S v Duncan S v Kamanyanga (26 of 2024) [2024] ZWCHHC 26 (8 March 2024)

THE STATE

Versus

SYDNEY DUNCAN

THE STATE

Versus

FASTEN KAMANYANGA

HIGH COURT OF ZIMBABWE

MUZOFA J

CHINHOYI,8 March 2024

Review Judgment

MUZOFA J: [1] The two records of proceedings were placed before me on review with a covering letter from the Regional Magistrate who presided over the cases for corrective measures.

[2] In the two cases which have the same modus operandi and same complainant the accused were charged with rape in contravention s65 of the Criminal Law [Codification and Reform] Act [Chapter 9:23]. After the trial the accused were acquitted on the charges of rape and convicted of having consensual sexual intercourse with a young person in contravention of section 70 of the Act. After conviction, before sentence the learned Regional Magistrate became aware of a review judgment S v Gumbo 214/23.

[3] In terms of that judgment s70 of the Criminal Code was declared unconstitutional¹. It then occurred to the court that, at the time the accused persons committed the offence, s70 technically did not create an offence.

[4] I have had sight of the Gumbo judgment which followed the reasoning in S v Moyo HB 210/23 on the same issue. It states the correct position obtaining at the time.

[5] The Constitutional Court declared s70, 76, 83 and 86 of the Criminal Code unconstitutional in the Kawenda judgment dated 24 May 2022. The declaration of invalidity was suspended for 12 months to give the respondents time to amend the law. Simple computation shows that the period of suspension lapsed on 24 May 2023.

[6] From that date a charge under section 70 would then be incompetent since there was no law criminalizing the conduct. The promulgation of Statutory Instrument 12 of 2024 under the Presidential Powers and Temporary Measures addressed the anomaly. It is now an offence to have consensual sexual intercourse with a girl under the age of 18.This Statutory Instrument became effective from January 2024.

[7] Statutory Instrument 12 of 2024 has no retrospective application as that will go against the principle of legality. The principle of legality requires that laws be clear and specific and must apply only to future conduct. No person can be charged and prosecuted for conduct that was not classified as criminal at the time he or she committed it.

[8] It then follows that from 24 May 2023 to January 2024 a charge under s70 of the Criminal Code is null and void. There was no such offence in our statute books. The convictions must be quashed.

[9] I deal with the circumstances of the two accused persons.

[10] The accused persons appeared before the court separately on a charge of rape in contravention of s65 of the Criminal Code. It was alleged that sometime in November 2023 the accused unlawfully and intentionally had sexual intercourse with X a female juvenile aged 13 years without her consent on separate occasions.

[11] After hearing the matters the court acquitted them on the charge of rape, but convicted each one of them with the competent verdict of contravening s70 of the Criminal Code.

[12] Since the offence took place sometime in November 2023 the grace period had lapsed and therefore the offence did not exist. The charge is a nullity and the convictions must be set aside.

Accordingly, the following order is made;

1. The conviction under CHNR 260/23 in S v Sydney Duncan be and is hereby quashed and set aside.

2. The conviction under CHNR 221/23 in S v Fasten Kamanyanga be and is hereby quashed and set aside.

BACHI- MZAWAZI J Agrees