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

1 HB 121/26 HCBCR 1181/26 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. 2 HB 121/26 HCBCR 1181/26 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 3 HB 121/26 HCBCR 1181/26 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. 4 HB 121/26 HCBCR 1181/26 [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 5 HB 121/26 HCBCR 1181/26 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. 6 HB 121/26 HCBCR 1181/26 [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. 7 HB 121/26 HCBCR 1181/26 [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. APPLICATION OF THE LAW [16] The Appellant was charged with two counts of rape, as defined in section 65(1)(a) of the Criminal Law Codification Act. The section provides as follows. “65 Rape (1) If a male person knowingly has sexual intercourse or anal sexual intercourse with a female person and, at the time of the intercourse (a) the female person has not consented to it; and (b) e knows that she has not consented to it or realises that there is a real risk or possibility that she may not have consented to it; he shall be guilty of rape and liable to imprisonment for life or any shorter period.” [17] In the present matter, what the complainant described in both counts satisfies all the elements of the offence as charged. For that reason, nothing arises from it. 8 HB 121/26 HCBCR 1181/26 Whether the complainant was a credible witness. [18] The appellant contends that he was convicted on unreliable, unbelievable and uncorroborated evidence from the complainant. I do not agree with the appellant’s submission in that regard. According to the expert witness, Ropafadzo Rachel Nyamukapa, the complainant suffers only from an intellectual disability but is able to testify in court. Despite her slow disposition, the complainant testified clearly and logically. She named her schoolmates who were with her when the appellant called her. She testified that the appellant conveniently excluded them. She narrated how she was sexually assaulted on both occasions. She had earlier made the same narration to her friends, particularly Patience Madongwe, who testified in court. She narrated the same to her maternal aunt and to Ms Nyamukapa. She added a unique detail that the appellant failed to dispute, i.e., that she was taken from a shopping centre to his house, that she pulled close to the appellant, and that the appellant accused her of telling people “their stories”. The complainant’s evidence did not stand in isolation in any event. The details given in those initial reports were materially consistent with her testimony before the court a quo. Consistency in repeating the essential allegations strengthens credibility and reduces the likelihood of fabrication. The psychiatrist also noted that the complainant repeated her story twice without variation in her office. This consistency undermines any suggestion of suggestibility or confusion. [19] The trial magistrate noted the disability, noted the delay, and still found the complainant credible. She applied the requisite caution. This Court should respect that finding. In the matter of Kereke v Maramwidze N.O. and Anor SSC86-21, it was held thus; “It is also an established principle that an appellate court is slow to interfere with the findings of credibility of the witnesses by a lower tribunal. This principle was well captured in the case of Gumbura v The State SC78/14 at p7 where the Court remarked as follows: “As regards the credibility of witnesses, the general rule is that an appellate court should ordinarily be loath to disturb findings which depend on credibility . However, as was observed in Santam BPK v Biddulph (2004) 2 All SA 23 (SCA) , a court of appeal will interfere where such findings are plainly wrong. Thus, the advantages which a trial court 9 HB 121/26 HCBCR 1181/26 enjoys should not be overemphasised. Moreover, findings of credibility must be considered in the light of proven facts and probabilities.” [20] The minor discrepancies between the complainant's statement to the police and her oral evidence in court should not be stretched any further. Counsel must be mindful that in our jurisdiction witness statements are not recorded under oath. Even if they were, they are simply summaries recorded by an officer whose listening, comprehension, and summary-writing skills may not be adequate. Worse still, such is influenced by language issues, etc. [21] The trial court was therefore correct to assess her evidence as coherent, consistent and reliable. No evidence was placed before the court a quo suggesting that these allegations are made up. In the matter of Munyaradzi Kereke v Francis Maramwidze N.O. HH 374-19, it was held that: “In my assessment, where a child is subjected to sexual abuse, a trial court ought not to nitpick and bear such scrutiny on immaterial detail with a view to cast doubt on the credibility of witness evidence. The proper approach is always to assess the merits and demerits of a witness's evidence and decide whether, as a whole, the truth has been told. In this credibility assessment, it must not be lost on a trier of fact that the witness rarely makes a report of abuse with a view to meticulously recording it for future use in a court of law. Usually a witness realises that she may be required to recall all the minute details when she is