Alex Dube v The State

### Preamble
Judgment No. SC 31/25
1
Civil Appeal No. SCB 110/24
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REPORTABLE (31)

ALEX     DUBE

v

THE     STATE

SUPREME COURT OF ZIMBABWE

MAVANGIRA JA, MATHONSI JA & MUSAKWA JA

BULAWAYO: 17 MARCH 2025 & 19 MARCH 2025

K. I. Phulu, for the appellant

K. Jaravaza, for the respondent

MAVANGIRA JA:

This is an appeal against the whole judgment of the High Court sitting at Bulawayo (“the court a quo”) handed down as judgment number HB 188/24 wherein, after striking out all but one of the appellant’s several grounds of appeal against both conviction and sentence on the basis that they were invalid, it allowed the appeal in part, setting aside the sentence of 15 years imposed against the appellant and substituted it with one of   an effective 12-years imprisonment.

FACTUAL BACKGROUND

On 21 July 2023, the appellant, a male adult aged 56, was charged with rape as defined in s 65(1) read with s 64(1) of the Criminal Law (Codification and Reform Act)                   [Chapter 9:23] (” the Criminal Law Code”) it being alleged:

“…. that on the date unknown to the prosecutor but during the month of December 2022, and at Sibangani village, Mbizingwe area, Esigodhini, Alex Dube a male adult unlawfully had sexual intercourse once with Angela Ncube, a female juvenile aged 11, who at law is deemed incapable of consenting.”

PROCEEDINGS BEFORE THE TRIAL COURT

The appellant was arraigned before the Gwanda Regional Magistrate Court (“the trial court”).  The appellant entered a plea of not guilty to the charge.  Before the trial court, the complainant testified that she had been raped twice, firstly by a man named Innocent Dube and secondly, by the appellant during the month of December 2022.  According to the complainant, she was herding goats before Christmas in 2022 when Innocent sexually assaulted her.  Furthermore, the complainant testified that the rape by the appellant occurred after Christmas in 2022 when she had been sent by her aunt Belisi Ncube to go to an area that had network coverage in their village which was referred to as “the network point”, to receive messages on her phone.  Upon getting to the network point, the complainant met the appellant who asked her to send him airtime, but she responded by telling him that the phone was not hers.  He then asked her to come closer to where he was and asked if she wanted sweets, to which she responded in the affirmative.  The appellant then took the complainant behind a bush and ordered her to remove her clothes. The complainant complied and removed her track bottom and pants.  The appellant also undressed and proceeded to have unprotected sexual intercourse with the complainant.  When he was done, he then instructed her not to tell anyone of the incident threatening her with death if she ever revealed the rape.

Before the trial court, the complainant narrated that there were no witnesses to the incidents.  According to the complainant, her aunt Belisi, found her scratching her private parts at night in her sleep, in a room she shared with other children.  The aunt used a torch light to check the complainant’s private parts and realised that she had sores and a discharge.  She went on to wake up the complainant’s sister and examined her private parts and realised that she did not have a similar affliction.   The aunt inquired from the complainant why she was scratching her private parts and she revealed the rape incident. The aunt took the complainant to the clinic where she was examined.  The complainant testified that she had not reported the offence because she was so afraid of the appellant’s threats to the extent that when he came to the clinic during the time she was narrating how she was raped, she immediately stopped doing so.  The complainant maintained her testimony under cross-examination that she had been raped firstly by Innocent, when she was herding goats and secondly by the appellant at the network point.

The complainant’s aunt, Belisi Ncube, testified that the complainant was her brother’s daughter.  She corroborated the complainant’s testimony that she sent her to the network point at around 5 pm., from where she delayed in coming back.  She narrated that some days later, she found the complainant asleep but scratching her private parts leading her to ask the complainant about it and the latter telling her about the rape incident.  Belisi then took the complainant to the clinic to be examined, and in her testimony, she stated that when the appellant walked in while the complainant was narrating the rape incident to the nurse, she suddenly stopped narrating her ordeal. Belisi also testified that Innocent’s relatives were present at the clinic as the complainant was narrating the rape incident.

The third witness, Themba Maplanka, a police officer, testified that he investigated the case and subsequently arrested the appellant.  He testified that the appellant surrendered himself on 12 March 2023 after he had previously evaded arrest.  The State also tendered into evidence the complainant’s age estimation report and medical affidavit.

