Tendai Rupapa Senior Court Reporter
A Harare man who was accused of raping his housemate’s wife who responded thinking it was her husband, was acquitted of rape but the magistrate found him guilty of indecent assault.
For the offence, Nkosilathi Sibanda (27) was fined $300. In his ruling after a full trial, regional magistrate Mr Hoseah Mujaya said the fact remains that Sibanda caressed and kissed the woman, a claim which he did not deny, arguing that it was by consent.
Mr Mujaya further said the woman’s testimony of events leading to the alleged rape was unbelievable. The State was alleging that Sibanda tiptoed from his bedroom while naked in the wee hours and got into the woman’s blankets, caressed and kissed his victim before raping her.
On the other hand, Sibanda — through his lawyer Mr Tapiwa Makanza— denied having sexual intercourse with the woman, saying they only caressed with her consent and she stopped him before they could be intimate.
The woman said she became aware that it was not her husband when Sibanda penetrated her, adding that his manhood was different from that of her husband but Sibanda argued that the woman fabricated the rape charges to save her marriage.
Mr Mujaya ruled that the woman’s behaviour contributed to Sibanda’s actions after she confirmed that she was tipsy on the night.
During trial, audio recordings were played in court in which the woman was heard crying while making phone calls to her relatives informing them of how Sibanda had fondled her in the dark without her consent. The woman’s housemate, identified as Miriam, recorded the conversations and in the clips, the woman did not mention being raped.
The magistrate said the woman’s version of events, contradicted with what was contained in the audio clips.
Sibanda’s lawyer, during trial, asked the woman why she had left her bedroom door open and she responded saying she thought her husband would be home anytime.
Sibanda crushed the woman’s submission saying it was her (the woman) who actually called him to her bedroom saying she was “horny” since the pair had “something” going on and they kissed and fondled.
It emerged during trial that the woman’s husband did not have keys to the house and Sibanda’s lawyer’s questioned why then did the woman thought it was her husband in the blankets when she had not opened the main door for him.
The pair’s housemate Miriam, who came to court in defence of Sibanda, told the court that she did not believe the woman’s story.
Miriam said when the woman narrated to her what had transpired, she asked her if Sibanda had raped her and she said he had not.
The magistrate said, “Miriam’s testimony suggested that the pair had an affair. The prosecution dropped her as a State witness probably after they had seen that she was not backing their case,” he said.