The accused was initially charged with having sexual intercourse with a minor under section 70(1)(a) of the Criminal Law (Codification and Reform) Act. Midway through proceedings, the charge was altered to rape under section 65 of the Code. The state alleged that between December 2011 and October 2012, the accused had sexual intercourse with a 15-year-old complainant. The accused's defence was that he had proposed love to the complainant, she accepted, and they had consensual sexual intercourse. The accused and complainant lived in the same house. The complainant testified that she did not accept his proposal and that he raped her on several occasions (in the sitting room, bathroom, and bedroom). The matter came to light when the complainant's aunt discovered the accused sleeping on top of the complainant when the aunt woke up to go to the toilet. The aunt reported the matter to police. The complainant testified that the accused gave her money for lollipops and told her not to tell anyone, and that she was afraid of her aunt.
1. The conviction on the charge of rape as defined in section 65 of the Criminal Law (Codification and Reform) Act together with the sentence were set aside. 2. They were substituted as follows: (a) The accused was convicted of the offence of having sexual intercourse with a minor as defined in section 70(1)(a) of the Code; (b) The accused was sentenced to pay a fine of $200 or in default of payment 21 days imprisonment, which imprisonment he had already served, and he was accordingly entitled to his immediate release.
Where an accused is charged with rape but raises a defence of consent, the conviction for rape cannot stand if the accused's version that the complainant consented has not been shown to be palpably false, improbable, unreasonable or not possibly true. In such circumstances, the appropriate conviction is for the offence of having sexual intercourse with a minor under section 70(1)(a) of the Criminal Law (Codification and Reform) Act. Proof beyond reasonable doubt demands more than that a complainant be believed and the accused disbelieved - a defence succeeds wherever it appears reasonably possible that it might be true. The court must consider whether the complainant has any incentive to lie and whether the surrounding circumstances support or undermine the claim of non-consent.
The court made several observations about what questions should have been asked at trial when dealing with an unrepresented accused: why would the accused sneak into a fully occupied bedroom to commit rape; why would the complainant be raped quietly without screaming or showing resistance in a bedroom with other occupants including an adult; and whether the complainant had an incentive to deny consent after being caught by adults. The court also observed that the aunt's evidence did not add much to the state case and that it was the complainant's evidence that was crucial. The court commented that the fact the accused failed to ask certain questions in cross-examination did not render his defence improbable or untrue. The court also observed that based on sentencing trends for statutory rape, the accused did not deserve incarceration at all, noting this was the previous equivalent of what is now section 70(1)(a) of the Code.
This case is significant in Zimbabwean criminal law for: (1) Clarifying the distinction between rape and statutory rape (having sexual intercourse with a minor) and the different standards of proof required, particularly regarding the issue of consent; (2) Reinforcing the principle from S v Makanyanga that proof beyond reasonable doubt requires more than simply believing the complainant and disbelieving the accused - a defence must be considered successful if it appears reasonably possible that it might be true; (3) Establishing that where an accused's version of consensual sexual intercourse with a minor cannot be dismissed as palpably false, the appropriate conviction is for statutory rape under section 70(1)(a) rather than rape under section 65; (4) Confirming sentencing trends for statutory rape offences that non-custodial sentences (fines) are generally appropriate rather than imprisonment; and (5) Demonstrating the court's supervisory role on review to identify questions that trial courts should have asked when dealing with unrepresented accused persons.