In his defence, the appellant denied having raped the complainant. He maintained that the complainant had been raped by Innocent and not him.  He further testified that he had been in an extra-marital affair with Belisi which ended in October 2022 after they had been caught having sexual intercourse by Abigail Dube, who is a sister to Belisi’s husband.  He stated that Belisi was influencing the complainant to lie against him as she was bitter because of how their adulterous relationship ended.  He further testified that the network point was a public and open spot used by a lot of people during work and dismissal time and hence he could not have raped the complainant at such an open place.

The appellant also called as his witness one, Lungani Hadebe, who testified that the network area is close to a church and there are shops nearby.  He also stated that the network point is always packed with people and that there is a small bush next to it.  He disputed the allegations that the appellant had an extra-marital affair with the Belisi.

Lastly, the defence called Abigail Dube, who is a sister to Belisi’s husband.  She testified that in October 2022 she had found the appellant and Belisi in a bush having sexual intercourse.  She further testified that she had not told her brother of the incident, but instead had confronted the appellant as she felt the issue would cause problems between her brother and Belisi.  Abigail Dube also testified that the network point was an open place with no trees or bushes.

The trial court thoroughly assessed the evidence including the medical report, the complainant’s testimony and the testimonies of the other witnesses in reaching its verdict. It made a finding that from the evidence of the complainant, although she mixed up dates of when the rape incident occurred, she was a credible witness as she was able to show that the incident occurred in December 2022.  The court also noted that she was able to positively state that she was sexually assaulted by the appellant and Innocent Dube.  The court initially warned itself against the dangers of the evidence of young children.  Having thus cautioned itself, the court found that there was no reason why it could doubt the evidence of the complainant.

The trial court refused to accept the suggestion by the appellant that the rape incident could not have occurred at the network point as it was an open space frequented by the public.  The court found that the complainant had testified that the network area has a bush and that this position had been confirmed by the appellant’s own witness, Lungani Hadebe.  The court also dismissed the appellant’s argument that the complainant had been influenced by the aunt to make a false rape report, because the said aunt was bitter as a jilted lover.  The court discredited the evidence of Abigail Dube that she had found the appellant and Belisi having sexual intercourse in the bush noting that the evidence of the existence of an adulterous affair between the two was unsubstantiated and that in any event she had not reported the incident to Belisi’s husband indicating that it was a fabrication.

With regards to the allegation advanced by the appellant that the complainant had been raped by Phillip, Belisi’s son, the court noted the complainant had not at any time pointed to him as being the perpetrator of the rape. Also, the defence witnesses could not substantiate those allegations even though they vaguely suggested that Phillip had been at the homestead at the material time.  The court thus disbelieved the versions given by the appellant and found him guilty of rape. The court sentenced him to 15 years imprisonment.

PROCEEDINGS BEFORE THE COURT A QUO

[13] Aggrieved by the decision of the trial court, the appellant appealed to the court a quo against both conviction and sentence on 14 October 2024.  Before the court a quo, the appellant raised twelve grounds of appeal against conviction and three grounds against sentence in the initial notice of appeal.  The appellant then sought to amend the grounds of appeal in terms of r 41(1) of the High Court Rules, 2021. The notice of amendment was however riddled with irregularities resulting in the amendment being refused and the court reverted to the initial notice of appeal which had been filed on 23 July 2023. Counsel for the appellant then abandoned some of the grounds of appeal leaving seven grounds, four of which were against conviction and three against sentence. Of the remaining grounds, the court a quo struck out all the grounds, save for one, on the basis that they were incomprehensible.  The determination of the appeal was, therefore, limited to the third ground of appeal which challenged the admissibility of the sexual complaint.

[14]   In dealing with the single ground of appeal the court a quo made a finding that the sexual complaint was made freely and voluntarily as the complainant’s aunt had found her scratching her private parts and examined her to determine the cause.  It further found that the child was forthright that she had been raped by two people, that is the appellant and Innocent.  The court a quo highlighted that courts are designed to protect children from such abuse and that what is important in every case is to assess whether the guilt of an accused person has been proven beyond reasonable doubt.  Further it remarked that guilt is not entirely dependent on the victim especially where he or she is a child.  In circumstances where such child a child has reported the abuse to someone else, if the child’s evidence is found to be satisfactory in court, it would be enough to ground a conviction.  For this reason, the court made a finding that the appellant had been correctly convicted by the trial court.

