S v Mazanga (HCBCR 548/26) [2026] ZWBHC 115 (31 August 2026)

1 HB 118/26 HCBCR 548/26 STATE Vs BRIGHTON MAZANGA IN THE HIGH COURT OF ZIMBABWE NDLOVU J BULAWAYO 31 AUGUST 2026 Criminal Review NDLOVU J: This matter was placed before me by way of an automatic review in terms of Section 57 of the Magistrates' Court Act [Chapter 7:10] (“the MCA”). The offender had been convicted of Rape and sentenced to 15 [fifteen] years' imprisonment. Upon perusing the record of proceedings in the court a quo , I formed the opinion that, on the totality of the evidence adduced at the trial, the offender committed an offence of a sexual nature. However, the offence committed is not the one for which the trial court convicted the offender. THE CHARGE. [1] The charge against the offender was framed in the following words Name of accused person: BRIGHTON MAZANGA AGED: 25 years (HEREINAFTER CALLED THE ACCUSED) CHARGED WITH RAPE AS DEFINED IN SECTION 65 AS READ WITH SECTION 64 OF THE CRIMINAL LAW (CODIFICATION AND REFORM) ACT [CHAPTER 9:23] In that on the 03 January 2026 and at house number 5399/2 Mkoba 11, Gweru, Brighton Mazanga, a male person, unlawfully had sexual intercourse thrice with “J. T”, a female juvenile aged 14 years who is mentally incompetent and at law cannot give consent to sexual intercourse. ” [my emphasis] STATE OUTLINE [2] The following forms part of the State Outline. “…. 4. On the 3rd day of January 2026 at 1900 hours, the complainant met the accused, who was with his friend. The accused hugged the complainant and told her that they should go to town together. 5. The complainant then left with the accused, going towards the maize field. 2 HB 118/26 HCBCR 548/26 6. The accused person then promised the complainant that he would give her a lot of money and a cell phone if she had sexual intercourse with him…..The accused then lured the complainant to his house, and the complainant agreed. When they arrived, the accused lured the complainant to enter his … bedroom. 7. ….. 8. The accused person told the complainant that they should have sexual intercourse, and he promised to give her money after the act. The accused person started fondling the complainant's breasts, and he removed her skirt and panties. The accused person made the complainant lie down and inserted his penis into the complainant's vagina …. They both slept after having sexual intercourse. 9. The accused woke up after two hours and had sexual intercourse twice with the complainant. They both woke up in the morning, and the accused told the complainant to leave the room and wait for him at the corner of the road, but the accused did not show up as promised. 10. The complainant proceeded to her grandmother's house … and met her mother,… on the way. The complainant's mother asked her where she had slept, and the complainant disclosed what had transpired. 11. The complainant was escorted to ZRP Mkoba and reported the matter….”[my emphasis] THE EVIDENCE [3] The complainant gave evidence that, on the day in question, she met the accused and his friend. The accused hugged her and said it had been a long time. He asked her to accompany him to town, and she agreed. They then went to the shops with the accused's friend. [4] They then went to the accused's house, entered the accused's sister's bedroom, where she took the accused's phone, and was found by the accused’s sister. After exchanging pleasantries with the accused’s sister, she and the accused then went to the accused's bedroom. The accused lifted her and put her on the bed. The accused promised to give her a phone if she lay down and had sexual intercourse with him; they thereafter had sexual intercourse three times during the night. She slept at the accused's place, and in the morning he gave her a phone as promised, and told her that he was going to look for her. She stated that she left and waited for the accused at a corner, but he did not come. On her way home, she passed by her friend's place and later met her mother, who asked where she had slept; she told her mother that she had slept at the accused's place. 3 HB 118/26 HCBCR 548/26 [5] According to the complainant, the accused never proposed love to her; she did not consent to having sexual intercourse. She knew the accused as a neighbour. He knew her mental condition, as he used to discuss it with her mother. [6] In his defence, the accused stated that he met the complainant on 25 September 2025, and he proposed love to her. He next saw her on 3 January 2026 at a tuck shop, and he went with her to his place of residence, where they had consensual sexual intercourse. In the morning, he gave her a mobile phone, and he went to a funeral and was then arrested. He stated that when he spoke to the complainant, he did not know or notice that she was mentally unstable. [7] At the material time, the complainant was between 14 and 15 years old having been born 0n 13 April 2011. THE LAW 64. Competent charges in cases of unlawful sexual conduct involving young or mentally incompetent persons (1) ... (2) A person accused of engaging in sexual intercourse, anal sexual intercourse or other sexual conduct with a young person above the age of twelve years but of or below the age of fourteen years shall be charged with rape, aggravated indecent assault or indecent assault, as the case may be, and not with sexual intercourse or performing an indecent act with a young person or sodomy, unless there is evidence that the young person— (a) was capable of giving consent to the sexual intercourse, anal sexual intercourse or other sexual conduct; and (b) gave his or her consent thereto. (3) A person who engages in sexual intercourse, anal sexual intercourse or other sexual conduct with a mentally incompetent adult person shall be charged with rape, aggravated indecent assault or indecent assault, as the case may be, unless there is evidence that the mentally