State v Chimutsa (401 of 2025) [2025] ZWHHC 401 (7 July 2025)

1 HH 401-25 HCHCR 976/25 CRB MTK 1320/24 THE STATE versus PEDZISAI CHIMUTSA HIGH COURT OF ZIMBABWE MUCHAWA J HARARE; 7 July 2025 Criminal Review MUCHAWA J This review matter came by way of referral from the Regional Magistrate, who after scrutinizing the proceedings of the trial court was of the view that the sentence imposed on the accused person in respect of the charge of indecent assault was too lenient considering the circumstances surrounding the commission of the offence. The accused person was facing two charges being; 1. Physical abuse as defined in s 4(1) as read with s 3(1) (a) of the Domestic Violence Act [Chapter 5:16], and 2. Indecent assault as defined in s 67(1) (a) of the Criminal Law Codification and Reform Act [Chapter 9:23]. The accused person was convicted on his own plea of guilty on the two charges. He is husband to the complainant in the charge of physical abuse and father to the 13-year-old in the charge of indecent assault. The scrutinizing Magistrate found no issues with the convictions in both charges but queried the sentence in respect of the second charge. The allegations against the accused person for the first count of physical abuse were on 21 December 2024 and at Gute Village, Chief Mutoko, Mutoko, had committed an act of physical abuse upon Winnet Musokuwaya, his wife by striking her with an axe handle once on the thigh. For count 2 being indecent assault, it was alleged that on 17 December 2024 and at Gute Village, Chief Mutoko, Mutoko, Pedzisai Chimutsa being a male adult unlawfully and with indecent intent fondled the breasts of his daughter, a female juvenile aged 13 years knowing HH 401-25 HCHCR 976/25 CRB MTK 1320/24 that she had not consented to this act or realizing that there was real risk or possibility that she had not consented to it. For the physical abuse, the accused was sentenced to community service. For the indecent assault a fine of US 110/ZIG equivalent and in default of payment 30 days imprisonment. It was scrutinizing magistrate’s view that a more deterrent sentence ought to have been imposed for indecent assault as the accused person is complainant’s father and he fondled his 13-year-old juvenile daughter’s breasts whilst she was asleep. He seemed to justify his conduct. When asked to comment, the Trial Magistrate stated that she had considered the sentence of a fine as appropriate due to the mitigatory factors that existed. These were that this was a spontaneous act, no physical force was used, there was no injury to the victim, and all this happened when the accused was drunk. She conceded that she erred and that she will guard against this in future. The Sentencing Guidelines, Statutory Instrument 146 of 2023 do set out the statutory penalty for indecent assault as a level 7 fine or 2 years imprisonment. Some of the aggravating factors listed for indecent assault, include that the offender is in a position of authority or influence over the victim and that the offence is motivated by any one or more of the prohibited grounds of discrimination listed in s 56(3) of the constitution. Where any of these aggravating factors is found, the presumptive penalty is 12 months imprisonment. It is indeed correct that the mitigating factors of it being a spontaneous act, that there was minimal or no physical injury to the victim, do exist in this case. The trial magistrate has a well written judgement in which she justifies her departure from the presumptive penalty for indecent assault committed in aggravating circumstances. She, however, does not thoroughly assess the interplay of the mitigating and aggravating factors and gives a cursory glance at the aggravating factors in the context of the circumstances of this matter. Had the aggravating factors been properly interrogated, it would have become evident that the accused is not just anyone in authority over the victim. It is her father turned monster. He is supposed to protect her. Instead, he took advantage of his easy access to his defenseless 13-year-old daughter who was fast asleep and fondled her breasts. Upon being questioned on what he was doing, he accused the complainant of denying him fondling her breasts while HH 401-25 HCHCR 976/25 CRB MTK 1320/24 letting other boys fondle them. Such justification on his part is despicable. He is a father, 30 years older than his daughter, who wants to lay claim on her body in competition with any boyfriends she may have in the future. It is a warped mindset. With such a mindset, what are his boundaries in relation to this daughter? In this case the court should not have ignored the broader context of domestic violence in this home. The first count pertained to physical violence perpetrated against accused’s wife and mother to complainant on 21 December 2024. This was barely a week after the indecent assault on the 13-year-old daughter on 17 December 2024. The indecent assault does fall within the sexual abuse defined in s 2(1) (b) of the Domestic Violence Act. In terms of s 3(1) (m) it is also abuse perpetrated on the complainant by virtue of her age. The sexual abuse humiliates, degrades or otherwise violated the sexual integrity of the complainant. In her victim impact statement, the victim points to the psychological effect of how she is now living in fear. So, if she is afraid at home in the presence of her parents who should protect her? Where is she without fear? If the sentence for indecent assault is contrasted with that for the physical abuse, it is heavier. This may show that the trial magistrate was more swayed by the physical injuries on the mother to this complainant. She even observed that there were no physical injuries as a mitigating factor on the 13-year-old daughter. There should have been an appreciation of the psychological effects on a 13-year-old girl growing up in a home where she is afraid of her father and even going to sleep. A fine in the circumstances trivialized gender-based violence and the aggravating factors. The sentence should have aimed for reformation/rehabilitation in order to promote a sense of responsibility on the part of a father gone rogue. A community service sentence would have provided opportunities for the offender to assist in his rehabilitation. He would learn that the law would not tolerate any forms of gender-based violence and would treat both physical abuse and indecent assault seriously. This lesson would extend to other like-minded people who would see and learn. If heavier sanctions against this