S v Nyakwava [2025] ZWBHC 23 (11 July 2025)

1 HB 108/25 HCBCR 3327/25 THE STATE Versus SYDNEY NYAKWAVA HIGH COURT OF ZIMBABWE MUTEVEDZI AND NDLOVU JJ BULAWAYO, 11 JULY 2025 Criminal review MUTEVEDZI J: The record of proceedings in the above case was placed before me on automatic review in terms of Section 57 of the Magistrate Court Act [Chapter 7:10]. [1] Sydney Nyakwava (the offender) was arraigned before the court of a provincial magistrate at Gweru on 30 June 2025. He was charged with the crime, which in the papers was described as contravening section 70 of the Criminal Law (Codification and Reform) Act, [Chapter 9:23], (hereinafter the CODE) “Having sexual intercourse with a young person.” [2] At his trial, the offender readily admitted the charge. He was convicted and sentenced as follows: “36 months imprisonment of which 15 months imprisonment is suspended for 5 years on condition accused does not within that period commit any offence of a sexual nature or contravening the relevant provisions of the Criminal Law (Codification and Reform) Act [Chapter 9:23] for which upon conviction he is sentenced to imprisonment without the option of a fine. The remaining 21 months imprisonment were suspended on condition of performing community service. [3] I have no issue with the conviction except for a few indiscretions in the charge, which I will address later. I, therefore, confirm that it is in accordance with real and substantial justice. What worries me is the trial magistrate’s intransigent and recalcitrant attitude. On 3 April 2025, in the case of S v Thomas Mutisi Gweru CRB No. GWP 92-25 and High Court Ref; HCBCR 781-25, the same provincial magistrate couched the offender’s sentence in exactly the same way as he did in this case. I raised a review minute in which I pointed out to him the following issues: HB 108/25 HCBCR 3327/25 “The sentence is … formulated in a way that cries out for my intervention. The condition of suspension is so widely couched that any person tasked with the duty to execute the order will require clarity before doing so. It also fails to direct the offender to the conduct which he must avoid in order to escape falling foul of the conditions of suspension of his sentence. This court has on several occasions highlighted the need for judicial officers to apply their minds when couching sentences to avoid such mistakes. It is permissible for a trial court to suspend a sentence on good behaviour, as it has been provided in several authorities in this jurisdiction. For instance, in Gilbert Baloyi v the State, HMA 14-18, it was held that it is also appropriate to suspend a portion of an offender’s sentence on good behaviour. MAFUSIRE J said: “Suspending portions of prison sentences is a useful tool at the disposal of a sentencing court to salvage multiple benefits out of a situation of criminality. Among other things, suspension on condition of good behaviour is both deterrent and rehabilitative. For that period that the suspension order is operative, the accused knows that a sword is hanging over his head, and that it will strike if he should step his foot wrong again”. However, the courts did not envisage a situation as in the current case, where the condition is so ambiguous as to be meaningless. Clearly, the trial magistrate intended to suspend a portion of the sentence on condition that the offender does not commit any offence of a sexual nature. That is clear from the first part of the wording of the sentence. Instead, he then fell into error when he proceeded to add “or contravention of relevant provisions of Criminal Law (Codification and reform) Act, Chapter 9:23)” Besides being superfluous, the offender being the lay person that he is, would certainly not know or appreciate which provisions in the statute referred to are relevant to the conditions of his suspension. The CODE is an extensive statute. To expect that the offender would read it from the first to the last page to decipher what he must and must not do is preposterous. The trial magistrate was, surprisingly, once more a provincial magistrate. Such mistakes ought not to be happening at those levels which are expected to be guiding the lower ranks. Such guidance will remain a pipe dream if remedial action is not taken.” [4] As indicated, the above review minute was dated 3 April 2025. In the current proceedings, the offender was sentenced on 30 June 2025, which is approximately two months later. Yet, the trial magistrate repeated the same errors that I had cautioned him against in full. I am not sure why that is the case, but it is very easy to conclude that the magistrate appears to have no time to read the guidance that judges provide, or that after reading the review minutes and judgments, he does not care, for there can be no other explanation. If judicial officers in the higher echelons of the magistracy do not appreciate that the judicial system in this jurisdiction has created an in-built mechanism of automatic reviews for the purpose of enhancing the administration of justice by correcting mistakes that may have occurred, then there is a serious problem that needs to be addressed. But such perception ought not be generalised because the majority of magistrates, once guided, learn their lessons and implement the correct principles. Judges cannot keep on HB 108/25 HCBCR 3327/25 writing about the same mistakes to the same magistrates without any benefit. It must stop somewhere. [5] Here, I can do more than restate that the issues I pointed out to the magistrate in S v Mutisi cited above apply similarly. The sentence in the present case is afflicted with the same mistakes. [6] I mentioned earlier that there were issues concerning the framing of the charge in this case. The offender was charged with ‘Having sexual intercourse with a young person in contravention of s 70 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].’ To begin with, s 70 is a broad provision spanning four different subsections, some with attendant subparagraphs. There are two distinct species of crimes created under subparagraphs (a) and (b) of subsection (1) of s 70. Subparagraph (a) criminalizes committing upon a child, any act involving physical contact which a reasonable person may regard as an indecent act whilst subparagraph (b) creates the offence of soliciting or enticing a child to have sexual intercourse or to commit with him/her an act which a reasonable person could regard as an indecent act. Whilst there is an overlap between subparagraph (a) and the second part of subparagraph (b), there is equally a marked distinction. The physical contact amounting to an indecent act in the eyes of a reasonable person referred to in (a) must be performed ‘upon’ a child. The word ‘upon’ is an amalgam of two other prepositions- ‘up’ and ‘on.’ I understand its use in (a) to mean that the act is performed up and on the child, who is a passive actor in the process. In (b), the indecent act is committed with the child. It must follow that it can be the child who performs the indecent act on another person. The proscribed and punishable conduct is soliciting or enticing the child to perform such an act. [7] In this case, the above specifications are absent in the charge itself. The charge was couched in the following terms: “Charged with Crime of Having Sexual Intercourse with a Young Person as Defined in S 70 of The Criminal Law (Codification and Reform) Act [Chapter 9:23].” HB 108/25 HCBCR 3327/25 [8] The above formulation is wrong for two reasons. As already stated, it does not specify whether the offender contravened subparagraph (a) or (b) of s 70 (1). Second, it creates an offence which is arguably unknown at law. The new section 70 does not criminalise doing the proscribed acts upon or with young persons. Instead, it prohibits such acts upon or with children. The old section 70 was couched as follows: 70 Sexual intercourse or performing indecent acts with young persons (1) Subject to subsection (2), any person who— (a) has extra-marital sexual intercourse with a young person; or (b) commits upon a young person any act involving physical contact that would be regarded by a reasonable person to be an indecent act; or (c) solicits or entices a young person to have extra-marital sexual intercourse with him or her or to commit any act with him or her involving physical contact that would be regarded by a reasonable person to be an indecent act; shall be guilty of sexual intercourse or performing an indecent act with a young person, as the case may be, and liable to a fine not exceeding level twelve or imprisonment for a period not exceeding ten years or both.” (Bolding is my emphasis.) As it is currently formulated, section s 70 provides that: “70 Sexual intercourse or performing indecent acts with children between the ages of 12 and 18. (1) Subject to this section, any person who— (a) commits upon a child any act involving physical contact that would be regarded by a reasonable person to be an indecent act; or (b) solicits or entices a child to have sexual intercourse with him or her or to commit any act with him or her involving physical contact that would be regarded by a reasonable person to be an indecent act; shall be guilty of sexual intercourse or performing an indecent act with a child, as the case may be, and liable to a fine not exceeding level 12 or imprisonment for a period not exceeding ten years or both. (Bolding is for emphasis) [9] The differences between the repealed s 70 and the current one may appear subtle, yet they are profound. To begin with, the CODE no longer defines a young person, as previously defined in s 61 of the CODE, to mean a boy or girl under the age of 16 years. That definition was repealed by s 3(a) of Act 1/2024. The nearest a court can come to defining a young person is what is provided for in the Constitution in s 20, which definition is, unfortunately, very elastic. It stretches the age of youth up to 35 years. When one is HB 108/25 HCBCR 3327/25 therefore charged with having sexual intercourse with a young person, it can mean anything up to a person aged 35 years. The old description of a young person was replaced with that of a child, which refers to a boy or girl under the age of 18 years. [10] Judicial officers must therefore always ensure that, firstly, any charge under section 70 spells out whether a person is charged in terms of subsection (1) (a) or (b) and, secondly, that the charge adopts the new nomenclature used in the statute. There is no longer any room for describing a child as a young person because young persons (as previously known) excluded children between the ages of 16 and 18 years. It was that exclusion among other issues that persuaded the Constitutional Court in the case of Diana Kawenda & Another v Minister of Justice, Legal and Parliamentary Affairs & Others CCZ 3/22 to hold that section 70 and a few other sections of the CODE were unconstitutional. When charging an accused of contravening that section, the prosecution must therefore ensure that they specify which of the two crimes the accused must answer to. To allege a blanket contravention of section 70 may be too broad and vague to enable an accused to prepare their defence appropriately. [11] The ideal formulation of the charge, in this case, would have been something like: “Charged with Crime of Having