[15]  On sentence, the court a quo took into consideration s 70(1)(k) of the Constitution of Zimbabwe, 2013, which specifically proscribes the retrospective application of punishments.  The court a quo noted that the trial court used a wrong principle of the law in its assessment of the appropriate sentence for the appellant remarking that the amendment to s 65 of the Criminal Law Code, which introduced two tiers of minimum mandatory sentences for rape under which the trial court sentenced the appellant had only come into effect in July 2023, long after the offence was committed.  It was not intended to apply retrospectively, therefore, the trial court erred by using the amended law in sentencing the appellant.  The court allowed the appeal against sentence and set aside the 15-year imprisonment sentence imposed by the trial court and substituted it with an effective 12 years. The court suspended 3 years imprisonment for 5 years on condition that within that period, the appellant does not commit any offence involving sexual intercourse or sexual violence for which he would be sentenced to imprisonment without the option of a fine.

[16]   Aggrieved by the decision of the court a quo, the appellant has noted the present appeal based on three grounds of appeal. At the hearing of the appeal, counsel for the appellant however abandoned the first and second grounds of appeal and motivated the appeal on the basis of the third ground which reads as follows:

“Alternatively, the court erred and grossly misdirected itself in dismissing the appeal against conviction without assessing whether the trial court had applied the correct test in weighing the version of the complainant as against that of the accused. It improperly upheld the conviction which was reached without determining whether the accused’s version was reasonably possibly true.”

SUBMISSIONS BEFORE THIS COURT

[17]  Mr Phulu, counsel for the appellant, argued that the court a quo erred in dismissing the appeal against conviction without considering the totality of the evidence advanced by the appellant.  Counsel argued that the evidence of the appellant was not assessed by the trial court which did not apply the correct test before rejecting it, namely whether his version was reasonably true.  He argued that the trial court refused to believe the appellant’s version of the events, that is, that he could not have raped the complainant, that the area where the rape occurred was a public area with a small bush where people would see him, that he had an adulterous relationship with the complainant’s aunt and as such there was motive for the complainant to implicate him and lastly, that the person who raped the complainant was not him but Innocent Dube or Phillip. He maintained that the trial court erred in believing the complainant over the appellant, whose version of events was more probable. Counsel thus prayed for the success of the appeal.

[18] Per contra, Mr Jaravaza counsel for the respondent, argued that this Court can only interfere with the sentencing discretion of the court a quo if it grossly misdirected itself. Counsel argued that the complainant was eloquent and stuck to her testimony that the appellant raped her. Counsel also submitted that the complainant was able to differentiate the rape perpetrated by Innocent Dube from that perpetrated by the appellant impressively.  Also, there was no evidence to show motive which could result in the complainant lying against the appellant.

[19] Counsel submitted that the report of the rape had been made voluntarily by the complainant after her aunt had seen her scratching her private parts and that the medical report confirmed that she had been raped.  Counsel argued that the appellant’s version of events was found to be improbable by the trial court after it was discredited.  The issue of the absence of a bush was discredited by the respondent’s witnesses including one of the appellant’s own witnesses who testified that there was a bush at the scene where the rape was committed. Also, counsel submitted that the adulterous relationship between the appellant and the complainant’s aunt was disbelieved, and the issue of motive was not proved by any evidence. In that regard, counsel prayed that the appeal be dismissed.

ANALYSIS

The sole ground of appeal raises an issue relating to whether the trial court as well as the court a quo erred in respectively finding and upholding, that the appellant’s version of events was improbable compared to that of the complainant.  In this regard the appellant wants this Court to find that the court a quo ought to have believed his version of events against that of complainant.

It is trite law that in a criminal trial the onus of proof is on the State to prove the commission of the offence beyond reasonable doubt and that there is no onus on an accused person to prove his innocence.  In R v Difford 1937 AD 370 at 373 the court said:

“No onus rests on the accused to convince the court of the truth of any explanation he gives. If he gives an explanation, even if that explanation be improbable, the court is not entitled to convict unless it is satisfied, not only that the explanation is improbable, but that beyond any reasonable doubt it is false. If there is any reasonable possibility of his explanation being true, then he is entitled to his acquittal.”

