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Former St John’s College athletics instructor and Zimbabwe Triathlon Association coach David Edward Gardner lost his appeal against conviction in a case of indecent assault involving minors.
According to the NPA, Gardner had been found guilty in July 2008 of 3 counts of indecent assault involving three boys who were students at the school.
He had been sentenced to 24 months imprisonment (i..e 8 months per count), of which 12 months were suspended and he was to serve 12 months effectively.
He was granted bail pending appeal on 22 July 2008 and has been out of custody since then.
Dissatisfied with the conviction, he appealed to the High Court protesting his innocence based on the fact that the State had not proved its case beyond reasonable doubt.
However, the High Court dismissed Gardner’s appeal and he promptly lodged another appeal in the Supreme Court, alleging among other things that the Prosecutor assembled state witnesses in his office and discussed the case in a manner that was irregular and prejudicial to his case.
In a judgement handed down by the Supreme Court on 12 March 2024, the Supreme Court upheld the decision of the High Court that the State had proved its case beyond reasonable doubt.
There was irrefutable evidence that Gardner had unlawfully and intentionally abused one boy in Switzerland and two others in Zimbabwe.
The 12 months which was meant to be served in prison was commuted to 460 hours of community service because there was a delay before the appeal was heard in the High Court. After all, the record of proceedings went missing.
The issue of the missing record was beyond the National Prosecuting Authority’s control.
Gardner has been ordered to present himself before a Regional Magistrate at the Harare Magistrates Court for the assignment of community service duties at a public institution.
More: <a href="https://www.pindula.co.zw/">Pindula News</a>

Pindula News

Former St John's College Athletics Instructor Abused Boys

Paedophiles who targeted children under the age of 16 since May 25, 2023, are currently immune from prosecution in Zimbabwe. This is because the government failed to amend the law as directed by the Constitutional Court, <a href="https://www.zimlive.com/paedophiles-immune-from-prosecution-as-government-dithers-to-close-loophole/">ZimLive</a> reported. The legal loophole was discovered by Justice Christopher Dube Banda of the Bulawayo High Court while ordering the acquittal of Nkosilathi Gumbo, who had been convicted and sentenced to three years in prison for engaging in sexual intercourse with a minor.
The Constitutional Court had declared certain sections of the Criminal Law Code, which determined the age of consent for sexual intercourse, as unconstitutional on May 24, 2022. The court then allowed 12 months for the authorities to correct and amend the law to protect children from sexual exploitation. However, this deadline passed on May 25, 2023, without any new law being enacted.
As a result, Justice Dube Banda ruled that Gumbo’s conviction was based on a non-existent law and therefore should be set aside. The judge stated:
<blockquote>
Therefore, the accused was charged, prosecuted, convicted and sentenced with contravention of a non-existent law.
Charging, prosecuting, convicting and sentencing an accused person with a non-existent law is an irregularity so fundamental that the law cannot countenance.
Such proceedings are susceptible to be reviewed and set aside. I therefore find that the proceedings in the trial court were not in accordance with real and substantial justice, as a result, a substantial miscarriage of justice has actually occurred.
The conviction cannot stand… the conviction and sentence be and is hereby quashed and set aside.
</blockquote>
The Justice Minister, Ziyambi Ziyambi, acknowledged the need for amending the law but cited a shortage of drafters as a delay in the process. He mentioned that they have requested the president to use presidential powers to expedite the amendment, to have it gazetted by the coming weekend.
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