MATHONSI J: This matter was referred to me
by the scrutinising Regional Magistrate who found himself unable to certify the
proceedings as being in accordance with real and substantial justice for two
reasons
The first reason is that the Regional Magistrate felt that the accused
should have been charged with rape as provided for in Section 64(1) of the
Criminal Law (Codification and Reform) Act, [Chapter 9:23] as opposed to being
charged with contravening section 70(1) (a) of the same Act.
The second reason is that the Regional Magistrate was of the view that
the accused person had not admitted an essential element of the charge relating
to the issue that the complainant was below the age of 16 years. In view of that he strongly felt that the
plea should have been altered to that of not guilty.
Defending his actions, the trial Magistrate argued that there is a
conflict between Section 64(1) and Section 70 (4) (a) (i) of the Criminal Law
Code. He reasoned that while the former
section brings under the ambit of the crime of rape sexual intercourse with a
female of or under the age of 12 years, the latter section seems permissive
in that it provides that rape is a competent charge for intercourse with a
female person below the age of 12 years.
The trial Magistrate felt he was therefore at liberty to proceed under
Section 70(1) (a) because the complainant was aged 12 years and not below the
age of 12 years.
The scrutinising Regional Magistrate then sought assistance in resolving
these issues and referred the matter to me.
The facts are that the accused is aged 18 years and he was charged with
having sexual intercourse with a young person in violation of Section 70(1) (a)
of the Criminal Law Code. The allegations
are that on the 16th December 2009, the accused who is a cousin of
the complainant had visited the complainant's home at Malibeng village in
Beitbridge area over night. He had
sexual intercourse with the complainant once and left.
Subsequent to that it was discovered that the complainant had fallen
pregnant and this led to the arrest of the accused who was charged as already
pointed out. At the appearance of the accused
before the trial magistrate at Beitbridge Magistrates Court on 17 May 2010
neither the birth certificate of the complainant nor that of the accused were
produced. No evidence at all was led as
to the ages of both the accused and the complainant. Indeed even the facts placed before the Court
did not contain the date of birth of the complainant. The closest the Court came to knowing her age
is from the charge sheet which reads in part as follows:
“Contravening
section 70(1) (a) of the Criminal Law (Codification and Reform) Act, [Chapter
9:23] 'Having sexual intercourse with a young person' In that on the 16th day of
December 2009 and at Malibeng area, Beitbridge, Shakeman Dube unlawfully had
extra-marital sexual intercourse with Lungisani Ndlovu a young female person
aged twelve years.”
How it was alleged that the complainant is aged 12 years is not apparent
from the papers and no inquiry was made into that. The accused pleaded guilty to the charge but
in doing so he qualified his plea by saying he “did not know her age.” This did not deter the trial magistrate from
finding him guilty as charged.
In going through the essential elements of the offence with the accused
person, the dialogue between the Magistrate and the accused went like this;
“Facts read and
understood. Annexure “A”
Q. Are they true and correct?
A. Yes
Q. Anything to add or subtract
A. When I committed the offence, I did not
set out to do it. I had paid them a
visit and whilst whiling up time she approached me and started caressing me
holding my private parts. I remonstrated
and asked why she was doing that and she told me she was more experienced and
there was nothing she did not know. She
let go of me and I was given a room to put up at her homestead. Whilst asleep she came to the bedroom naked
without anything in her under garments.
I asked her to go away and (she) told me not to panic and not to be
afraid. I was ---(illegible)--- and I
knew she had a lot of boyfriends. I had
sex with her once and I went back home.
She was not a virgin, ....
Her
physical appearance she seemed mature.
Essential
Elements
Q. Correct you were at Malibeng Area,
Beitbridge on the 16th December 2009.
A. Yes
Q. Whilst there you had sexual intercourse
with Lungisani Ndlovu.
A. Yes
Q. You knew she was a juvenile or minor
below 16 years.
A. I was not aware, I saw her body.
Q. She is your relative and you visit each
other.
A. Yes
Q. You knew she was attending primary
school
A. Yes
Q. What grade
A. Seven
Q. For how long have you known her?
A. I saw her grow up from childhood.
Q. You knew she was younger than you.
A. Yes
Q. By how many years?
A. I am not sure
Q. When did she start school?
A. I do not remember but I was in grade
seven when she started school.
Q. How old are you?
A. I am 18 years old.
Q. So you see she is a young person.
A. I skipped grade six so I should have
been in grade six. I however understand
the offence.
Q. Any right to do what you did?
A. No
Q. Is your plea of guilty an admission of
the charge, facts and--- (illegible)
A. Yes
Q. Any defence to offer?
A. No
V-
guilty as pleaded.”
It is clear from this dialogue that
the accused did not admit knowledge that the complainant was a young person as
defined in the Criminal Law Code. In
fact, the trial Magistrate resorted to cross examining the accused who clearly
denied knowledge of the age of the complainant.