type of violation are not given, the message to the public is that these crimes are not serious and you can get away with a pat on the back. Courts need therefore to alter their treatment of boys, girls, men and women in handling of gender violence cases. See Margaret Schuler Freedom from Violence, Women’s HH 401-25 HCHCR 976/25 CRB MTK 1320/24 Strategies from Around the World, Women, Law and Development OEF International, United Nations Fund for Women, 1992 p 37. In the case of S v Tendai Mupaya HH 107/24 it was stated that a court faced with domestic violence offences must be equipped with sufficient facts in order to pass balanced and informed sentences. Beyond just having the facts at hand, the court should understand gender-based violence, the power dynamics at play and this will assist in settling on the appropriate objectives of the sentence. In other words, I am making a case for the need to make judicial officers aware of their gender biases and cultivate new patterns of judicial behaviour. On another level, as the prosecutors have the responsibility of making submissions on aggravating factors, they too need to understand the gender dimensions of certain offences and thereby contribute to more gender responsive sentences coming from the courts. Below, I lay the broad legal framework which should inform players involved in the sentencing process The Committee on the Elimination of Discrimination Against Women (the CEDAW Committee) defines gender-based violence as “violence which is directed against a woman because she is a woman or that affects women disproportionately”. They add that it constitutes a violation of women’s human rights. In its General Recommendation 19, the CEDAW Committee explained that gender-based violence “includes acts that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty. The definition of gender-based violence adopted by the CEDAW Committee reflects the power dynamics and disparities that arise from social, cultural and religious practices presenting women as inferior to men. It is a form of discrimination against women and a violation of their human rights. Zimbabwe is a party to the 1979 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the African Charter on Human and People’s Rights (ACHPR) the Protocol to the African Charter on the Right of Women In Africa (Maputo Protocol), the African Charter on Rights and Welfare of the Child and the Southern African Development Community Protocol on Gender and Development among other international and regional instruments. At national level, the Constitution of Zimbabwe in s 80 proclaims the equality of men and women. Section 81(1) (e) provides for every child’s right to be protected from economic and HH 401-25 HCHCR 976/25 CRB MTK 1320/24 sexual exploitation, neglect or any form of abuse inter alia. The Criminal Law Codification and Reform Act and the Domestic Violence Act are among the main legal tools available in combating sexual gender-based violence. One way the judiciary contributes to Zimbabwe’s fulfillment of its international, regional and national commitments, is to ensure that perpetrators of sexual gender-based violence crimes are prosecuted and the types of judgements are fitting. Each judicial officer must therefore have this broad perspective when dealing with sexual gender-based violence cases. Section 81 (3) of the Constitution provides that children are entitled to adequate protection by the courts, in particular by the High Court as their upper guardian. In the circumstances, the court judgements and sentences must show this protection so that children are encouraged to report such unlawful acts especially when perpetrated in the privacy of their homes. Perverts like the accused need to be nipped in the bud before they graduate to perpetrating more grievous offences. The observations by TSANGA J in S v Jeri HH516/17, are apt regarding the obligation of the court when dealing with cases of gender-based violence. She said: “As courts, it is our duty to be alive to the constitutional imperatives and to make the gender connections from the cases that we deal with. The motivations of the assault were clearly gendered and to fail to speak to the gender dimensions of this case would be to legitimize gender-based violence within the criminal justice system. Our efficacy as courts in addressing gender-based violence rests in ensuring that the criminal justice system speaks to the lived realities and experiences of all its victims. Equally important is showing our appreciation and understanding of the manifestations of gender violence in the cases that we are confronted with. Such open recognition in the cases that we deal with, helps to put gender violence into the consciousness of the law and society in general from the perspective of the courts thereby aiding the process of change.” In sentencing the accused in S v Jeri the court stated that a factor to be considered was the need to send a clear message on the lack of tolerance for violence in general and gender- based violence in particular. The sentence given was one to give the offender a real chance to be rehabilitated and to change his views about women. In fostering respect for women, much will depend on whether there are any conscious efforts directed at rehabilitating him in this regard whilst in prison. He was sentenced to imprisonment for fifteen years. See G Feltoe, The Role of the Criminal Law in the Protection of Women Against Gender Based Violence; Case Note on S v Jeri HH 516/17. HH 401-25 HCHCR 976/25 CRB MTK 1320/24 The same approach should have been employed in the case before me. Granted, it is not a murder case, but it is a worrying case of a father, seemingly testing the waters to see how far he can go. It is the role of the court to stop him in his tracks. This can only be done by looking at his conduct as sexual gender-based violence against his 13-year-old daughter. Had this been done, then the sentence imposed would have been more severe. Given the overall circumstances of this matter, I am withholding my certificate in respect to the sentence in count 2. Like the scrutinizing magistrate, I find no irregularities relating to the convictions in both counts and the sentence in count 1 and accordingly confirm them. I direct that the Registrar brings this review judgment to the attention of the Chief Magistrate and the Prosecutor General for distribution to both magistrates and prosecutors throughout the country. MUCHAWA J:......................................................................