Proviencer Ncube v The State

On 11 November 2013, the appellant arrived at the homestead of his 12-year-old cousin sister (the complainant) in Ndimakule village under Chief Shana in Jambesi. He asked the complainant to accompany him to deliver medication to another homestead. The complainant agreed and accompanied him. After delivering the medication, instead of returning, the appellant led her through a path and pulled her into a bush where he sexually assaulted her twice - once without protection and then again with a condom. He gave her one dollar and asked her not to tell anyone. Upon arriving home, the complainant immediately reported the rape to Nomathemba Mathe (another juvenile) and then to her aunt Thenjiwe Mugela, who observed torn panties and semen on the complainant's clothing. The police were immediately notified and the appellant was arrested. The appellant was convicted on 10 December 2013 by the regional court sitting at Hwange of two counts of rape and sentenced to 12 years imprisonment, with 4 years suspended on condition of future good behaviour.

• Whether the trial court was correct in convicting the appellant of rape despite medical evidence showing the absence of a hymen and no signs of bleeding
• Whether the sentence of 8 years effective imprisonment (12 years with 4 suspended) was appropriate for two counts of rape of a 12-year-old child
• Whether the complainant's evidence was credible and corroborated despite the medical findings
• The application of the cautionary rule in sexual offences cases and the admissibility of complaint evidence

The appeal against sentence was dismissed. The conviction and sentence of 12 years imprisonment (with 4 years suspended on condition of future good behaviour, leaving 8 years effective imprisonment) was confirmed.

The binding legal principles established are: (1) Rape is sexual intercourse with a female person without her consent - it is not limited to sexual intercourse with a virgin; (2) The absence of a hymen is not conclusive proof of previous sexual experience and does not disprove rape; (3) Medical evidence showing no hymen or no bleeding does not override credible testimonial evidence establishing rape; (4) For complaint evidence in sexual cases to be admissible to show consistency and absence of consent, it must: (a) be made voluntarily without leading, inducing or intimidating questions, and (b) be made without undue delay at the earliest opportunity to the first person to whom the complainant could reasonably be expected to make it; (5) When an accused admits all material facts except the sexual act itself, this corroborates the complainant's version and strengthens the prosecution's case.

The court made strong obiter comments condemning those who sexually abuse children and come to court with fanciful defences, stating that "courts of law will never be fooled by such excuses but will see through the façade and administer justice without fear or favour." Mathonsi J described the appellant's defence (that he was in love with his 12-year-old cousin, that she was a prostitute, and that she was not a virgin) as "one of the most bizarre defences to confront a court of law." The court also observed that the appellant was "quite unrepentant right up to the end" and that he "takes the court for granted and does not appreciate the gravity of the offence he committed." The court characterized the original sentence of 8 years effective imprisonment as "a relatively light sentence indeed in the circumstances," suggesting that harsher sentences might be appropriate for such offences. The court noted the appeal was "the misadventure of someone who certainly does not see anything wrong with the blood curdling circumstances under which the young girl was violated and continues to fuminate even after conviction without being contrite."

This case is significant in Zimbabwean criminal law for several reasons: (1) It reinforces that the cautionary rule in sexual offences is no longer a requirement following S v Banana 2000 (1) ZLR 607 (S); (2) It clarifies the requirements for admissibility of complaint evidence in sexual offences - that complaints must be voluntary and made without undue delay to the appropriate person; (3) It establishes that rape is defined as sexual intercourse without consent, not necessarily intercourse with a virgin; (4) It confirms that medical evidence showing absence of a hymen or lack of bleeding does not disprove rape when there is credible testimony; (5) It demonstrates the court's robust approach to child sexual abuse cases and rejection of implausible defences; (6) It serves as a strong judicial statement against those who sexually abuse children and then tender fanciful defences.