incompetent person (a) was capable of giving consent to the sexual intercourse, anal sexual intercourse or other sexual conduct, and (b) gave his or her consent thereto. JUDGMENT [7] The charge was drafted inelegantly and incompetently. S 64[2] of the CODE applies to a young person aged between 12 and 14 years, not to a young person aged 14 years and above, 4 HB 118/26 HCBCR 548/26 as in this case, while S 64[3] applies where the complainant is a mental patient. It follows that a charge cannot be drafted so that the two violations are set out in a single sentence, as happened in this case. Drafting the charge in the manner adopted in this matter creates a challenge for the unrepresented accused person in deciphering exactly what brings about the issue of incompetency to consent between age and mental incompetence. [8] A charge must be drafted so that it is clearly traceable to the violated provision of the statute without undue difficulty. Not only must it be drafted in clear terms, but it must also be clearly distilled from the statutory provision that creates it. It must be easy for a layperson to understand. Section 146 of the Criminal Procedure and Evidence Act [ Chapter 9:07] (“the CPEA”) prescribes the essentials of a valid and competent charge. It states that “146 Essentials of indictment summons or charge (1) Subject to this Act and except otherwise provided in any other enactment, each count of the indictment, summons or charge shall set forth the offence with which the accused is charged in such a manner, an with such particularsas to the person, if any, against whom and the property, if any, in respect of which the offence is alleged to have been committed, as may be reasonably sufficient to inform the accused of the nature of the charge.” This provision was articulated by BHUNU J in S v Kurotwi & Anor HH-106-12 as follows: “Thus the State is under an obligation to frame a charge among other things so as to inform the accused person of the offence he is facing together with the particulars or essential elements of that offence. The section also requires the State to inform the accused of the person against whom the offence was committed and the nature of the property involved, if any.” BHUNU J went on to say: “Failure to give such particulars would render the charge defective and exceptiable. It is therefore necessary to examine and see if the charge complies with the essentials laid down in s146 of the Criminal Procedure and Evidence Act.” [9] In cases where more than one criminal act is alleged in a single charge, the criminal allegations are better itemised so that the defence understands the various components of the charge. This usually happens in traffic offence matters, where the particulars of negligence are clearly enumerated, e. g [i] failed to keep a proper lookout and [ii] failed to stop when an accident was imminent. To draft otherwise creates a situation in which an unrepresented accused person may not understand the charge preferred against him. [10] Where a charge is not easy to understand or clear to the court, the trial court must direct that it be simplified for the benefit of all, including itself. This eliminates any discord between the State and the Defence over exactly what the State alleges against the accused. A 5 HB 118/26 HCBCR 548/26 failure by the court to fully comprehend the charge and to identify the allegedly violated statutory provisions prevents it from explaining to the unrepresented accused person the statutorily provided defences. A charge is always a dispute between the State and the subject, brought before the court for resolution. There must be no ambiguity in it or its interpretation. The language used to convey the charge must be clear. Had the trial court appreciated all this, it would at least have explained to the offender that it was a defence that the complainant was capable of consenting to sexual intercourse and did consent to it on the occasion in this matter. [11] The law is clear: a female juvenile aged 14 years or older can consent to sexual intercourse, as can a woman who is mentally incompetent. In each case, the consent is, however, vitiated by operation of law, and in the latter, by the degree of mental incompetence as well. For the latter, provision is made in section 64 of the CODE, which provides as follows: “64 Competent charges in cases of unlawful sexual conduct involving young or mentally incompetent persons (1) … (2) … (3) A person who engages in sexual intercourse, anal sexual intercourse or other sexual conduct with a mentally incompetent adult person shall be charged with rape, aggravated indecent assault or indecent assault, as the case may be, unless there is evidence that the mentally incompetent person (a) was capable of giving consent to the sexual intercourse, anal sexual intercourse or other sexual conduct, and (b) gave his or her consent thereto. (4) If, in the case of a male person who engages in anal sexual intercourse or other sexual conduct with a young male person of or below the age of fourteen years, or with a mentally incompetent adult male person, there is evidence that the young or mentally incompetent person (a) was capable of giving consent to the anal sexual intercourse or other sexual conduct, and (b) gave his consent thereto; the first-mentioned male person alone shall be charged with sodomy.” [12] Relying on S v Machona 2015 (1) ZLR 655 (H), we extensively considered the above provision in the judgment in Masina v The State , HB49-25, in which I sat with my brother, MUTEVEDZI J, as follows: “In our view, the language employed in the above provision needs little if any interpretation. Reliance must therefore be placed on its ordinary grammatical meaning. To begin with, it is unlawful to have sexual intercourse or any other proscribed sexual conduct with a mentally incompetent adult person. The