This was an unrepresented accused person and it was the duty of the
Magistrate to assist him. The moment the
accused challenged the age of the complainant, in fact he said, the complainant
“seemed mature” from her physical appearance, the Magistrate should have
altered the plea to that of not guilty.
Judicial officers are obligated to
ensure that an unrepresented accused receives a fair trial and to ensuring that
justice is done. Even where the judicial
officer does not believe the defence proffered, he or she must still allow the
accused person to ventilate it and not to play big brother over the accused
person. The Court must always satisfy
itself that the admission of guilt is genuine as there are dangers of
convicting on a guilty plea. It is
simply untested. See S v Chiredzero HH 14/88. The Magistrate therefore erred in convicting
the accused on the basis of a plea which the accused had qualified.
Looking at the charge itself I have
already stated that no investigation whatsoever was conducted on the exact age
of the complainant. The Magistrate
merely relied on the charge sheet which was not explicit in its wording only
alleging that the complainant was 12 years old. It is always critical to determine the exact
age of the complainant in cases involving the sexual abuse of children. This derives from the intricate provisions of
the Criminal Law Code which give rise to varying types of charges and indeed
penalties to be meted out.
What was placed before the Court was
patently incomplete if not inaccurate information. To say the complainant was aged 12 years was
as inaccurate as it was problematic. Just
what does it mean? Could it be that she
was celebrating her 12th birthday on the day of the offence, or had
already attained that age or was in her 12th year? It was therefore necessary to ascertain the
exact age by means of her birth certificate and/or medical evidence as to her
probable age if the date of birth was not known. None of this was done.
The same goes for the accused
person. The Magistrate contented himself
with accepting his evidence that he was 18 years old. It was necessary to clarify his exact age as
it would have gone a long way in assisting the court in assessing sentence.
Section 61, which is the definition
Section of Part III of the Criminal Law Code defines “young person” as “a boy
or girl under the age of 16 years.” It
therefore puts a lid on what a young person is without specifically providing a
minimum age. For one to determine how to
apply the provisions of Sections 64 and 70, it is imperative to conduct an
investigation of what the intention of the legislature was.
Section 64(1) provides:
“A person accused
of engaging in sexual intercourse, anal sexual intercourse or other sexual
conduct with a young person of or under the age of twelve years shall
be charged with rape, aggravated indecent assault or indecent assault, as the
case may be, and not with sexual intercourse or performing an indecent act with
a young person or sodomy, unless there is evidence that the young person-
(a)
was capable of giving consent to the sexual
intercourse, anal sexual intercourse or other sexual conduct, and
(b)
gave his or her consent thereto.”
This provision is peremptory by virtue of the use of the word “shall” in
the section and literally interpreted it means that as long as it cannot to shown
that a young person was capable of consenting then the accused person should be
charged with rape. Young persons of and
under the age of 12 are incapable of consenting to sexual intercourse in our
law. By parity of reasoning offenders
against this group should not be charged under section 70(1) which relates to
sexual intercourse with a young person.
It was the intention of the legislature to give effect to that common
law position and it specifically provide that both young persons under and aged
12 years are covered by that section.
That position is buttressed by an examination of Section 70(4) (a) (i)
of the Criminal Law Code which provides:
“For the avoidance
of doubt it is declared that the competent charge against a person who has
sexual intercourse with a female person below the age of twelve years
shall be rape.”
That whole section deals with offences against “young persons.” I have already stated that, section 61 limits
the definition of young person to 16 years while not setting a minimum cut
off. For it to be understood, it must be
read in conjunction with Section 64(1) which includes those aged 12 in the group
of those incapable of consenting to the extent that an offender against that
group should be charged with rape.
It must follow therefore that for all intents and purposes those falling
under the definition of young persons are those of 13 years and below 16
years. Any other construction of these
provisions will not effectively address the mischief the legislature intended
to address namely to punish attackers of young persons of and below the age of
12 severely.
In any event, if the legislature intended to let off those who have
sexual intercourse with young persons aged 12, it would have specifically said
so. To the extent that the wording of
Section 70(4) (a) (i) is silent on those aged 12, limiting itself to those
below the age of 12 must be understood to mean that it does not oust the
specific provisions of Section 64(1) which includes them. To hold otherwise would lead to an absurdity.
I therefore come to the inescapable conclusion that the trial Magistrate
should not have allowed the charged preferred against the accused to stand as
he should have been charged with rape.
The accused was sentenced to perform 210 hours of Community Service
which commenced on 21 May 2010 and was completed within 6 weeks from that
date. He has therefore served his sentence. Nothing can be done now to remedy the
situation.
For these reasons I refuse to certify the proceedings as being in
accordance with real and substantial justice and withhold the certificate.
Mathonsi
J..................................................................
Ndou
J agrees...............................................................
