Foster Kaseke v The State

The appellant was charged with rape under section 65 of the Criminal Law (Codification and Reform) Act. The allegations were that on 2 August 2013 at Matienga Village, Mhondoro, the appellant had sexual intercourse with Susan Mutandwa without her consent. The appellant pleaded not guilty. He was convicted of having sexual intercourse with a young person in contravention of section 70 of the Criminal Law (Codification and Reform) Act. The appellant tested HIV positive and was sentenced to a mandatory minimum sentence of 10 years imprisonment in terms of section 80(1) of the Criminal Code. The appellant maintained throughout that he had reasonable cause to believe the complainant was 16 years or older, citing her physical maturity, behaviour, posture, pride, forward character, and the fact that his younger brother who was her classmate was 16 or 17 years old. A witness, Tineyi Chikanga, corroborated the appellant's view about the complainant's apparent age.

• Whether the State proved the appellant's guilt beyond reasonable doubt
• Whether the appellant had reasonable cause to believe that the complainant was 16 years old or more when he had sexual intercourse with her, as provided for in section 70(3) of the Criminal Law (Codification and Reform) Act
• Whether the trial court erred in imposing a mandatory sentence of 10 years imprisonment
• The proper interpretation and application of the defence provided in section 70(3) of the Criminal Law (Codification and Reform) Act

The appeal was upheld in its entirety. The conviction of the appellant was quashed and the sentence set aside. The appellant was found not guilty and acquitted of the charge.

The binding legal principle is that under section 70(3) of the Criminal Law (Codification and Reform) Act, an accused person has a full defence if he or she can satisfy the court on a balance of probabilities that he or she had reasonable cause to believe that the young person was 16 years or over at the time of the alleged crime. 'Reasonable cause' refers to the physical maturity of the complainant read together with other matters (such as behaviour, posture, character, and comparative age with peers) which created in the mind of the accused the impression that the complainant was sixteen years old or more. Physical maturity alone does not constitute reasonable cause, but it can be considered together with other factors. The State must lead evidence to show that the defence is unreasonable; where the State fails to do so and the accused maintains a consistent account, the defence remains available and the accused must be acquitted.

The court made non-binding observations criticizing the State's approach of asking the court to accept certain portions of the complainant's evidence while rejecting others, without providing a formula for determining which areas should be regarded as credible. The court also observed that it was difficult to appreciate why the trial court, having found that the complainant had lied in several areas, would not consider that she was capable of misleading the appellant about her apparent age. The court noted that a person prepared to lie before the court could be a cunning person capable of such deception.

This case is significant in Zimbabwean criminal jurisprudence as it clarifies the interpretation and application of section 70(3) of the Criminal Law (Codification and Reform) Act, which provides a defence where an accused had reasonable cause to believe that a young person was 16 years or older. The case establishes that 'reasonable cause' is not limited to physical maturity alone but includes other factors such as behaviour, posture, character, and comparative age with peers. It also confirms that the standard of proof for establishing this statutory defence is on a balance of probabilities, not beyond reasonable doubt. The case further emphasizes the importance of credibility assessments and the dangers of convicting where the State has failed to establish guilt beyond reasonable doubt and where a complainant has been found to be unreliable.