things he or she testified about?

Did the witness appear to understand the questions clearly and answer them directly?

Did the witness seem to have a good memory?

These factors are not exhaustive. See also P J Schwikkard & S E van Der Merwe Principles of Evidence (Juta & Company (Pty) Ltd 4 ed 2016) p 574-577.

The court should make a determination on credibility by identifying the factors which caused it to believe or not to believe a witness’s version of events. No single factor proves that a given witness is credible or not credible. The factors are considered collectively. Witness credibility assessment is not a subjective opinion but, instead a reasoned analysis that is based on the evidence. The assessment is essential for the court in determining what actually happened in the case before it.  The court must consider all the evidence. It should decide whether it believes what each witness had to say and how important the testimony was. In making that decision the court may believe or disbelieve any witness, in whole or in part. The number of witnesses testifying concerning a particular point does not necessarily matter. When witnesses contradict each other, the court should analyse the degree to which each witness is reliable. To do this, the court should use the same credibility assessment factors highlighted above. In doing the assessment, the court should always bear in mind that the duty to prove the case beyond reasonable doubt against the accused lies on the State. All that the accused is required to do in a criminal trial is to put forward a case which is reasonably true. See S v Dube 1997 (1) ZLR 225 (S) and S v Nziradzepatsa 1999 (1) ZLR 568 (H). If there is doubt, the benefit of such doubt has to go to the accused.

In the present case it does not look like the learned regional magistrate took time to make an analysis of the State witnesses’ credibility. He made no attempt to analyze and see if the inconsistent testimonies which were led on behalf of the State on how the rape report came to light had been reconciled. The complainant said that she told the accused’s mother about the rape on the following morning, but the accused’s mother denied it. She said that the complainant just ran away and went back to her parents’ home without saying goodbye. The complainant’s husband said that he learnt of the rape from his mother and step father upon his arrival home before he followed the complainant to her parents’ home where she had gone. This version suggests that the complainant had indeed reported the rape to her mother in law as she said. One is then inclined to think that the accused’s mother was now denying having been told about the rape in a bid to protect her son. The problem however is that the complainant then said when her husband followed her to her parents’ home no one had told him about the rape. He took her back to his parents’ home and it was upon arrival that he was then told about the rape by his mother. So as far as the complainant is concerned, her husband only got to know about the rape after they had returned to his parents’ home together from her parents’ home. On the other hand the husband’s version is to the effect that he first got to know about the rape from his parents before he followed the complainant to her parents’ home and he questioned the complainant about it whilst at her parents’ home. From the foregoing it is not clear at what stage the complainant’s husband go to know about the rape. Was it before he followed his wife to her parents’ home or was it after he had returned with his wife from her parents’ home? It is therefore not clear where the complainant was when she was questioned about the rape by her husband. It remains unclear whether this happened when she was still at her parents’ home or after the two had returned to her husband’s home. The inconsistency between the complaint’s testimony and that of her husband was not reconciled. In light of that conflict between the two testimonies, both witnesses could not have been telling the truth.

If we go by the complainant’s version that when her husband followed her to her parents’ home he did not know anything about the rape because no one had told him about the rape, the question that comes to mind is why did she not tell him about the rape herself? Why did she return with him to his parents’ home without saying anything yet she claims to have told his mother before she left? If she could tell his mother, why could she no tell her husband when he followed her? The State did not ask the complainant all these pertinent questions. She was not even asked whether or not she had reported the rape to her parents. In fact what is puzzling about the complainant’s evidence is that she never explained that her husband eventually questioned her about the rape. She also did not explain what she told her husband about how the rape took place.

