Appeal No. 56/01
NYAKABAU v THE STATE
COURT OF ZIMBABWE
CHEDA JA & ZIYAMBI JA
JANUARY 17, 2002
for the appellant
for the respondent
After hearing submissions on this appeal we dismissed it and said
the reasons would follow. The following are
appellant is a schoolteacher in the Mutoko area. At the time of
this offence he was teaching a Grade Seven class and the complainant
was his pupil.
charged with contravening s 3(a) of the Criminal Law Amendment
Act [Chapter 9:05].
He pleaded guilty. He was convicted and sentenced to sixteen
months' imprisonment with labour of which six were suspended on
conditions of good conduct.
appellant appealed to the High Court against both conviction and
sentence. His appeal was dismissed. He has now appealed
Court against the decision of the High Court dismissing his appeal.
following facts are common cause
appellant was the class teacher for Grade Seven;
complainant was his pupil;
3. She was
fourteen years old at the time;
appellant was thirty-three years old;
appellant and the complainant fell in love and subsequently had
6. On being
arraigned, the appellant pleaded guilty to the charge.
appellant noted an appeal to the High Court on the following grounds
learned trial magistrate misdirected himself by failing to explain
the statutory defences to the appellant at the inception
of the trial
or during the canvassing of the appellants guilt as part of the
essential elements of the offence;
2. The fact that the complainant
was a rural girl and in love with the appellant prior to the
commission of the offence was an indication
that she might have been
physically developed, passing herself off as an adult female, hence
the need to explain s 3(a) to the
appellant to give the
appellant a fair trial;
3. The medical report that the
complainants vagina admitted one, two and three fingers suggested
an active sexual life and supported
the statutory defences;
4. Section 271(3)
of the Criminal Procedure and Evidence Act was fatally cursorily
5. There was
no pre-sentence inquiry on the need for a sentence of community
service before passing sentence;
6. The sentence therefore induces
a sense of shock.
of appeal were dealt with in the judgment of CHIDYAUSIKU JP (as
he then was) and CHINHENGO J, who heard the
dismissed the appeal.
appellants grounds of appeal to the Supreme Court are as follows:
honourable judges misdirected themselves by holding that the trial
magistrate did not err by refusing the appellant a postponement
allow the appellant to be legally represented;
honourable judges misdirected themselves by holding that the
essential elements were correctly canvassed, when it was clear
the question Do you appreciate she was below the age of sixteen
years? put the inquiry at the time of trial instead of
commission of the offence.
ground of appeal was dealt with in the High Court and dismissed.
Court, the appellants counsel submitted that the magistrate should
have granted a postponement to allow the appellant
to be legally
represented, and that the failure to do so vitiated the resultant
trial. A number of the cases he referred to are
1989 (2) ZLR 329 (S) the right to legal assistance referred to was
that of a detained person. In this case the appellant was not
detained, In fact, he was not denied access to legal assistance,
but it was his legal practitioner who did not act properly regarding
arrangements for his clients case.
& Ors v Attorney-General
1998 (2) ZLR 305 (S) the trial court was criticised for not allowing
a postponement after some serious additional charges were added
ten days before the trial and there was insufficient time to prepare
the defence case on the additional charges.
1969 (2) RLR 285 (AD), it was held that a postponement for the
accused to obtain legal representation is necessarily one for the
discretion of the court, and that in such a case the question is
whether the accused has had sufficient time to arrange for such
representation. Where the question is raised on appeal, the Court
must be guided by considerations such as whether the trial court
exercised its discretion judicially and for substantial reasons, and
whether the refusal of a postponement has in fact resulted in
substantial miscarriage of justice. The appellant in this case
pleaded guilty and admitted all the essential elements of the
There was therefore no miscarriage of justice at all.
v Public Service Commission
1999 (1) ZLR 513, the appellants legal practitioner had renounced
agency just a few days before the hearing. It was therefore
necessary for the appellant to engage a new legal practitioner to
represent him. I should point out that in Nharis
case the matter was contested and was for trial, unlike in the
present case where the accused person was pleading guilty. The
in the Nhari
case had consulted another legal practitioner on the morning the
inquiry was due to begin. The magistrate had refused the
saying the appellant had already prepared his defence,
yet it was the legal practitioner who was to present the defence who
withdrawn his services.
the second ground of appeal, S
v Sibanda supra
shows that where there is a legal element of the charge which an
ordinary person might not understand, that element needs to be
In fact in Sibandas
case the questions put to the accused did not deal with, or include,
all the essential elements of the charge. In the case before
Court, all the essential elements were embodied in the questions put
to the appellant.
As for the
age of the complainant, I am not persuaded that the appellant did not
know her age at the time. He was her class teacher.
She was in
Grade Seven. He is the person who knows best the ages of the
children he was teaching. He cannot be believed when
that he did not know the complainants age.
Court considered all these points on appeal and concluded thus:
was a schoolteacher who was a teacher of Grade Seven and he was
teaching the pupil in question. One cannot say he admitted to
offence whose elements he did not fully appreciate.
account the above reasons, we came to the conclusion that there was
no merit in the appeal and we dismissed it.
JA: I agree.
appellant's legal practitioners