THE State V Moffat Mavasa

### Preamble
HH 13-2010
CRB R46/06
THE STATE
versus
MOFFAT MAVASA
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THE STATE
versus
MOFFAT MAVASA

HIGH COURT OF ZIMBABWE
MAKARAU JP
Harare 20 January 2010

CRIMINAL REVIEW

MAKARAU JP: The accused appeared before the Magistrates’ Court facing one count of contravening section 65 (a) the Criminal Law (Codification and Reform) Act, [Chapter 9.23]. He pleaded guilty to the charge and was duly convicted. He was sentenced to twelve years imprisonment, with three years suspended for five years on conditions of good behaviour.

The facts giving rise to the charge and conviction may be summarized as follows.

The accused and the complainant are brother and sister respectively. At the time of the offence, the accused was aged sixteen whilst his sister, the complainant was aged twelve.

It would appear that during the day of the 27th May 2006, the accused person went for a beer drink with his parents. Upon his return to the residence, he found the complainant and a younger brother alone. The two ran away when the accused arrived as they were afraid. Presumably they mistook him for an intruder.

The complainant and the accused’s young brother prepared their respective sleeping places in their mother’s room. The accused joined them and insisted on sleeping in the same room with them. He then spread his own blankets in between the two and they all proceeded to sleep. Later during the night, the accused crept into the complainant’s blanket and forcefully removed her short. He then inserted his penis into the complainant’s vagina and she resisted him and pushed him away. He did not persist with this conduct.

The medical affidavit adduced into evidence did not reveal any evidence of penetration. No tests of any sexual transmitted diseases were done on the complainant.


The conviction of the accused is proper and raises no issues. The trial magistrate correctly noted that the facts of the matter constituted an offence as the accused inserted his penis into the complainant’s vagina who removed it when she pushed the accused away. There was legal penetration even though such penetration could not be medically detected when the complainant was examined some three days later.

In this regard, the words of the accused person when entering a plea to the charge are in my view telling. This is what he had to say:

“I forced her but I did not have sexual intercourse with her. I inserted my penis and she removed it.”

It is the sentence that was imposed upon the accused person that has exercised my mind in this matter.

Two issues arise.

Firstly, the record indicates that the trial magistrate took long in sentencing the accused as he was waiting for a probation officer’s report. The report never came and in the end, the trial magistrate had to proceed to assess sentence without the report. In doing so, he observed that there was an acute shortage of staff at the Social Welfare Department. He presumably could not continue waiting for a report that was not forthcoming. This situation must face a number of magistrates across the country who have to come up with sentencing options for juvenile offenders. The issue that then presents itself to me is the challenges that face the courts in handling matters of juvenile offenders in the absence of the requisite support structures to inform them on how to manage such offenders.

The Criminal Procedure and Evidence Act [Chapter 9.07] has a number of sections that specifically provide for how the courts should deal with juvenile offenders and juvenile witnesses appearing before them. It is the age old practice of our courts to treat juveniles differently from adults. Section 351 of the Act deals specifically and in detail with how convicted juveniles should be handled. The import of the section is to give discretion to the court convicting a juvenile on the options available for the management of the young person.

It is also clear from the section that there must be close liaison between the courts convicting the juvenile and the Ministry responsible for Social welfare where training institutions or reform schools where convicted offenders may be referred to. Such liaison appears to have died down with the passage of time leaving trial magistrates with no options but to sentence juvenile offenders to imprisonment as occurred in this matter.


In casu, it would appear that the trial magistrate did not make the necessary inquiries with the relevant ministry presumably because he felt that there would be no response as he had failed to obtain a probation officer’s report in the first instance.

It would appear to me that there is urgent need for this liaison to be resuscitated if the management of juvenile offenders is to be done in accordance with the law and for the rehabilitation of young offenders.

In addition to the statutory provisions I have cited above, there is a long line of decided cases in this jurisdiction discussing the manner in which convicted juveniles are to be treated. Our laws and procedures have for long recognized that it is wrong to sentence juvenile offenders as if one is dealing with an adult offender. The thrust of the criminal justice delivery system in sentencing adults is to punish them for their wrongdoing whilst in dealing with juveniles, the thrust is to reform them.\(^1\) A court should thus be exceedingly slow to expose a convicted juvenile to the same rigours of punishment which it will impose on an adult for the purposes served by the sentences are different.