In criminal cases, the standard of proof required for a conviction is proof beyond a reasonable doubt.  The Court in Musimike v The State SC 57/20 citing the remarks by Dumbutshena CJ in S v Isolano 1985 (1) ZLR 62 (S) at 64G-65A discussed what constitutes proof beyond a reasonable doubt as follows:

“In my view the degree of proof required in a criminal case has been fulfilled. In Miller v Minister of Pensions [1947] 2 All ER 372 (KB), LORD DENNING described that degree of proof at 373H as follows:

‘…… and for that purpose, the evidence must reach the same degree of cogency as is required in a criminal case before an accused person is found guilty. That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence 'of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.”

In casu, the State led evidence through the complainant and her aunt.  The trial court found that the complainant’s version of events of the rape was more probable as she was able to identify the perpetrator of the offence, and she had voluntarily reported the rape. The appellant, on the other hand, narrated his own side of the story and maintained that he did not commit the crime.  The trial court believed the complainant and rejected the appellant’s alternative version of events which it found to be false. The narration of events by the complainant before the trial court was clear.  The record reflects that the complainant was able to keep to her testimony and maintained her version of events during cross-examination. Even though she mixed the dates of when the offence occurred, the trial court believed her version of events because she was a credible witness.

The case made out by the complainant was well corroborated by her aunt who testified that she realised that the complainant was having an itch and inquired from her what was causing the itching resulting in the complainant talking about the rape incident.  The evidence of the aunt further buttressed the testimony of the complainant to the effect that she had clearly identified Innocent Dube and the appellant as the two people who had raped her on different occasions.  Also, that when the appellant arrived at the clinic where the complainant was being assessed, the minor girl had gone quiet in fear of the appellant.

The appellant’s version on the other hand, was that he was never at the network point and did not rape the complainant.  The appellant stated that the network point is an open place with no bush or tree under cover of which he could have raped the complainant without being seen.  He raised the point that the complainant’s aunt had a motive to make the complainant lie against him as their adulterous relation had ended badly.  He further testified that the complainant had in fact been raped by Phillip, who is the son of Belisi, and that the issue had been known around the community.  Lastly, he maintained that the complainant had identified Innocent Dube as the perpetrator of the rape and not him.  This version was rejected as being not only improbable but clearly false.

The trial court having decided the matter on credibility, the appellant was required to lay a basis for interference by the appellate court.  He dismally failed to do so.  The court                   a quo cannot be faulted for arriving at that conclusion.

In Mangoma v The State SC 36/20 at p 11 the court took occasion to discuss the application of an alternative version of events proposed by an accused person. It was held that:

“It is trite that where an accused person has given an explanation, the court is not at liberty to reject it unless satisfied, not only that the explanation is probable, but that it is, beyond a reasonable doubt, false.”

Also, in S v Schackell 2001 (4) SA 1 (SCA) at para 30 the court said:

“Equally trite is the observation that in view of this standard of proof in a criminal case, a court does not have to be convinced that every detail of an accused’s version is true. If the Accused’s version is reasonably true in substance the court must decide the matter on the acceptance of that version. Of course, it is permissible to test the accused’s version against the inherent probability but it cannot be rejected merely because it is improbable; it can be rejected if it can be said to be so improbable that it cannot reasonably possibly be true.”

See also S v Kuiper 2000 (1) ZLR 113 (S).

The above authorities are instructive in this matter.  For an accused’s version of events to be successfully considered by a court, it must be reasonably true in substance.  This was not the situation in this case, the appellant’s version of events clearly had no leg to stand on as it was not in any way probable.  The evidence before the court was clear and led to one conclusion that the appellant raped the complainant at the network point. In any event, the court a quo could not easily set aside factual findings made by the trial court as it was the court which enjoyed the opportunity to see the witnesses on the stand, assess their demeanour and credibility.  See Mtimukulu v Nkiwane & Anor SC 136/01.  Only if the factual findings were grossly unreasonable, could the court a quo as an appellate court, set aside the findings.  See ZINWA v Mwoyounotsva 2015 (1) ZLR 935 (S), Hama v NRZ 1996(1) ZLR 664 (S), Reserve Bank of Zimbabwe v Corrine Granger & Anor SC 34/01.

DISPOSITION

The court a quo was correct in dismissing the appellant’s appeal against conviction.  The decision of the trial court was unassailable.  The ground of appeal thus lacks merit and cannot succeed.

In the result, it is accordingly ordered as follows:

“The appeal be and is hereby dismissed.”

MATHONSI JA		:	I agree

MUSAKWA JA		:	I agree

Ndhlovu, Mehluli & Partners, appellant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners