Reason Chakumhara v The State

The appellant was charged with two counts of rape under s 65 of the Criminal Law [Codification and Reform] Act. The State alleged that in March 2010, at New Tafara area Harare, the appellant had forceable carnal knowledge of Tinotenda Mazana, a 13-year-old girl, on two separate occasions. The appellant denied both offences. He was convicted of one count of rape and sentenced to 15 years imprisonment, with 5 years suspended on condition of good behaviour, resulting in an effective 10 years imprisonment. The appellant appealed against both conviction and sentence. Significant inconsistencies emerged in the evidence: the complainant testified she was raped once, contradicting the charge sheet and her initial report to police stating two occasions; there were contradictions between the complainant's and witness Tatenda Kachingwe's accounts regarding when the rape was first reported; and the complainant only admitted to the rape after being physically assaulted by her mother following five denials. An old woman had examined the complainant using unorthodox means (inserting a finger into her vagina) before the medical examination.

• Whether the complainant's evidence was credible given material inconsistencies and contradictions
• Whether the complainant's complaint met the requirements for admissibility in sexual assault cases, particularly whether it was voluntarily made
• Whether the State proved the appellant's guilt beyond reasonable doubt
• Whether the trial court erred in reversing the burden of proof by requiring the appellant to prove his innocence

1. The conviction of the appellant was quashed and the sentence set aside. 2. The appellant was found not guilty and acquitted of the charge.

In cases of sexual assault, the complainant's version of evidence must be believed before any corroborative evidence is sought. Where the complainant's story is fraught with inconsistencies and/or contradictions either with itself or with the testimony of other witnesses for the prosecution, the story cannot form a safe basis for conviction. For a complaint in sexual assault cases to be admissible, it must have been voluntarily made and not as a result of questions of a leading, inducing or intimidating nature, and not through physical force (applying S v Banana 2000 (1) ZLR 607). The burden of proof in criminal cases lies on the State to prove the guilt of an accused person beyond reasonable doubt; courts must not reverse this onus by requiring the accused to prove innocence. Where reasonable doubt exists as to material facts (such as the source of physical evidence), such doubt must be interpreted in favour of the accused.

The court observed that the trial court had spent considerable time repeating the evidence of witnesses and then drew "far-fetched inferences which had little, or no, bearing at all on what it was called upon to decide." The court noted that where a court mero motu (of its own accord) alters the known and accepted rule of procedural law and places the burden on the accused, "that court opens itself to unnecessary attack which it will find difficult, if not impossible, to avoid." The court also commented that proceeding with a case based on inconsistent complainant evidence would be "akin to a situation where the state is inviting the court and the defence to, as it were, accompany it on a fishing expedition."

This case is significant in Zimbabwean criminal law for reaffirming critical principles of evidence and procedure in sexual assault cases: (1) it reinforces that the complainant's evidence must be credible and consistent before corroborative evidence is considered; (2) it applies the S v Banana test for admissibility of complaints in sexual assault cases, emphasizing that complaints must be voluntary and not obtained through leading questions, inducement, intimidation, or physical force; (3) it strongly reaffirms the fundamental principle that the burden of proof remains on the State to prove guilt beyond reasonable doubt and that courts must not reverse this onus; (4) it demonstrates that where material inconsistencies exist in the complainant's evidence that cannot be reconciled, a conviction cannot be safe; and (5) it shows that contamination of evidence (such as through unorthodox examinations before medical examination) can create reasonable doubt. The case serves as an important reminder of the proper procedural safeguards that must be observed even in serious sexual offence cases.