The State v Simbarashe Ndafa

The accused was charged with contravening s 70(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] for having unlawful sexual intercourse with a young person. Initially two counts were preferred, showing the accused committed offences against the same complainant (a 15-year-old female juvenile named Marvelous Saiti) on 16 January 2017 and 20 January 2017 at Odzi location. On the date of hearing, the second count was crossed out and incorporated into the first count on the prosecutor's advice that the section penalizes the conduct of having unlawful sexual intercourse with a young person and that the number of times would only be an aggravating feature. The accused pleaded guilty to the single count and was sentenced to 18 months' imprisonment (8 months suspended for 5 years on condition of good behavior, and 10 months suspended on condition of performing 350 hours community service). The matter came before the High Court on criminal review.

• Whether it was proper to delete the second count and incorporate it into the first count
• Whether charging two separate counts for unlawful sexual intercourse with the same young person on different dates constitutes improper splitting or duplication of charges
• Whether the proceedings prior to the plea that were not recorded constituted an irregularity
• Whether the failure to consider the second act as an aggravating factor in sentencing constituted a misdirection

The court withheld its certificate on criminal review due to the irregularity in failing to record pre-plea proceedings and the misdirection in failing to consider the second act as an aggravating factor in sentencing.

Where offences are interspaced in time as to constitute separate acts, even if they involve the same victim, it is competent to prefer separate counts for each unlawful act. The duplication of such counts will only be taken into account for purposes of sentence. A Magistrates Court, being a court of record, must record all proceedings including discussions with the prosecutor prior to the accused entering a plea. Where separate counts are incorporated into one count, the trial court must still consider the multiple acts as aggravating factors in sentencing; failure to do so constitutes a misdirection.

The court observed that it is virtually impossible in the law to lay down a general inflexible test as to when there is splitting or duplication of convictions, citing S v Christie. The court also commented that there is no difference in principle between rape and unlawful sexual intercourse with a young person regarding the propriety of charging separate counts for acts committed on different dates. The court noted that all factors in favor of or against an accused should be considered in sentencing, including the accused's youthful age and other mitigating circumstances.

This case is significant in Zimbabwean criminal procedure for clarifying the law on splitting of charges in sexual offences cases. It establishes that where offences of unlawful sexual intercourse with a young person are committed on separate dates, even against the same victim, separate counts may be properly preferred. The case also reinforces the importance of courts of record properly documenting all proceedings and ensuring that all relevant factors, including aggravating circumstances, are properly considered in sentencing. The judgment provides guidance on when duplication of charges is appropriate and how such duplication should be treated for sentencing purposes.