Tawanda Nyamande v The State

The appellant was charged with aggravated indecent assault as defined in s 66(1)(a) of the Criminal Law (Codification and Reform) Act. The complainant was the appellant's daughter from a previous relationship. The State alleged that on 14 October 2019, the appellant entered the complainant's bedroom, fondled her and inserted his fingers into her vagina. The complainant reported the incident to her church pastor, Nyasha Mubika. On the morning she made the report, she stole US$50 from the appellant's pocket. The complainant had a history of stealing money and items from the family home and sleeping away from home without parental consent, for which she had been previously disciplined by the appellant. The complainant stated she did not really intend to make a police report but was prepared to accept an apology. The medical report showed no visible evidence of penetration and the hymen was intact. The pastor testified that the complainant mentioned fondling of breasts and caressing but had no recollection of her mentioning digital penetration. There was evidence that the complainant first reported to an unidentified male adult who accompanied her to the pastor, but this person was not called as a witness.

• Whether the complainant's evidence was credible given her character and relationship with the appellant
• Whether the actus reus of aggravated indecent assault (digital penetration) was proved beyond reasonable doubt
• Whether there was sufficient corroboration of the complainant's evidence in the absence of physical evidence
• Whether the failure to call a material witness (the first person to whom the report was made) weakened the State's case
• Whether the conviction was safe in light of the totality of the evidence

The appeal succeeded. The conviction by the Magistrates Court was set aside and substituted with an order that the accused be found not guilty and acquitted.

In a criminal case of aggravated indecent assault where the complainant's credibility is challenged by evidence of her character, conduct and relationship with the accused, and where the medical evidence contradicts the alleged penetration, the actus reus must be proved beyond reasonable doubt and requires corroboration. A conviction cannot stand where: (1) the complainant's credibility is seriously undermined by her conduct (including theft and inconsistent explanations) and statements inconsistent with having been violated; (2) medical evidence shows no physical signs of the alleged penetration; (3) corroborating witnesses do not recall the complainant mentioning the key element of the offence (penetration); and (4) the State fails to call a material witness without explanation. Such a conviction is unsafe and must be set aside.

The court observed that the complainant's sensitivity to the relationship between her parents was evident from her mention of the fact that the appellant had not paid lobola for her, which was a bone of contention between the appellant and the complainant's mother. This suggested the possibility that the mother might have influenced the complainant to make the allegations. The court also noted that it was significant that despite a police station being close by, the complainant in the company of the male adult chose to go to the pastor instead - an issue that ought to have been interrogated by the trial court.

This case illustrates the strict standard of proof required in sexual offence cases in Zimbabwean criminal law, particularly where: (1) the credibility of the complainant is undermined by her conduct and relationship with the accused; (2) medical evidence contradicts the alleged assault; (3) the actus reus of the offence is not proved beyond reasonable doubt; and (4) there is an unexplained failure to call material witnesses. The case emphasizes that courts must carefully scrutinize the evidence in sexual offence cases and cannot convict solely on the complainant's testimony where there are significant credibility issues and no corroboration, even in cases involving allegations against a parent. It reinforces the principle that where versions are mutually destructive, credibility must be assessed against all the evidence, not just the promptness of reporting.