MATHONSI J: The
accused person appeared before the Provincial Magistrate in Zvishavane and was
on 4 May 2011 convicted of aggravated indecent assault in breach of section 66
(1) (a) of the Criminal Law Code [Chapter 9:23]. He was sentenced to 12 months imprisonment of
which 6 months was suspended for 5 years on condition of good behavior.
The matter came before me after the
accused had already served his sentence.
The facts are that the 17 year old
accused was a herd boy employed at the 13 year old complainant's
homestead. On 7 December 2010 he
forcibly got into the complainant's blankets while she was sleeping and
forcibly removed her skin tight before inserting his erect penis in between the
complainant's legs. The complainant
screamed forcing him to flee.
Section 66 (1) (a) provides:
“Any person who, being a male person, commits upon a female
person any act, other than sexual intercourse or anal sexual intercourse,
involving the penetration of any part of the female person's body or of his own
body with indecent intent and knowing that the other person has not consented
to it or realizing that there is a real risk or possibility that the other
person may not have consented to it, shall be guilty of aggravated indecent
assault and liable to the same penalty as is provided for rape.”
In terms of section 65 of the
Criminal Law Code, the penalty for rape is imprisonment for life or any shorter
period. The provincial magistrate
therefore did not have jurisdiction to deal with the matter and the facts which
I have set out above prove attempted rape.
When the scrutinizing magistrate
queried these issues the trial magistrate was quick to apologise saying it was
just an oversight on her part. Not
impressed by that response the scrutinizing magistrate insisted on a full
response to the queries. 6 months after
the conviction and sentence of the accused, and after he had already served the
sentence imposed, the trial magistrate responded as follows:
“The above matter refers.
Your worship my apologies. The
court had no jurisdiction to hear the matter.
There was no penetration effected to any party (sic) of the body. I do agree that the conviction was not
proper.
His erect penis was only inserted between the legs of the
victim hence no penetration was effected.
The charge was wrong.
My sincere apologies your worship.”
Clearly, both the conviction and
sentence were improper. In terms of section
275 as read with the 4th
Schedule to the Criminal Law Code on a charge of aggravated indecent
assault, indecent assault is a
permissible verdict. If the trial magistrate
was convinced that the facts did not prove aggravated indecent assault, he should
have convicted him of indecent assault.
In which event the accused person should have been sentenced as provided
for in section 67 of the Criminal Law Code.
That section provides for a fine not exceeding level 7 or to
imprisonment for a period not exceeding 2 years or both.
The proceedings were therefore not
in compliance with real and substantial justice. There is nothing to suggest that the
magistrate applied her mind to the charge and indeed the facts of the matter. As a result an injustice was done. This court has in the past bemourned the lack
of diligence in transmitting records for review – S v Mhondiwa
HB-193-11. In that case I stated at
pages 4 – 5 as follows:
“The reviewing judge and the trial magistrate are a tag team
serving the same purpose namely to ensure that justice is done and accused
persons receive fair treatment. In
review proceedings time is always of the essence and for that reason there must
be strict compliance with the time limits provided for in the Act for
submitting records of proceedings for review.
The reason for those requirements is self evidence. The reviewing judge may decide that the
sentence imposed by the magistrate is excessive and should either be quashed or
substantially reduced. It is therefore
undesirable for an accused person to serve the whole or a substantial part of
the sentence which he does not deserve while the record remains somewhere
between the court room and the judge's chambers.”
It is
regrettable that I have to repeat the foregoing remarks in the present
case. The record in this matter was
placed before the scrutinising magistrate in June 2011 more than a month after
conviction and sentence. He raised
queries on 20 June 2011 and although the trial magistrate wrote her letter on
12 July 2011, she only sent it out in August 2011. The scrutinizing magistrate respondent by
letter dated 30 August 2011 and it was not until 6 November 2011 that the trial
magistrate wrote back admitting her mistakes.
Meanwhile during all these delays the accused person had completed his
sentence.
Considering that the accused person
is a youthful first offender, had the proceedings been properly conducted it is
very likely that he would have benefitted from
the provisions of section 67 aforesaid and got a sentence other than
imprisonment.
Whichever way the proceedings cannot
stand. There is a pressing need to quash
them and remit the matter for corrections to be made. In the result, it is ordered as follows:
- That the conviction of the
accused person is quashed and the sentence is set aside.
- That the matter is remitted to
the magistrate's court for the prosecution to prefer proper charges
against the accused person before a competent court.
- That the said court shall have
regard to and credit the accused with the sentence that he has already
served in assessing an appropriate sentence.
Mathonsi J ………………………………………………….
Makonese
J agrees …………………………………………………..
