The State v Sipho Moyo

### Preamble
1
HB 177/19
HCAR 1079/18
---------


THE STATE

Versus

SIPHO MOYO

IN THE HIGH COURT OF ZIMBABWE

TAKUVA J

BULAWAYO 21 NOVEMBER 2019

Criminal Review

TAKUVA J:	The accused appeared before a Regional Magistrate at Bulawayo charged with having extra-marital sexual intercourse with a young person in contravention of section 7O(1)(a) of the Criminal Law Codification and Reform Act (Chapter 9:23).  The age of the complainant was stated in the charge sheet to be 15 years but no evidence of her age was led.  On his part, the accused pleaded guilty but denied knowing the complainant’s age.  He was convicted and sentenced to 15 months imprisonment of which 5 months imprisonment was suspended for 5 years on condition the accused does not during this period commit any offence involving contravening s70(1) of the Code.  The remaining 10 months imprisonment was suspended on condition accused person completes 350 hours of community service at Mateme Zimbabwe Republic Police Nkayi.

When the matter was placed before me on automatic review, I queried how complainant’s age was ascertained.  The Regional Magistrate conceded that the age of the complainant was not properly investigated.

The record of proceedings shows a brief exchange between the court and the prosecutor on this issue.  The result was that the information supplied to the court was patently inconclusive and inaccurate.  Instead of ordering a detailed examination of the complainant’s age, the court proceeded without exercising due diligence to finalise the matter.  This was a gross misdirection.

In S v Dube 2010 (2) ZLR 100 (H) it was held inter alia that” it is critical to determine the exact age of the complainant in cases involving the sexual abuse of children.  This derives from the provisions of the Code which give rise to varying types of charges and the penalties to be meted out.  It was therefore necessary to ascertain the age by means of her birth certificate or from medical evidence as to her probable age if the date of birth was not known”.

In casu, none of the above was done and the same applies to the age of the accused which was just given as 20 years without any proof whatsoever.  There are other unsatisfactory features in this case.  The first is that in the state outline it is stated that the “accused and the complainant are brother and sister respectively” but in answer to a question the accused said he was not aware of the complainant’s age.  This is strange.  Secondly, the court proceeded to treat the accused’s “sister” as his “girlfriend”.  Thirdly, the accused had extra-marital sexual intercourse with the complainant on two occasions, impregnating her in the process.  Surely on these facts, even accepting that the accused was 20 years old, community service would have been woefully lenient.

Be that as it may, the glaring miscarriage of justice occurred when the accused was permitted to get away without being charged with rape as there was a real possibility that the complainant could have been under the age of 12 years.  In such cases where the state will be in sixies and sevens as regards the complainant’s age, it is the duty of the magistrate to stamp his/her authority and order that dental examination be carried out before proceeding any further.  This is absolutely critical in view of the provisions of sections 70(1)(a), 64(1), 64(2) and 70(4) of the Criminal Law Codification and Reform Act, Chapter 9:23.

The accused must have completed performing 350 hours within 8 weeks from the 9th of July 2018.  Consequently, he has served his sentence. There is nothing more that can be done to rectify the anomaly.

For these reasons, I decline to certify the proceedings as being in accordance with real and substantial justice.  Therefore, I withhold my certificate.

This judgment must be served on the Chief Magistrate and the Prosecutor General.