Sexual Intercourse with a Child as Defined in S 70(1) (b) of The Criminal Law (Codification and Reform) Act [Chapter 9:23]. In that on 27 December 2024, and at Jaride village, Chief Chiwundura, Gweru, Sydney Nyakwava, a male adult, unlawfully had sexual intercourse with PP, a girl child below the age of 18 years.” [12] Fortunately, in this case, the indiscretions in the charge, as pointed out earlier, could not have prejudiced the offender because the description of the charge stipulated the misconduct which he faced. Although inelegantly so, it alleged that he had sexual intercourse with the complainant, who was under the age of 18 years. [13] I can only urge magistrates to stay up-to-date with developments in the law. It is a requirement under section 165(7) of the Constitution. Failure to do so amounts to an abdication of one’s responsibilities. That the trial magistrate relied on the repealed section 70 is betrayed by his sentencing judgment. Therein, he quoted the old section 70 wholesale. It beat me that almost a year after the repeal of that provision, a provincial HB 108/25 HCBCR 3327/25 magistrate was still unaware of the changes. The sentencing judgment is replete with allegations that the offender had extra-marital sexual intercourse with the complainant. In Diana Kawenda (supra), the Constitutional Court reiterated that the previous law did not criminalise sexual intercourse with a young person where the parties were married to each other. Proving that one was married to the young person in question afforded an accused a complete defence to the charge. It is the reason why phrases like extra-marital sexual intercourse were replaced with just sexual intercourse in the new crime. [14] Before I conclude this judgment, I also wish to refer to what I think is inappropriate language which was used by the court a quo in its sentencing judgment, where in the third last paragraph the magistrate discussed the need to avoid being influenced by public opinion and put it thus: “What may appear to be justice to the uniformed general public, however, may not necessarily be justice. The general public may not even know the difference between punishment and vengeance- a distinction which is very important when a court is exercising its sentencing function.” (Emphasis is mine) [15] In my view, the above expressions may serve to unnecessarily demean members of the general public who had nothing to do with the crime that was committed. In the case of S v Mbambe & Anor HH144/23, ZHOU J, commenting on the use of gratuitous and insulting language in judgments, said the following: “This kind of language does not only violate the dignity of the persons affected but impairs the integrity and dignity of the court. A judicial officer must exercise restraint and use measured language at all times in order to protect the dignity of the court.” [16] If the tirade by the magistrate herein was aimed at the complainant and those who had a direct interest in the matter, they equally did not deserve such derision. The Sentencing Guidelines, 2023 emphasise, as a sentencing principle, that courts must consider the views of complainants and anyone else affected by the crime (which includes the community in which it was committed and, by extension, the public at large) when assessing the appropriate sentence for an offender. But when sentiments such as those shown above are expressed, they can only serve to make interested parties feel excluded from participating in the sentencing procedure. The result is invariably a loss of HB 108/25 HCBCR 3327/25 confidence in the sentencing process and the entrenchment of the perception that it is a unilateral activity by the court. It is the attitude that only lawyers know, betrayed not only by some judicial officers but by a sizeable number of legal practitioners, which has led to the general perception that the legal profession is not accommodating of other vocations or the public. A court cannot and must not view members of the public as uniformed, because the judicial authority exercised by judges and magistrates is derived from the people. The people enact the laws, which the courts interpret through their representatives in Parliament. It is therefore incorrect to think that the public does not know the difference between punishment and vengeance. The use of temperate language underpins the work of judicial officers. It is a virtue which is indispensable. [17] In conclusion, as stated in earlier paragraphs, there is nothing particularly egregious about the shortcomings in the charge that would warrant my interference with the conviction. Concerning the sentence, the condition of suspension relating to not “contravening the relevant provisions of the Criminal Law (Codification and Reform) Act [Chapter 9:23]” is not only unnecessary but would barely direct the offender to the conduct which he must desist from. [18] I have consulted my brother, NDLOVU J, who not only agrees with the order I made but also with the views I expressed. [19] In the circumstances, I am forced to interfere with part of the sentence and order as follows: a. The condition of suspension which appears in the trial court’s sentence relating to “or contravention of relevant provisions of Criminal Law (Codification and reform) Act, Chapter 9:23)” is deleted from the sentence. b. The trial magistrate is directed to recall the offender to advise him accordingly c. The registrar of this court is directed to forward this judgment to the Chief Magistrate for her to ensure that magistrates do not ignore guidance and directives given by judges. HB 108/25 HCBCR 3327/25 MUTEVEDZI J…………………….. NDLOVU J…………………………. Agrees