HIGH COURT OF ZIMBABWE
HUNGWE &WAMAMBO JJ
HARARE, 7 & 12 June 2018 & 4 July 2018
G Shumba, for the appellant
W Badalane, for the respondent
WAMAMBO J: The appellant was charged of rape in terms of s 65 (1) of the Criminal (Codification and Reform) Act [Chapter 9:23]. After a trial the court a quo found him guilty of the competent verdict of having extra marital intercourse with a young person in contravention of s 70 (1) (a) of the Criminal (Codification and Reform) Act [Chapter 9:23]. He was sentenced to 2 ½ years’ imprisonment of which 1 year imprisonment was suspended on the usual conditions of good behaviour.
At the hearing the appellant’s counsel abandoned all the grounds of appeal (including the one against sentence) except for only one ground against conviction.
The sole ground of appeal for determination reads as follows:
“1. The trial magistrate erred in finding as a matter of fact that the accused knew or realized the real risk or possibility that the complainant was below 16 years.”
A young person is defined in s 61 (1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] as follows:-
“young person means a boy or girl under the age of sixteen years.”
Section 70 (3) provides a defence to the charge under s 70 (1) (a) as follows:-