The State v Jabulani Moyo

The accused, a 21-year-old unmarried first offender, was charged with contravening s 66(1)(a)(i) of the Criminal Law (Codification & Reform) Act (aggravated indecent assault) for allegedly kissing a seven-year-old complainant on her vagina in December 2010. Evidence showed that the complainant's ten-year-old brother found the accused kissing the complainant on the mouth while lying on top of her. The complainant testified that the accused had also kissed her on her private parts while they lay side by side. The complainant's grandmothers had examined her by inserting fingers into her vagina, which explained the "defective" hymen found upon medical examination. The accused was convicted by a Regional Magistrate in Bulawayo on 1 December 2011 and sentenced to ten years imprisonment with two years suspended. The accused had responsibility for his siblings as both parents were deceased and showed contrition.

• Whether the evidence proved the offence of aggravated indecent assault under s 66(1)(a)(i) of the Criminal Law Code, which requires penetration of a female's body
• Whether the trial magistrate properly applied her mind to the essential elements of the offence charged
• Whether the evidence disclosed the lesser offence of indecent assault under s 67(1)(a)(i) as a permissible verdict
• Whether the sentence imposed was appropriate

1. The conviction was altered to indecent assault in contravention of s 67(1)(a)(i) of the Criminal Law (Codification & Reform) Act. 2. The sentence of ten years imprisonment with two years suspended was set aside and substituted with twelve months imprisonment, of which five months was suspended for three years on condition the accused does not commit a sexual offence during that period for which he is sentenced to imprisonment without the option of a fine. 3. As the accused had already served the effective sentence of seven months, he was entitled to immediate release.

The essential element of aggravated indecent assault under s 66(1)(a)(i) of the Criminal Law (Codification & Reform) Act is penetration of any part of the female body. Where evidence shows only kissing without proof of penetration, and the trial court fails to canvass the nature of the kiss to establish penetration, the State has not proven the offence beyond reasonable doubt. In such circumstances, where the evidence establishes physical contact of an indecent nature without penetration, the appropriate conviction is indecent assault under s 67(1)(a)(i), which is a permissible verdict under s 275 read with the fourth schedule to the Criminal Law Code. A reviewing court may exercise its powers under s 29(2)(b) of the High Court Act to alter the conviction and substitute an appropriate sentence.

The court made pointed observations about administrative delays in the review process. Despite the trial magistrate's prompt response on 31 January 2012, the Assistant Registrar's office in Bulawayo sat on the record for over five months before forwarding it to the reviewing judge on 16 July 2012. Mathonsi J emphasized that court officials must act with speed in transmitting records for review to ensure the review mechanism is effective and provides necessary checks and balances. Such delays cause avoidable prejudice to accused persons who remain in custody while awaiting review. The court cited previous cases (S v Mhondiwa HB 193/11 and S v Shava HB 200/11) where similar concerns were raised about adherence to statutory requirements for prompt review.

This case is significant in Zimbabwean criminal law as it emphasizes the importance of judicial officers properly applying their minds to the essential elements of offences charged, particularly in sexual offences. It clarifies that aggravated indecent assault under s 66(1)(a)(i) of the Criminal Law Code requires proof of penetration as an essential element, and that mere kissing without evidence of penetration does not constitute the offence. The case also demonstrates the proper use of review jurisdiction to correct material irregularities and substitute permissible verdicts under s 275 of the Code. Additionally, it criticizes delays in the review process caused by administrative inattention, emphasizing the need for speed in transmitting review records to protect accused persons' rights.