Mutero v S (HCBCR 1181/26) [2026] ZWBHC 116 (2 September 2026)

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CLEVER MUTERO Versus THE STATE

IN THE HIGH COURT OF ZIMBABWE NDLOVU & MPOKISENG DUBE JJ BULAWAYO 21 MAY 2026 & 02 SEPTEMBER 2026

Criminal appeal T.Siphuma for the applicant K.M Guveya for the respondent

MPOKISENG DUBE J: This is an appeal against both the conviction and the sentence imposed by the Regional Magistrate’s Court at Kwekwe for 2 counts of contravening section 65(1) (a) of the CRIMINAL LAW (CODIFICATION AND REFORM) ACT [Chapter 9:23] [the CODE], which is Rape. The Appellant, who was represented, was convicted and sentenced to 18 years' imprisonment for each count, with the sentences to run concurrently, so he would effectively serve 18 years' imprisonment. Dissatisfied with both the conviction and the sentence, he noted an appeal to this Court on the following grounds.

Grounds of Appeal

“AD CONVICTION

1. The court a quo grossly erred by relying on the evidence of the complainant, which was grossly unreliable and unbelievable; the state witnesses did not corroborate the evidence of the complainant, critically that of Senior Teacher Madam Madamba, whom the complainant alleged had told her about the alleged two rape incidents.

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2. The learned Magistrate grossly erred and misdirected herself by disregarding the evidence of the defence witness that rape could not have happened in the staffroom as it is always busy with staff and students wanting to access internet connectivity.

3. The learned Magistrate erred and grossly misdirected herself by proceeding to convict the Appellant on evidence plagued with some gross inconsistencies. The court had to be satisfied that the evidence led by the state proved beyond reasonable doubt that the appellant raped the complainant.

4. AD SENTENCE The Learned Magistrate erred and grossly misdirected herself by failure to consider other forms of sentence.

5. That the sentence imposed by the learned magistrate amounts to manifestly too excessive and so unreasonable as to induce a sense of shock. WHEREFORE the appellant prays for:

1. That the conviction be quashed and the appellant be accordingly found not guilty and acquitted. Or alternatively in the event that the conviction is upheld which is very unlikely, the Appellant prays that he be the Appellant prays that the sentence be reduced to seven (7) years imprisonment.

Factual Background

[1] The record reflects that the complainant was a minor aged 13 attending a primary school in Redcliff at the material time. The Appellant, then aged 62, was a teacher at the same school, teaching a special class, i.e., students with learning disabilities. The appellant was arraigned before the court a quo facing 2 counts of Rape in contravention of sec 65(1)(a) of The Code. It was alleged

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firstly that on a date unknown to the prosecution but during the first term of 2024 and in a classroom at the School in Redcliff, the appellant unlawfully and intentionally had unprotected sexual intercourse with the complainant once without her consent, knowing that she had not consented to it or realising that there was a real risk or possibility that she might not have consented to it. It is alleged that, on this count, the complainant called the complainant, who was playing on the school grounds during lunchtime, and told her to get into the classroom. Whilst in the classroom, the appellant instructed the complainant to bend forward whilst holding a desk; he then lifted her uniform dress and removed her underpants. It is alleged the appellant lowered his trousers and inserted his erect penis into the complainant’s vagina and had unprotected sex once without her consent. It is alleged that after the incident, the Appellant left the classroom, leaving the complainant behind, who then dressed herself up properly and went out. Outside, she met a female teacher named Ms Flata Madamba, whom she told about the rape. This teacher told her that she would advise the headmaster.

[2] Regarding the second count, it is alleged that on a date unknown to the prosecutor but in term 3 of the year 2025, and in a staffroom at the Primary School, the appellant had unprotected sexual intercourse with the complainant without her consent, knowing she had not consented to it or realising that there was a real risk or possibility that she might not have consented to it. It being alleged that the appellant called the complainant into the staffroom after she had finished writing one of her Grade 7 examination papers. The appellant allegedly instructed the complainant once again to bend while holding the desk, as in the first count, he raised her uniform dress and lowered her underpants. The appellant allegedly lowered his trousers, inserted his erect penis into the complainant’s vagina, and engaged in unprotected sexual intercourse without her consent. It's alleged that after the rape, the complainant went outside, where she told her friend, one Patience Mandongwe, who then accompanied her to the teacher, Ms Madamba, whom they told about the rape, and in turn she advised them that she was going to advise the headmaster.

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[3] It is further alleged that later the complainant developed some vaginal thrush and was questioned by her mother (who, during evidence, turned out to be her maternal aunt). At that time, she informed her mother that the appellant had raped her. The complainant was taken to Kwekwe General Hospital where she was treated. She was medically examined, and a report was compiled revealing that she had a ruptured hymen and that penetration was definite. The report is part of the record aquo, as she was admitted by consent. PROCEEDINGS IN THE COURT A QUO

[4] At trial, the complainant gave evidence and described both incidents in detail. She could not recall the dates. She maintained that during the first incident, the appellant, whom she knew as her former Grade 5 teacher, called her into a staff room while she was with one Noku. The appellant chased away Noku and dragged her into a staff room. He made her bend forward and inserted his urinating thing into her “buttocks”. After the incident, she dressed and went to inform Ms Madamba, who told her not to inform anyone and promised to resolve the issue.