In \(S \vee Tenda\) and Another \(^2\) Gillespie J admirably in my view, discusses the management of juvenile offenders instead of the punishment or sentencing of such offenders. The use of such language, which is deliberate, highlights the differences in approach that a court should take when dealing with juvenile offenders as opposed to adult offenders.

In that case, Gillespie J discusses the importance of a probation officer’s report in assisting the court in coming up with the most apt management scheme for each child that is found to be in conflict with the law. He further discusses the need to involve the family of the child which he holds to be just as important as the probation officer’s report for the formulation of a management scheme for the juvenile. Thus where the child has a stable family environment and there are responsible members of the family who are willing and capable of taking responsibility for the rehabilitation of the minor, such a minor should be given a chance to rehabilitate under the supervision of such family members.

The issue that has presented itself to me is that even in the absence of probation officers and probation officers’ reports, a trial court handling the matter of a juvenile may be innovative and seek to involve the family of the juvenile before coming up with a management scheme or sentence. To simply proceed without both the probation officer’s report and involvement of the juvenile’s family is in my view akin to proceeding in complete darkness.

\(^1\) See \(S \vee Zaranyika \& Ors 1995 (1) ZLR 270 (HC)\).

\(^2\) 1998 (2) ZLR 423 (HC).


Thus, while the trial magistrate is to be commended for having waited for the probation officer’s report, which was never availed, I would venture to suggest that trial magistrates in similar positions should be innovative and seek to gain an insight into the circumstances of the juvenile before them from other reliable sources such as the school, family or community of the accused. A little bit of light is always better than no light at all in my view.

Secondly, it appears to me that the trial magistrate *in casu* treated the accused as an adult offender even though he noted in his reasons for sentence that the accused is a juvenile offender. The sentence he imposed clearly falls within the range of sentences ordinarily imposed upon adult offenders.

It is common cause that the accused had unlawful sexual intercourse with his sister and that this constitutes an aggravating feature of the matter. However, this alone would not strip the accused of his status as a juvenile offender.

In *S v Zaranyika & Ors* 1995 (1) ZLR 270 (HC) Bartlett J laid down a guideline to assist magistrates in assessing sentences for juvenile sexual offenders.

He had this to say:

“I would finally emphasise that it is hoped that this judgment will provide a guideline to assist regional magistrates in the difficult task of assessing sentence in rape matters where the accused is aged 17 or 18 (and to a somewhat lesser extent where the accused is aged 19). It is not suggested or intended that the approach laid down should be regarded as being engraved in stone. There may well be cases where the aggravating features are such that a more severe sentence is required. Such aggravating features could, for example, be: a multiplicity of counts; the infection of the complainant with a sexually transmitted disease; or the suffering of serious physical and/or psychological harm. There may equally very well be cases where the mitigating factors are such that a much more lenient approach is required. Such mitigating factors could, for example, be: clear and verifiable indication of minimal physical or psychological harm or a probation officer's report which, for good reason, after a detailed assessment of the offence and the offenders' background, recommends a lesser punishment such as corporal punishment or committal to an institution.”

I am not aware of any other later judgment that has the effect of varying or diluting the guidelines laid down in this case.

I am however aware that there has been a noticeable shift by trial magistrates to emphasize the gravity with which the courts view the offence of rape and how this offence traumatizes the victims. This is indeed the correct approach to adopt in such matters but in my view, the need to protect the complainants in sexual offences need not strip the youthful offender of his status as such and the consequent need on his part to be protected by the courts from his immaturity. The court should always strike a balance between the two competing rights. None is greater than the other.

In *casu*, the trial magistrate did not aver to any aggravating features that would justify a departure from the approach that was suggested in *S v Zaranyika and others* (supra). I have not been able to find any such features in the matter. If it were appropriate to use such language in rape cases, I would venture to suggest that there were minimal aggravating features in this case. The complainant fought off the accused who did not persist with his attack. The medical report does not reveal any physical injury to the complainant who was luckier than most complainants whose cases have come before the courts.

On the basis of the foregoing, it is my view that the sentence imposed upon the accused is severe and induces a sense of shock. It cannot stand.

In the result, the sentence imposed on the accused is set aside and in its place is substituted the following:

“5 years of which 2 are suspended for 5 years on condition the accused does not within that period commit an offence of a sexual nature and for which upon conviction he is sentenced to a term pf imprisonment without the option of a fine.”

The accused person was sentenced on 2 June 2006. He has by now served the full term of his sentence. He is entitled to his immediate release and a warrant for his liberation should issue.

Chatukuta J agrees.
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