Court name
Harare High Court
Case number
Ref 11 of 2013

S v Mwashita (Ref 11 of 2013) [2014] ZWHHC 306 (26 May 2014);

Law report citations
Media neutral citation
[2014] ZWHHC 306
Bere J

HH 306/14

CA 87/13

REF CASE N 11/13










HARARE, 22 May 2014 and 27 May 2014




Criminal appeal




CK Mutevhe, for the appellant

S. Fero, for the respondent




            BERE J: This appeal stems from the conviction and sentence of the appellant at Chipinge Magistrates Court for contravening s 70 of the Criminal Law (Codification and Reform) Act [Cap 9:23].

            Following his conviction the appellant was sentenced to 24 months imprisonment three (3) months of which were suspended on the usual grounds of future good conduct. This appeal is against both conviction and sentence.

            The sole ground of appeal is that the learned Magistrate erred in convicting the appellant when the facts showed that the appellant and the complainant had sexual intercourse whilst living together as husband and wife and that such a relationship is not criminalised by s 70 (supra).

            As against sentence the appellant’s position is that the learned Magistrate ought to have considered a sentence other than a custodial sentence given that he had opted for a prison term of 24 months. Counsel for the appellant argued that the court a quo should have considered either a fine or community service as a viable option to the prison term.

            The respondent has opposed the appeal in its entirety.

            It is clear as argued by Ms Fero for the respondent that the position now adopted by the appellant is a clear departure from his defence outline when he appeared at Chipinge Court where he flatly denied ever indulging in an intimate relationship with the complainant. Secondly the appellant’s position even if it were to be accepted (which factor is not borne out by the evidence led and accepted in the court a quo) would not exonerate the appellant as the protection afforded to the complainant in terms of s 70 is statutorily given, it does not derive from the wishes of the parents. 

            Taken to its logical conclusion what the appellant now alleges would simply mean that the complainant’s mother participated in violating the provision of s 70 and that she could herself have been properly charged for aiding and abating the appellant in the commission of this offence if regard is had to the age of the complainant at the time she was abused by the appellant.

            The evidence accepted by the court a quo was more than sufficient to sustain a conviction against the appellant for having “extra-marital sexual intercourse with a young person” who in any event would not have consented to a spousal relationship. Against the stout denials by the appellant of having indulged in sexual intercourse the court a quo rightly concluded that the complainant had been candid and concluded that indeed sexual intercourse had taken took place. The conviction is therefore more than safe and it needs not be disturbed.

            As regards sentence the measure that is generally applied is that before a superior court interferes with the sentence imposed, that sentence must be regarded to induce a sense of shock and outrage.

            It is accepted that there is a plethora of authorities emanating from this court that have spelt out that it is a misdirection not to consider community service as a viable option where the sentencing court decides to impose a sentence of 24 months and below. See S v Mabhena 1996 (1) ZLR 134.

            But I must add caution and say that approach is not a rule of thumb as each case must be considered on its own circumstances.

            What cannot be disputed in this case is that in crafting s 70 (supra) the legislature was largely motivated by the spirited desire to protect young girls in the mould of the complainant from prematurely indulging in intimate relations with men like the appellant who would be tempted to sexually exploit such young girls.

            By indulging in an exploitative sexual relationship with the complainant, the appellant placed himself within the ambit of the provision of s 70 (supra) whose penalty provision speaks of a fine not exceeding level twelve or imprisonment for a period not exceeding 12 years or both. The first sexual encounter speaks to a possible rape. It was overlooked during proceedings in the lower court and the appellant could have properly have been charged of rape.

            In his reasons for sentence the learned Magistrate gave detailed reasons why he felt very strongly, I must confess, the imposition of a custodial sentence was appropriate. 

            As observed in the case of S v Gono 2000 (2) ZLR 63 (H) the learned Magistrate fell into error of not giving reasons why a sentence of community service was inapplicable in this case.

            Be that as it may, I do not believe such an omission was so fatal as to vitiate the sentence which was eventually meted out if regard is had to inter alia the disparity in ages between the appellant and the complainant, a young unsuspecting girl, clearly unaware of the inherent dangers of being forced to indulge in pre-marital sex.

            Everything considered, I am of the firm view that the appeal must be dismissed in its entirety. The appeal is accordingly dismissed.




Mugadza, Chizamba & Partners, appellant’s legal practitioners

Attorney General’s Office, respondent’s legal practitioners




BERE J ________________________________





HUNGWE J agrees ______________________