Magistrate’s “Consent” Reasoning Rejected As High Court Finds Man Guilty Of Rape

Bulawayo High Court judges Justices Munamato Mutevedzi and Bongani Ndlovu have set aside the conviction of a man found guilty of having sexual intercourse with a child and replaced it with a conviction for rape.

The judges ruled that the trial magistrate had wrongly concluded that a 13-year-old girl had consented to sex, despite her evidence that she was threatened with a knife.

Hardson Ndlovu had been charged with raping the girl at Johnsly, West Nicholson, between January and November 2025.

He denied the allegations, telling the court that he had never had any sexual contact with her and that the girl’s grandmother had fabricated the case after he demanded repayment of a loan.

The girl testified that Ndlovu raped her on several occasions, threatening her with a knife and warning that he would kill her and her grandmother if she reported the abuse.

Despite that evidence, the magistrate convicted Ndlovu of the lesser offence of having sexual intercourse with a child.

In his reasoning, the magistrate said the girl was capable of consenting and had done so, pointing to her failure to report the abuse and the fact that she had kept it secret.

The High Court rejected that reasoning, saying the magistrate had drawn an unjustified conclusion from the girl’s silence.

“It is not uncommon for even children below the age of twelve years to hide sexual abuse from their parents or guardians,” Justice Mutevedzi said in a judgment with Justice Ndlovu concurring. “I do not think that it is enough for a child’s capacity to give consent to be inferred from what she did not do. Instead, it must be drawn from what she positively did.”

The judges found that the girl’s evidence had remained consistent throughout the trial, and that the magistrate’s finding that she was not credible was “divorced from the evidence on record”.

The court said it was difficult to understand how consent could have been found when the complainant had testified that she was threatened with a knife and with death.

“Consent to sexual intercourse is not a difficult concept,” Justice Mutevedzi said. “It is a voluntary and conscious agreement to engage in a specific sexual activity where the person has both the freedom and capacity to choose.”

Consent could not exist, the court said, where a child was threatened into sex.

The judges also found a procedural error. They said the magistrate had convicted Ndlovu on the lesser charge without first properly disposing of the original rape charge. A court may only return a competent lesser verdict after acquitting an accused of the main charge.

The High Court concluded that the evidence was sufficient to prove rape beyond reasonable doubt, and set aside the conviction for having sexual intercourse with a child and substituted it with a conviction for rape under section 65(1) of the Criminal Law (Codification and Reform) Act.

Ndlovu’s three-year sentence was also set aside as incompetent for a rape conviction, which carries a different sentencing regime.

The matter was remitted to the magistrates’ court for Ndlovu to be sentenced afresh for rape, with the magistrate directed to properly explain the judgment to him beforehand.

More: ZimLive