basis of that prohibition is that it may not be possible for a mentally challenged person, even where they are an adult, to appreciate the nature and consequences of a sexual act. By its nature sexual intercourse is a complicated act. It may and usually does confuse even the rational person. The 6 HB 118/26 HCBCR 548/26 emotions and stimulations that it invokes are often so strong that they can easily numb the brain of a mentally fit individual. It is therefore understandable that the law draws caution when such acts are performed on or with mentally challenged people. It is the reason why it must be shown that such individual understood the nature of the act. In the case of S v Machona 2015 (1) 655 the court emphasized that point when it held that: “Evaluation of the complainant’s ability to consent should focus on the event in question, and include information on the individual’s understanding of sexual behaviour and the context of normal sexual relationships; knowledge of the consequences of sexual intercourse, for example, pregnancy and infections; ability to make an informed decision to engage in sexual intercourse…” [13] In this case, the State did not allege that the sexual intercourse was without the complainant's consent. Therefore, based on the complainant's age alone at the material time, the State ought to have realised the inapplicability of identified S 64 in this matter. [14] If the State intended to rely solely on the complainant's mental incompetence to prosecute the offender, after reading the docket, interviewing the complainant, and objectively reviewing the evidence before going to trial, it would have made no reference to the complainant’s age in the charge, except as far as to state her exact age but not as a vitiation of her consent, and would have charged a contravention of S 70. [15] As indicated above, an adult human being suffering from mental incompetence may, depending on the degree of the incompetence, legally consent to sexual intercourse. All there is at law is a rebuttable presumption that, because of their mental challenges, they are unable to consent to sexual intercourse. [16] In this case, there is evidence that the complainant suffers from mental incompetence. That potentially placed her in the untouchable group. However, the State's decision to call her to testify should have alerted both the State and the Court that they could no longer rely on her mental incapacity as a basis for incapacity to consent. A person who is competent to testify in court, is able to follow court proceedings and fully and comprehensively participate in them and is over 14 years of age can hardly be suspected to be mentally incapacitated to consent to sexual intercourse to the degree covered by S 64[3] of the Code. One cannot have it both ways. [17] In any case, the State knew the complainant consented to the sexual intercourse. That is why they did not allege plain lack of consent in the first place. The prosecution also knew the 7 HB 118/26 HCBCR 548/26 complainant was over 14 years of age. Armed with all this evidence, the prosecution ought to have realised that relying on S 64 of the Code to prosecute the offender had sailed and was no longer available. CONCLUSION [18] The complainant was aged between 14 and 15 years. Consent was not alleged to be lacking in the charge. On that basis alone, the charge ought to have been C/S 70 of the CODE. As long as want of consent is not expressly alleged and proven beyond reasonable doubt, no conviction can result under S 64 or S 65 of the CODE. [19] There is no law in this jurisdiction that forbids people with mental conditions from having sexual intercourse at their pleasure. As was put in Masina case (supra) that: “But put conversely however, the above provision also demonstrates that it is within the rights of those mentally challenged people who can appreciate the nature of sexual intercourse and other permissible sexual acts; are also aware of the consequences of such acts and can act in accordance with such appreciation to have sexual intercourse or perform other sexual acts.” What matters is the degree of mental illness the patient suffers and, of course, their age. Where the individual concerned, because of the mental illness, is totally out of it, can’t relate to space and time, has no memory, and cannot testify in a court of law due to the mental illness, is the victim, that person's consent to sexual intercourse, regardless of how express it is, is vitiated by law. However, where the patient is capable of holding a conversation, can decide an issue, and can testify in court and follow court proceedings, consent by such a person cannot be vitiated by law on account of the mental illness, but on other lawful grounds, because that individual has a right to sexual intercourse like any other adult person in our society. [20] Consent, or its absence, is not merely a matter of a say-so. It is also a matter of conduct by the parties before, during and immediately after the sexual act. It is not enough for a complainant to simply respond to a question from the prosecutor and say that they did not consent. While that answer is critical and necessary, the complainant’s conduct at the material time must, of necessity, support it. Where the statement does not sit with the conduct, evidence must be adduced to show that the conduct suggestive of consent was achieved or acquired through coercive means. 