Memory Sigabade, a female adult, was employed as a maid at the complainant's residence, where she took care of the 14-year-old complainant and two other young boys. They shared a bedroom hut, with the accused sleeping on one end and the three boys on the other. On 1 February 2015, the accused allegedly forced the complainant to have sexual intercourse with her. The offence came to light when the complainant fell ill, experienced pain in his groin area, and had difficulties walking. After persistent probing by teachers, the complainant eventually revealed the alleged sexual abuse to a nurse. The accused was charged with aggravated indecent assault in violation of section 66(b)(i) of the Criminal Law (Codification and Reform) Act. The accused's defence was that she had been beating the complainant to discourage him from a relationship with a girl named Nonoza, who was involved with someone on Anti-Retroviral Treatment. The trial court convicted and sentenced her to 13 years imprisonment (5 years suspended).
The accused's conviction and sentence were set aside. The accused was found not guilty and acquitted.
In sexual offences cases, a complaint must be made voluntarily and at the earliest opportunity to be admissible and credible. Where a complaint is only elicited after persistent probing and leading questions from third parties, and where the complainant initially lies about the incident, such evidence lacks the voluntariness required by law and must be treated with extreme caution. The failure by the prosecution to call the first person to whom a complaint was allegedly made is a serious deficiency that can render a conviction unsafe. A trial court may not invoke section 232 of the Criminal Procedure and Evidence Act to call witnesses to bolster a weak prosecution case, but only for purposes of clarification. Where an accused provides an explanation, even if improbable, a court is not entitled to convict unless satisfied beyond reasonable doubt that the explanation is false (applying R v Difford). A trial court must properly consider and address an accused's defence in its judgment and cannot ignore evidence of bad blood or motive to lie when assessing credibility.
Bere J made several important observations: (1) That a complainant who finds himself in an uncomfortable situation and is constantly probed to open up and does so with reluctance is a potentially dangerous witness, and the trier of fact must not hide behind demeanour in assessing such witness's credibility; (2) That it is difficult to imagine what else a self-represented accused person could do to demonstrate innocence when she has put her case precisely and pointedly to witnesses; (3) That the court expressed concern about the lack of explanation on record as to why the additional witness was called under section 232, noting this demonstrated a lack of confidence in the state case by the trial magistrate. The judge also emphasized that a witness must earn credibility by volunteering evidence at the first opportunity, and that evidence must be voluntarily given and not as a result of begging.
This case reinforces critical principles regarding the admissibility and evaluation of complaints in sexual offences cases in Zimbabwe. It emphasizes that courts must strictly apply the S v Banana principles requiring complaints to be made voluntarily and at the earliest opportunity. The judgment serves as an important reminder that: (1) complaints obtained through persistent probing and leading questions lack the requisite voluntariness; (2) failure to call the first person to whom a complaint was made can be fatal to the prosecution's case; (3) section 232 of the Criminal Procedure and Evidence Act should not be used to shore up a weak prosecution case; (4) trial courts must properly analyze and address an accused's defence in their judgments; (5) the R v Difford principle must be strictly applied - an improbable explanation does not justify conviction unless the court is satisfied beyond reasonable doubt that it is false; and (6) courts must carefully assess credibility where there is evidence of bad blood or motive to lie. The case demonstrates the High Court's vigilant review function in protecting accused persons from unsafe convictions, particularly where self-represented accused persons may not fully appreciate legal technicalities.