THE STATE
versus
GEORGE MATIVENGA
HIGH COURT OF ZIMBABWE
CHITAPI & NDEWERE JJ
HARARE, 31 January 2018
Review judgment
CHITAPI J: The accused was convicted by the magistrate sitting at Kadoma for contravening s 70 (1) (a) of the Criminal Law Codification and Reform Act, [Chapter 9:23]. Section 70 (1) (a) aforesaid creates the offence of having sexual intercourse with a young person. The sentence provision upon conviction for the offence provides for a sentence of a fine not exceeding ten years or both a fine and imprisonment. Any consent given by a young person to sexual intercourse with the accused is not a defence. A young person is described in the Act as a boy or girl under the age of 16 years.
The accused in this case was aged 40 or 41 years old. The accused’s actual age was not investigated. He gave his age in mitigation as 40 years whilst the charge sheet indicates that he was 41 years old. Whilst in this case not much can be read into the different ages given because of their closeness, it is important in cases of this nature that the accused and the complainant ages are established or proven. The age gap between the complainant and the accused is a material factor which the trial court should consider in assessing an appropriate sentence following the conviction of an accused person on a charge of having sexual intercourse with a young person.
The complainant in this matter was a grade 5 pupil at a school in Kadoma. She was aged 14 years. The accused and the complainant are related in that the complainant is a young sister to the accused’s wife. The accused proposed to the complainant and the two fell in love in January, 2017. They were intimate over a period of time on several occasions until 12 July, 2017 when they were seen by one Kudakwashe Phiri at night whilst being intimate. Kudakwashe then reported the matter to the police. The accused was arrested and charged with the offence of contravening s 70 (1) (a) of the Criminal Law (Codification and Reform Act.)
