The State v Brian Tshuma

### Preamble
1HB 243/22
HCAR 2132/21
CRB MPH 202/21
---------


THE STATE

Versus

BRIAN TSHUMA

IN THE HIGH COURT OF ZIMBABWE

TAKUVA J

BULAWAYO 29 AUGUST 2022

Review Judgment

TAKUVA J:	The accused, a 17 year old boy appeared before a magistrate at Mphoengs charged with contravening section 70 of the Criminal Law (Codification and Reform) Act Chapter 09:23 in that during the period extending from January 2021 to September 2021 and at Makuzeze Village, Brian Tshuma unlawfully had extra-marital sexual intercourse several times with Divinity Ncube, a female juvenile aged 14 years.

The facts are that the accused and the complainant live in the same village in Mphoengs.  Sometime in September 2020 the two fell in love and engaged in sexual intercourse several times with the complainant’s consent.  The accused’s luck ran out when complainant’s mother, one Tabeth Kufakwevanhu discovered that the complainant was pregnant and reported the matter to the police leading to the accused’s arrest.

Upon being brought before a magistrate, the accused pleaded guilty and the matter proceeded in terms of section 271 (2) (b) of the Criminal Procedure & Evidence Act Chapter 9:07.  The accused who was a 1st offender was found guilty as charged and sentenced as follows;

“To receive moderate correction of 6 strokes with a rattan cane to be administered in private at Plumtree Prison by a designated prison officer.”

The accused was sentenced on 27 October 2021 and the record was received by the Registrar of this court on 4 November 2021.  What is shocking is that the Constitutional Court ruled six years ago that corporal punishment is unconstitutional – see S v Willard Chokuramba CCC-29-15 where MALABA DCJ (as he then was) held that:

“1.	The order of the court a quo declaring section 363 of the Criminal Procedure and Evidence Act (Chapter 9:09) to be invalid for the reason that it is in contravention of section 53 of the Constitution is confirmed.

2.	…

3.	With effect from 03 April 2019 no male juvenile convicted of any offence shall be sentenced to receive moderate corporal punishment.  The prohibition shall apply to sentences to receive moderate corporal punishment that have already been imposed and are awaiting execution.”

Although section 353 has not yet been repealed in terms of the doctrine of stare decisis, the trial court is firmly bound by the Constitutional Court decision.

Accordingly this sentence being unconstitutional is incompetent.

In the circumstances, the sentence is hereby set aside and substituted with the following:

Accused is discharged with a warning and a reprimand in terms of s358 (2) (d) of the Criminal Procedure and Evidence Act (Chapter 7:09.

Makonese J ……………………. I agree