S v Mbulawa (HB 62 of 2006) [2006] ZWBHC 62 (12 July 2006)

Judgment No. HB 62/06 Case No. HC 1869/06 CRB B 1363/05 THE STATE Versus GLADSTONE MBULAWA IN THE HIGH COURT OF ZIMBABWE NDOU J BULAWAYO 13 JULY 2006 Criminal Review NDOU J: The accused was aged 30 at the date of trial. He was properly charged before a Beitbridge Senior Magistrate of having had extra-marital intercourse with a young person in contravention of section 3(1)(a) of the Sexual Offences Act [Chapter 9:07]. Nothing turns on the conviction. I am, however, concerned by the propriety of the sentence. The salient facts of the case are the following. The accused was aged thirty (30) years at the time of the offence and he was employed by DHL, in Beitbridge as an Assistant Manager. He is married with one child. The outline of the state’s case erroneously states “… complainant is a female adult aged 12 years” (emphasis added). On the contrary, she is a juvenile aged 12 years in fact she turned 12 years a few days before the offence i.e. on [day/month] 2005). The complainant was doing grade seven at the time at B. G. S.. In mitigation the accused said as a neighbour’s daughter, he was aware of the complainant’s age and that she was doing grade 7. He nevertheless proposed love to her and “she responded HB 62/06 positively” to his advances. Typically of what colloquially termed “sugar daddy” he used money and presents to hold onto or cement their “relationship”. Thereafter the accused would pick complainant from church and drive with her to the bush. This took place on five(5) difference instances. The accused also became aware that the complainant was raped by two young men whose matter was seized with the regional Court. He, nevertheless took her to the bush and sexually abused her. He bought the complainant a cellular phone with a South African Vodacom SIM card (Vodacom signal is received in Beitbridge). The matter did not come to light as a result of the change of heart by the accused. Instead, it was as a result of the efforts of complainant’s concerned mother and Constable Matizirofa of the Victim Friendly Unit of Zimbabwe Republic Police Beitbridge. Even as late as at the commencement of the trial, he did not admit the sexual abuse. It was only after the complainant testified that he merely, fondled her breasts, kissed her and fondled her private parts that he conceded that indeed that was the extent of his involvement with the complainant. The degree of contrition is therefore, very low. The state accepted that there was no sexual intercourse and accepted the accused’s altered plea. The accused was therefore correctly found guilty of contravening section 3(1)(b) of the Act which reads: Subject to subsection (2), any person who- a) b) … commits an immoral or indecent act with or upon a young person; or … c) shall be guilty of an offence and liable, subject to section sixteen, to a fine not exceeding Level Ten or to imprisonment HB “1. 62/06 for a period not exceeding ten years or to both such fine and such imprisonment.” (Section 16 does not apply here as there was no sexual intercourse) See Marx v S [2005] 4 ALL SA 267 (SCA) Sexual abuse of children is viewed by the courts in a serious light. The legislature also holds a similar view as evinced by the promulgation of the Sexual Offences Act supra in 2001 [Act came into operation on 17 August 2001]. The penalties provided by Act are very stiff. The offence is very prevalent. In this case the child victim was aged 12 years and the accused 30 years i.e. a very wide gap of eighteen (18) years. Within a short space of less than a month he had taken her to the bush for purposes of the above- mentioned sexual abuses. Sexual offences upon young persons attract severe forms of punishment – S v Nyirenda HB-86-03; S v Ndlovu HB-66-03 and S v Fikizolo HB-131-04. Paedophillia has to be dealt with effectively. The courts have to drive home the message to so-called sugar daddies or paedophiles that such conduct will not be tolerated as it has grave consequences on the youth. The self-gratification of the adults should not be at expense of debauching young persons. The accused offended against morality by not only gratifying his own sensualities, but by also exciting, encouraging and facilitating the illicit gratification of the 12 year old complainant. The accused acted in a depraved manner – S v Tigere GB-8-80; S v Mafu HB-38-85; S v Nare 1983 (2) ZLR 135 (HB) and S v Musoni HH-183-83. It is the duty of the court to play its part in preserving moral standards in society to punish sexual offenders appropriately and therefore safeguard the 62/06 HB physical integrity of women and girls. The sentence should not be such that it will be taken as if the court is condoning fiendish crimes of sexual abuse of children. The accused’s moral blameworthiness is so high that an effective sentence in the region of two years was called for. In the circumstances I am unable to certify the sentence imposed here as being in accordance with true and substantial justice. I accordingly, withhold my certificate.