If we take the complainant’s husband’s version to be true, the complainant’s behaviour is found wanting again. The husband said when he questioned her at first she denied having had sexual intercourse with the accused, yet she is the same person who claims to have voluntarily reported the rape to her mother-in-law soon after the rape. If she had already reported the matter to her mother-in-law, what was so difficult about confirming the rape to her husband when he questioned her? What was the point in denying that which she had already reported voluntarily to her mother-in-law without having been threatened or unduly influenced? Her denial confirms the mother-in-law’s version that she never reported the rape to her before she ran away and went to her parents’ home. For a rape report to be admissible it should have been made voluntarily and not as a result of questions of a leading and inducing or intimidating nature. See S v Banana 200 (1) ZLR 607 (S) and R v Petros 1967 RLR 35 (G) at 39G-H. What is clear in this matter is that soon after the rape the complainant did not report to anyone at her husband’s home. She did not report to anyone when she got to her parent’s home.  When her husband followed her she did not report. She only revealed it after having been questioned by her husband. This means that the report was not voluntary. The husband said that when she denied initially, he forced her to confirm what his mother and step father had told him. This means that the complainant was intimidated into confirming what had already been said by her in laws.

In terms of the law for a rape report to be admissible it should also be made without undue delay and at the earliest opportunity, to the first person to whom the complainant could reasonably be expected to make it. See S v Banana supra, S v Makanyanga 1996 (2) ZLR 231 (H) at 242 G-243C.  In casu the complainant had to be asked by the husband otherwise she would have kept quiet about this matter. Her silence to a greater extent confirms or corroborates the accused’s defence that the sexual intercourse had been consensual. This also explains why the complainant just ran away from her parents-in-law’s home and went back to her parents’ home without bidding farewell. If she had reported the rape to her mother-in-law and the mother-in-law had in turn told her to wait for the return of her husband why then did she run away? If she had been raped by the accused, why did she not report this to her own parents when she got home? The accused’s defence is more credible than the complainant’s story. The sexual intercourse was consensual. This explains why the complainant gave varying explanations for returning to her parent’s home before the return of her husband from Banket where he was working. In court she said that she just decided to go to her parents’ home. To her husband she said that it was because the accused had told her that her husband was not coming back home from Banket where he was working.

It is clear that the complainant went into panic when she learnt from the accused that her father in law had seen the accused leaving her bedroom at night. This is why she ran away. What remains unclear is whether or not the father-in-law confronted her about it. It is also not clear whether or not the complainant’s husband was told about the rape by his mother and step father when he arrived home from his workplace. I say this because no one corroborated this version which was given by the complainant’s husband alone. His mother denied having had any knowledge about the rape prior to the accused having been arrested. The step-father was not called to testify. It could be that he is the one who told the complainant’s husband since according to the accused he is the one who saw him leaving the complainant’s bedroom. With all these unanswered questions and discrepancies, it was not safe for the learned regional magistrate to convict the accused. His guilt was not proven beyond reasonable doubt.

It appears to me that the accused’s mother was a credible witness because her evidence was corroborated by the complainant’s conduct. Her conduct or action was not consistent with the conduct of a person who had made a report to her mother-in-law.

I believe the testimony of the complainant’s husband in part. The part that I believe is when he explains what the complainant said when he questioned her about the rape. I could not see or find a reason why he would be untruthful about it. The part that remains uncertain or unclear is about who exactly told him about the rape and at what stage he was told about it. However, I cannot say he lied about it because it is the prosecutor and the court who did not ask him to clearly explain on this aspect. This is in light of the fact that his mother had already testified and had said that she had had no knowledge of the rape until after the accused had been arrested. It could be that the complaint’s husband had learnt of the rape from his step father since he is the one who is said to have seen the accused coming out of the complainant’s bedroom.

The complainant did not impress as a credible witness. All the inconsistences in the State case emanated from her. She was economical with the truth. She had sexual intercourse with a brother of her husband. Obviously, she was trying to avoid getting herself into problems. She had a marriage to protect or to preserve. She had every motive to lie that she had been raped.

In the result, I hereby quash the conviction and set aside the sentence of 14 years imprisonment which was imposed on the accused. A warrant of liberation is hereby issued for the release of the accused from prison.

MUSAKWA J agrees ……………………………………………….