The State v Nakai Tomu

The accused was convicted by the magistrate's court of contravening section 4 read with section 3(1)(a) of the Domestic Violence Act [Chapter 5:16] for physical abuse. The charge alleged that the accused unlawfully committed an act of physical abuse upon Florence Guta, her aunt, by biting her twice with her teeth on the fore finger and on the right side of the mouth. The accused and complainant were described as "aunts in the sense that their husbands are brothers" (sisters-in-law). The accused was convicted and sentenced on 7 February 2019 and had already served part of her sentence by the time of the review.

• Whether the relationship between the accused and complainant (sisters-in-law whose husbands are brothers) falls within the definition of 'complainant' under section 2 of the Domestic Violence Act
• Whether an essential element of the offence of domestic violence was present in the charge and conviction
• Whether the conviction could stand where the relationship between the parties did not meet the statutory requirements

The conviction was quashed and the accused was ordered to be released forthwith.

For a conviction under section 4 of the Domestic Violence Act [Chapter 5:16] to be valid, the relationship between the accused and complainant must fall within one of the categories specifically defined in section 2 of the Act (spouse, child, person living with respondent, or person in intimate relationship). Not every act of physical abuse qualifies as domestic violence under the Act - the parties must have the statutorily defined relationship. Where the relationship does not meet the requirements of section 2, an essential element of the offence is missing and the conviction cannot stand.

The court observed that if the State had properly paid regard to the requirements of section 2, it would have made the necessary averments in the charge specifying the specific paragraph of section 2 and describing the relationship as envisaged in the Act. The court also noted that both the State and the court a quo overlooked this fundamental requirement, indicating a systemic oversight in the application of the Domestic Violence Act.

This case is significant in Zimbabwean criminal law as it clarifies the limited scope of the Domestic Violence Act. The judgment emphasizes that the Act does not apply to all acts of violence between family members, but only to those relationships specifically enumerated in section 2 of the Act. The case serves as an important reminder to prosecutors to ensure all essential elements of an offence are properly pleaded and proven, particularly the specific relationship required under the Domestic Violence Act. It also demonstrates the importance of proper legal characterization of offences - conduct that may constitute assault under general criminal law does not automatically constitute domestic violence under the specialized statute.