George Ndebele v The State

The appellant, aged 61 years, was convicted in the Regional Court for the Western Division of rape in contravention of section 65 of the Criminal Law (Codification and Reform) Act. It was alleged that on 2 November 2008 at house number 6264 Nkulumane, Bulawayo, he unlawfully had sexual intercourse with his own daughter, Sindiso Ndebele, aged 6 years. He pleaded not guilty but was convicted and sentenced to 18 years imprisonment, with 6 years suspended for 5 years on conditions of good behaviour. He noted an appeal against conviction and sentence, but the notice of appeal was filed out of time. An application for condonation had not been finalised when the matter came for hearing. The complainant gave conflicting evidence at trial, initially stating the appellant had raped her, but later during cross-examination stating she had been raped by one Andile and that the appellant had not raped her. When questioned by the court, she confirmed the appellant had not raped her and could provide no reason for her initial accusation.

• Whether the conviction was in accordance with real and substantial justice given the complainant's contradictory evidence
• Whether a substantial miscarriage of justice occurred
• Whether the court could exercise review powers under section 29 of the High Court Act in circumstances where an appeal was noted out of time

The conviction and sentence were set aside. The appellant was ordered to be immediately released and a warrant of liberation was issued.

A conviction cannot be sustained where the complainant gives fundamentally contradictory evidence that does not support the charge, initially alleging rape by the accused but later recanting and stating the accused did not rape her. Such contradictory evidence constitutes a substantial miscarriage of justice and proceedings based on such evidence are not in accordance with real and substantial justice. The High Court may exercise its review powers under section 29 of the High Court Act to set aside a conviction and sentence where a substantial miscarriage of justice is apparent from the record, even where an appeal has been noted out of time and condonation is pending.

The court did not make extensive obiter observations in this case. The judgment is relatively brief and focused on the core issue of the contradictory evidence and the resultant miscarriage of justice. The court's decision to convert the matter from an appeal to a review at the suggestion of counsel, while procedurally significant, was not elaborated upon beyond the practical necessity of addressing the evident injustice despite the procedural irregularity of the late appeal.

This case demonstrates the Zimbabwean High Court's willingness to exercise its review powers under section 29 of the High Court Act to correct a substantial miscarriage of justice, even where an appeal is out of time and condonation has not yet been granted. It emphasizes the fundamental principle that convictions cannot stand where the complainant's evidence is fundamentally contradictory and does not support the charge, particularly in serious criminal matters such as rape. The case illustrates the court's duty to ensure that proceedings accord with real and substantial justice, and that substantial miscarriages of justice must be remedied regardless of procedural irregularities in the appeal process.