called upon to give a statement to police. Even then, that statement may be taken in vernacular and translated by another officer who may lack the opportunity to clarify certain of the testimony at the time.” [22] In casu, the court a quo did just that. The trial court was therefore correct to assess the complainant’s evidence as coherent, consistent and reliable. No evidence was placed before the 10 HB 121/26 HCBCR 1181/26 court a quo suggesting that these allegations are made up. I see no misdirection on the part of the learned trial magistrate. [23] The complainant’s evidence was evaluated in light of all other evidence. The court found her account consistent. This led to the conclusion that she was a credible witness and that her testimony was truthful in all material respects. No material misdirection in that assessment has been demonstrated. Accordingly, the conviction founded substantially on her testimony cannot be faulted at law. The 1 st and 3rd grounds of appeal therefore lack merit and fall to be dismissed. B. Whether or not the court aquo correctly rejected the defence of impossibility. [24] The appellant argues that the staffroom was too busy for the rape to have occurred. In this regard, I accept Mr Guveya’s contention that, as a matter of law, Section 261 of the Criminal Law Code applies to omission offences — not to rape. The appellant cannot invoke it as a legal defence. Section 261(1) begins: “Where a person is accused of a crime of which an essential element consists of a failure, omission or refusal to do anything...” Rape is a positive act, not an omission. Secondly, section 261(2) explicitly states that “ the fact that it is extremely difficult for a person to do a thing shall not constitute impossibility.” [25] Even if the staffroom were busy, that shows difficulty – not impossibility. Thirdly, the defence witnesses gave evidence that the staffroom was generally busy. However, they could not say that it was occupied at the specific, unknown time of the alleged rape. The complainant gave evidence that the room was empty when the appellant locked the door. The trial magistrate was entitled to accept the complainant’s account. She correctly observed; “We all know that having sex does not require a lot of time... A chance may just present itself.” 11 HB 121/26 HCBCR 1181/26 [26] It is also worth noting that the complainant testified that the staff room has curtains, which the Appellant drew. The Appellant never challenged this evidence. I am of the view, therefore, that the learned magistrate committed no misdirection in rejecting the Appellant’s defence. The Appellant’s second ground of appeal also lacks merit and must be dismissed. C. Whether the sentence imposed on the Appellant on both counts is so severe as to induce a sense of shock? [27] The trial court properly exercised its discretion in weighing aggravating and mitigating circumstances. The sentence imposed was within the range imposed in similar cases. A sentence is excessive if it is considerably lengthier than the usual sentences imposed by the courts for a similar offence. (See the High Court matter of Kereke v Maramwidze supra where it was held that; “In an appeal against sentence, the test is whether the sentencing court, in the exercise of its sentencing discretion, erred or misdirected itself by taking into account irrelevant issues or failing to pay due regard to those issues it was obliged to consider. Such matters may take the form of exceeding the sentencing jurisdiction, omitting a statutorily provided step and so on. (my own underlining for emphasis) I did not hear counsel for the appellant argue that any of the above errors had been committed in the present matter.” [28] In the present matter, the appellant does not point to any specific error committed by the trial magistrate. He generally argues that the sentence imposed on the Appellant is harsh and that the trial court failed to consider other sentencing options, without suggesting which. Section 65 of the Code clearly provides for a sentence of up to life imprisonment or any other shorter term of imprisonment. The trial magistrate carefully weighed the mitigating circumstances, particularly that the appellant was a first offender at the age of 63. He had previously served the school for many years without blemish and was close to his retirement. He also lost his job as a result of this matter. However, she took into account as aggravating the fact that the Appellant acted in loco parentis. He knew of the complainant's vulnerability as his student with special needs. Further, he groomed the 12 HB 121/26 HCBCR 1181/26 complainant before committing the offence by sending her on errands, driving her in his car and taking her to his home. The court also took into account the presumptive sentence provided for in the Sentencing Guidelines and imposed on each count a sentence consistent with the relevant statutory provision. No specific fault is identified by the appellant. This cannot warrant interference with the trial court's sentencing discretion by this court. The appeal against sentence is therefore without merit and is accordingly dismissed. The appeal therefore lacks merit in its entirety and is accordingly dismissed. Dube J…………………………………. Ndlovu J : ……………………………I Agree M.C Mukome, appellant’s legal practitioners National Prosecuting Authority, state’s legal practitioners