8 HB 118/26 HCBCR 548/26 [21] In this case, based on the State Outline and the court’s judgment, the offender was convicted of rape on the basis that the complainant was mentally incompetent. [22] Competence of a witness is for the trial court to decide. Section 245 of the CPEA provides as follows: 245Court to decide questions of competency of witnesses It shall be competent for the court in which any criminal case is depending to decide upon all questions concerning the competency and compellability of any witness to give evidence. [23] In this case, the court found that the complainant, despite the mental challenges observed by the psychiatrist, was a competent witness. The trial magistrate cannot be faulted for that decision. The complainant gave eloquent, clear evidence. Her testimony was coherent. There is nothing in her evidence to suggest mental incapacity at all. Her evidence is therefore subject to normal scrutiny. Without satisfying us that it was irrational for the trial court to find the complainant competent, I find no reason to interfere with that decision. [24] Obiter dicta, it must be noted that our criminal procedure provides for the disclosure of a docket to the defence to enable the defence in its preparation for trial. Invariably, in the majority of cases where the mental capacity of a complainant is in question, the psychiatrist or medical doctor expresses a rather conclusive opinion that the patient/complainant cannot testify at trial. I take it that that opinion is an overreach on the part of the medical personnel, because, in terms of the law, only the trial judicial officer can decide on a witness’ competence. Be that as it may, that medical opinion cannot be disregarded by the defence mero motu, and, in all probability, they will mould their defence with that opinion in mind. When at the trial the prosecution decides to call the complainant to testify, in my view they should notify the defence of their intention in good time, and, most importantly, the Court should not allow the complainant to testify on the merits without first deciding and pronouncing itself on the question of the witness’s competency, as trial criminal courts normally do with child witnesses. This approach will, for good cause, eliminate the danger of the defence handling the complainant witnesses without knowing the court’s attitude towards their competency. [25] In this case, the offender pleaded consent. The complainant, in her testimony, denied having consented to the sexual intercourse. The issue became who is credible between the 9 HB 118/26 HCBCR 548/26 two. Credibility findings are the domain of the trial Court and should not be lightly interfered with. Only in exceptional circumstances will a review or appeal court depart from the norm. As put by the Supreme Court in Nickolas Van Hoogstraten v Tapiwa Nelomwe SC-4-20 at p.7 of the cyclostyled judgment:- “It has been long regarded as settled in this jurisdiction that this Court will not interfere with factual findings including findings on the credibility of the witnesses, made by a trial court unless the decision is irrational. This Court has, in a number of cases, followed the general rule on whether to interfere or not which was expressed in Hama v National Railway of Zimbabwe 1996 (1) ZLR 664 (S) at 670C-D where the court pronounced: “The general rule of the law, as regards irrationality, is that an appellate court will not interfere with a decision of a trial court based purely on a finding of fact unless it is satisfied that, having regard to the evidence placed before the trial court, the finding complained of is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at such a conclusion.” [26] In this case, the complainant was promised a mobile phone in exchange for sex. She engaged in sexual intercourse and was given the mobile phone. The sexual intercourse occurred three times in one night. The following morning, she passed by her friend’s place. She did not cry rape to her friend. When asked where she had spent the night, she told her mother that she had slept at the accused’s place. She did not cry rape to her mother. If anything, she narrated the transaction she had had with the accused the previous night. At worst, it was transactional sexual intercourse. It cannot be worse than that. [27] It is logical and normal that when someone denies having done something, the denial itself reflects an appreciation of what the act is and indicates that the individual was capable of doing it. Apart from the complainant’s say-so that she did not consent to sexual intercourse, the uncontroverted evidence shows that she not only consented but was also capable of giving consent. Her denial was of no moment. I find that the denial was a wise after-the-event response to questions, and that it is defeated by her conduct on the night in question, which, in my opinion, proves that she did consent. In my opinion, the trial Magistrate misdirected herself in finding that the complainant did not consent to the sexual act without first finding that she was not capable of consenting. DISPOSITION [28] The State Outline pleaded vitiated consent. The complainant testified eloquently, dismissing any inhibition arising from her mental challenges. That the accused knew of her 10 HB 118/26 HCBCR 548/26 mental condition is neither here nor there, because mentally challenged people have equal sexual rights to anyone else at the right age. In the circumstances, the offence lay in her age, not in her mental challenges. The evidence adduced proved that the complainant was capable of consenting and did consent to sexual intercourse three times with the accused person. The complainant was below the age of consent, which is eighteen years. In the circumstances, the judgment of the Court a quo must be quashed and replaced with the following. ORDER 1. The accused person is found Not Guilty of Rape, but Guilty of C/S70 of the CODE. “Having sexual intercourse with a young person.” 2. The sentence imposed by the court a quo is hereby set aside and is substituted with the following; “The accused person is sentenced to 3 [three] years imprisonment.” The offender must be recalled to court and be informed of this review outcome. The sentence is effective from the date the offender was sentenced for Rape. NDLOVU J: M. DUBE J: Agrees