The High Court in Bulawayo has overturned a 21-month effective prison sentence handed to a 21-year-old man convicted of having sex with a girl aged 14, ruling that the trial court overemphasised deterrence at the expense of mitigation.
Mduduzi Ngwenya was convicted by the Inyathi magistrate’s court under section 70(1)(a) of the Criminal Law (Codification and Reform) Act after a contested trial.
The offence occurred between September 2025 and February 2026, with the relationship coming to light when Ngwenya was found inside the complainant’s room.
The magistrate had imposed a custodial sentence of 24 months, suspending only three months, leaving Ngwenya to serve 21 months while citing the seriousness of the offence and the need for deterrence.
During mitigation, the court was told Ngwenya was a first offender, aged 21, unmarried, and surviving on a small-scale mining income of about US$250 per month.
In her sentencing remarks, the magistrate, however, said: “Accused deserves sentences that will deter would-be offenders.
“Courts are the vanguards of children’s rights.
“A fine or community service sentence will be a mockery to justice and will create a bad precedent in this society”.
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But on review, High Court judges Justice Munamato Mutevedzi and Justice Ngoni Nduna found the sentence excessive and misaligned with sentencing guidelines.
Mutevedzi said the trial court had overemphasised aggravating factors while ignoring key mitigation that Ngwenya was a youthful first offender. “The offender is a first offender and youthful. That must weigh heavily in his favour despite the aggravating factors,” the judge said.
The High Court also criticised how the age gap was treated, noting that Ngwenya was only about four years outside the statutory protected bracket.
“Clearly, it ought to have been taken in the offender’s favour,” the court held, adding that the trial court misdirected itself in treating the age difference as heavily aggravating.
The judges also ruled that the magistrate failed to properly consider non-custodial sentencing options as required under the Criminal Procedure (Sentencing Guidelines) Regulations, SI 146 of 2023.
“It is as much a misdirection not to consider community service as it is to perfunctorily state that it has been considered but deemed inappropriate,” the High Court said.
The court added that while sexual offences against children remain serious, sentencing must still be proportionate and guided by law.
“The sentence imposed is not in accordance with real and substantial justice,” Mutevedzi ruled.
The High Court set aside the sentence and referred the matter back to the magistrate’s court for reconsideration, directing that a non-custodial sentence be properly evaluated. Nduna concurred with the judgement.