[5] She stated that, prior to that, the Appellant met her at Torwood Shopping Centre and sent her to buy him drinks. He told her to leave the drinks in his vehicle, parked by the roadside. He forced her into his vehicle and drove to his house. He ordered the complainant not to remain in his car, saying she would steal. This forced her to enter his house. He took her to an empty room, where he pulled her to himself and showed her “litter.” When asked where the litter was, she replied, “It was outside.” After that episode, he ordered her to walk back home on her own.

[6] This testimony of being taken to the house and shown a 'heap of rubbish' or ‘litter’ was narrated to Ms Madamba, who also confirmed it in court when she later testified. Ms Madamba introduced new detail to the effect that she was also informed by the complainant that the appellant's house was in fact in Q-Section. It was repeated to the complainant's aunt and to the psychiatrist. I note that throughout the trial no one bothered to seek clarity from the complainant on what she meant by being shown “a heap of rubbish /litter or dirt” at Appellant’s house. May I mention obiter dicta that when dealing with child witnesses, judicial officers must be attentive

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enough to seek clarity when hearing testimony of such witnesses, as they may use ordinary words to describe uncomfortable situations or objects that seem vulgar or disrespectful to them.

[7] In this matter, it is not understandable why Appellant would take a minor child from a shopping mall without her guardian’s consent, take her to his house, put her in an empty room, pull her towards himself and show her “litter”, and thereafter order her to walk back home on her own.

[8] It is worth noting, however, that despite the defence's protestations when the complainant narrated this part, the Appellant never denied it during cross-examination. It was never put to the complainant that the incident never happened or that it was a fabrication. She was simply called a pathological liar, as were all other witnesses who testified in this matter. May I also state that it is not for counsel to call witnesses liars without demonstrating to the court how they lied. Worse still, calling them pathological liars without proving to the court the history or chronology of their lies. In this case, in fact, there is no evidence that any of the witnesses had a history of telling lies.

[9] On the second count, the complainant again described how the Appellant dragged her into the staff room after chasing away her playmate, Patience. He locked the door behind him and closed the curtains. He pulled her underpants down to her ankles. He lowered his trousers and underwear halfway and repeated the same act as in count 1, but this time during term 3, when they were writing examinations. She explained that when she got out, she met her friends, whom she reported to, and they advised her to go report to Ms Madamba. She went with them to make the report. Ms Madamba told her not to tell anyone, as it would be dealt with after the examinations. When the Public Prosecutor asked whether, after this incident, she had seen the Appellant, she confirmed it. She stated that she used to meet him at school, and he questioned her about why she was telling people “their stories”. Appellant's counsel did not challenge or deny this part.

[10] This witness stood firm under cross-examination. She explained that although her police statement said she was sexually abused in the classroom, her evidence in court was that it was in the staffroom, which doubles as a classroom. Her evidence remained unshaken.

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[11] Ms Madamba later corroborated that she was in the special class, that Appellant was her Grade 5 & 6 teacher, and that the staff room doubles as a classroom. She confirmed receiving a report from the complainant and her friends, albeit only once. She also confirmed having escalated the matter to the deputy head. Although this witness denies receiving a report naming Appellant as the culprit, she confirms receiving a sexual abuse report. Although this witness (Ms Madamba) was called by the State, I am mindful that the State's outline already says she failed to act on the report when she received it. It is therefore no surprise if she does not play her cards openly with the same State that called her.

[12] The state called Charity Mapenya. Although the complainant referred to her as her mother, she is in fact her maternal aunt, as her biological mother has passed away. She confirmed receipt of a report from the complainant alleging sexual assault. She corroborates the complainant’s account that the Appellant was named as the assailant. Despite her persistent inquiry, she is not shown to have suggested the Appellant’s name to the complainant. She was not shown to have any motive to falsely incriminate the Appellant. If anything, this witness stated that she pleaded with the complainant to tell the truth.

[13] The state called an expert witness, Ropafadzo Rachel Nyamukapa, a psychiatrist. She testified that, based on her interview with the complainant, she concluded that the complainant has an intellectual disability. She explained that the complainant presented as slow and shy. Moreover, her close family reported that she has episodes in which she speaks to herself. This witness found that the complainant can testify in court, provided it is conducted in a victim-friendly environment. In other words, this means she can comprehend and narrate events from memory. The sum total of her testimony is that her intellect is diminished only, but otherwise she is a competent witness.

[14] The last witness for the state was Patience Madongwe, who testified that she is a former student at the same school as the complainant. They lived in the same neighbourhood as the complainant. At times, they walked together to and from school. She testified that the complainant told her that the appellant put his “don’t touch” into her “don’t touch”. She stated that by her “don’t touch” she referred to her vagina, while his “don’t touch” is a penis.

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[15] The Appellant was put on his defence. He disputed the allegations in their entirety and maintained his innocence. His defence was one of impossibility. He stated that he could not have raped the complainant, as there was no opportunity to do so at school as alleged. He called a witness to support this defence of impossibility.

PROCEEDINGS BEFORE THIS COURT Issues for determination

1. Whether the complainant was a credible witness.

2. Whether her evidence was corroborated.

3. Whether or not the court a quo ought to have accepted the defence of impossibility.