S v Mukanyangi (1068 of 2026) [2026] ZWHHC 135 (25 March 2026)

1 HH 283-26 HCHCR 1068/26 THE STATE versus AMOS MUKANYANGI HIGHCOURT OF ZIMBABWE CHIKOWERO J HARARE; 20 and 25 March 2026 Sentencing Judgment Assessors; S Shenje J Mutombwa R Chikosha, for the State Accused in person CHIKOWERO J: [1] The offender, a 23 year old male, appeared before the Magistrates Court on 21 March 2025 charged with the crime of having sexual intercourse with a child as defined in s 70(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. [2] He was convicted on his plea of guilty. [3] The facts were that on dates unknown to the prosecutor but during the period extending from December 2024 to March 2025 and at Tsvingiringu Village, Chief Neshangwe, Sadza, the offender had sexual intercourse several times with MC, a female child aged 16 years. [4] The intercourse was consensual as the two were in love. MC, a form 2 pupil, then stopped attending school and eloped to the offender. [5] MC fell pregnant and is now a mother to a 5 month old baby. [6] The pre-sentencing hearing was held before the Magistrates Court at Chivhu. The offender mitigated in full. The prosecutor, in addressing the court in aggravation, produced the victim impact assessment form. Therein the complainant indicated that she did not want the 2 HH 283-26 HCHCR 1068/26 offender to receive sentence. Instead, she wanted him to be released so that he would look after her. The victim impact assessment form was completed on 19 March 2025. The complainant had not yet given birth. [7] The prosecutor also produced the results of medical tests conducted on both the offender and the complainant. Both tested negative to syphilis. The complainant also tested negative to HIV, but the offender tested positive to HIV. [8] In terms of s 70(1)(c) of the Criminal Law Code the penalty for the crime of having sexual intercourse with a child is a fine not exceeding level twelve or imprisonment for a period not exceeding ten years or both. [9] However, where it is proved that at the time of the sexual intercourse the offender was infected with HIV, whether or not he or she was aware of his infection, he shall be sentenced to imprisonment for a period of not less than ten years. [10] But s 80(1)(c) has a proviso. In material part it reads: “(ii) if a person convicted of any crime referred to in para …(c) satisfies the court that there are special circumstances peculiar to the case, which circumstances shall be recorded by the court, why the penalty provided under this subsection should not be imposed, the convicted person shall be liable to the penalty provided under section …70…” [11] The Magistrates Court stopped the proceedings and referred the matter to the Prosecutor- General. That course of action was informed by a realisation that in the event that it turned out that there were no special circumstances peculiar to the case the appropriate sentence would be imprisonment for a period not less than ten years. The provincial magistrate sitting at Chivhu did not have jurisdiction to impose a sentence of imprisonment for a period of not less than ten years. [12] In terms of s 225(b) of the Criminal Procedure and Evidence Act [ Chapter 9:07 ] the Prosecutor-General, on 17 July 2025, directed that the case be transferred to the High Court for sentence. [13] In due course, the offender appeared before this court for sentence. 3 HH 283-26 HCHCR 1068/26 [14] This court explained to the offender why he was now before the High Court. We were satisfied that the conviction was proper and confirm it. [15] We explained to the offender that he was liable to receive a sentence of not less than ten years imprisonment unless we found that there were special circumstances peculiar to the case, in which case the court would then fall back on the penalty provisions provided for in s 70 of the Criminal Law Code. [16] We explained what is meant by special circumstances peculiar to the case. We stressed that these are reasons or circumstances which are out of the ordinary, either in their nature or extent. See S v Moyo 1988 (2) ZLR 1(S) and S v Siziba 1990 (2) ZLR 87(H). Using s53 of the Road Traffic Act [Chapter 13:11] as an example, we gave the offender a factual scenario of what would constitute special circumstances peculiar to the case. [17] The offender confirmed that he had understood the meaning of special circumstances peculiar to the case and the implications of a finding that such circumstances exist in this case, and vice versa. [18] We are satisfied that what the offender presented are not special circumstances. They dovetail with what Mr Chikosha thought were special circumstances. [19] The offender is 23 years old. The age disparity between the complainant and himself is a mere 7 years. The sexual intercourse, but for the complainant’s status as a child, was consensual. The parties were now living as “husband and wife”. We note that this was a case of child marriage. The offender is unsophisticated. He is a herdsmen. He is a grade 3 drop out. His incarceration would result in suffering for his young family. He has been in custody for over a year. These are ordinary mitigating factors. Even if we take them cumulatively, as Mr Chikosha urged us to do, they still do not amount to special circumstances peculiar to the case. In fact some of those factors are peculiar to the offender. These include his level of formal education and the nature of his employment. [20] Since we have found that there are no special circumstances peculiar to this case we will sentence the offender in terms of s80 of the Criminal Law Code. [21] The aggravating factors are that the offender cut short the complainant’s education and derailed her prospects of a better life. He impregnated her. He exposed her to the risk of 4 HH 283-26 HCHCR 1068/26 contracting HIV. He had sexual intercourse with complainant multiple times. He entered into a child marriage with the complainant. [22] In his favour are the following factors. He is a first offender. He is fairly youthful. He pleaded guilty. He is an –unsophisticated rural dweller. He was genuinely in love with the complainant. He is of ill health, being HIV positive. The age disparity between the offender and the complainant is not huge. He has been in custody since his conviction by the magistrates court sitting at Chivhu on 21 March 2025. These are weighty mitigating factors. The offender is deserving of some measure of mercy. [23] Balancing the aggravation against the mitigation we do not think that there is justification in imposing a sentence in excess of the minimum mandatory penalty. The minimum mandatory penalty is already a lengthy sentence particularly in view of the fact that it is impermissible to suspend any portion thereof. [24] The offender is sentenced to 10 years imprisonment. CHIKOWERO J ………………………………………… The National Prosecuting Authority, legal practitioners for the state.