BULAWAYO – The Bulawayo High Court has set aside a man’s conviction for having sexual intercourse with a child and substituted it with rape, ruling that a magistrate wrongly found that a 13-year-old girl had consented 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 he had never had sexual contact with the girl and that the case had been fabricated by her grandmother after he demanded repayment of a loan.
The girl testified that Ndlovu raped her several times, threatening her with a knife and warning that he would kill her and her grandmother if she disclosed the abuse.
Despite this evidence, the trial magistrate convicted Ndlovu of the lesser offence of having sexual intercourse with a child, reasoning that 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 the relationship 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 Munamato Mutevedzi said, in a judgment with Justice Bongani 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 the girl’s evidence remained consistent throughout, 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 the magistrate could have found consent when the girl had testified that she was threatened with a knife and with death.
“Consent to sexual intercourse is not a difficult concept,” 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 that the magistrate had erred procedurally, convicting Ndlovu on the lesser charge without first properly disposing of the original rape charge. A court, they said, may only return a competent lesser verdict after acquitting an accused of the main charge.
Concluding that the evidence was sufficient to prove rape beyond reasonable doubt, the High Court set aside Ndlovu’s 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. His 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 judgement to him beforehand.
