Criminal Review
NDOU J: The
accused is a woman aged 24 years. She
was convicted, after a summary trial conducted pursuant to the provisions of
section 271(2)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07], of
three counts of rape. She was sentenced
to fifteen (15) years on each count. Of
the total 45 years imprisonment, 10 years was suspended on the usual conditions
of good future behaviour, leaving an effective sentence of thirty-five (35)
years imprisonment. The accused was
being charged as an accomplice i.e. socius
criminis. She was not legally
represented during the trial. As a
woman, under normal circumstances, she cannot commit rape. There is concept of law that makes her liable
to rape in this case. The learned
Regional Magistrate had a duty to explain this aspect of the essential element
of the charge of rape. It is trite that
the purpose of the questioning of the accused by the magistrate is:
a)
to ascertain whether the accused admits the allegations
in the charge to which he has pleaded guilty; and
b)
to satisfy the magistrate that the accused is guilty of
the offence to which he/she has pleaded guilty – S v Tshuma 1979 RLR 356
(G); S v Collett (2) 1978 RLR 288 (G); S
v Sikarama & Anor 1984 (1) ZLR
170 (H); S v Dube & Anor 1988 (2) ZLR 385 (S); S v Sibanda 1989 (2) ZLR
329 (S) and S v Phundula; S v Mazibuko; S v Niewoudt 1978 (4) SA
855 (T).
In the second and
third counts, the accused's alleged participation in the crime is not
clear. Even when the essential elements
were explained, there was no allegation of her involvement in these two
offences. The magistrate must have
ensued that the accused understood the nature of the charge. And that the several elements of the offences
are understood and admitted.
In other words,
it is essential to the validity of a plea of guilty that the accused should
have full knowledge of the nature and extent of his/her admission – R v Patrick
1962 (1) SA 263 (FSC) and S v Dhladhla 1964(2) SA 623 (T). In South
African Criminal Law and Procedure by Lansdawn and Campbell (Volume V)
(1981) at pages 414-5 the learned authors had this to say:
“The material to satisfy the court
of the guilt of the accused is not found in evidence, for section 112(1)(b)
[section 271(2)(b) in this jurisdiction] dispenses with evidence, nor it is
found in the plea of guilty itself, for the court is required in peremptory
language to go behind the plea by asking prescribed questions. It is clear that the crucial information on
which the court is to satisfy itself of the guilt of the accused is to be found
in the answers to the court's questioning.
Before, however, these answers can be capable of satisfying the court
that the accused is actually guilty of the offence to which he has pleaded
guilty they must at least cover all the essential elements of the offence which
the state would otherwise have been required to prove. If any of these is not admitted the court
cannot be satisfied of the guilt of the accused and it may not convict him in
terms of the sub-section or his plea of guilt.”
See also S v Mkhize 1978 (1) SA 264 (N) and S v Munzhelele
1980 (2) SA 110 (V).
The
background facts are the following. The accused and the complainant are
cousins. The complainant was aged 12
years at the time of the offence. On 15th
August 2008, the accused visited the complainant's parents at Crosby Farm,
Nyamandlovu. On 15th August
2008 she left for Bulawayo
with the complainant without notifying her parents. On the 16th August 2008 the
accused brought one, Percy Ndlovu, to the complainant. The accused made advances to complainant on
behalf of Percy Ndlovu. The complainant
turned down the advances. Thereafter,
the accused stripped the complainant of her undergarments and skirt and
facilitated the said 23 year old Percy Ndlovu to have sexual intercourse
without her consent. The accused was
paid $1,5 trillion by Percy Ndlovu for facilitating this rape. This is what constitutes the charge in count
1. These facts were admitted by the
accused during the summary trial. During
the questioning by the magistrate, she admitted that she removed the
complainant's clothes and facilitated the non-consensual sexual intercourse as
outline above. From the accused's
answers and the facts admitted by the accused, the charge in count 1 was
established. She was, therefore,
properly convicted. The facts in respect
of counts 2 and 3 are very scant. These
are the facts:
“08. The accused Percy Ndlovu came again on
another two different occasions and had
sexual intercourse with the victim without her consent.
09.
The case came to light when the neighbourhood member of
Ticehurst Police Base came and told the victim and the accused were wanted at
Ticehurst base since the victim's mother had reported her as a missing person.
10.
The accused had no lawful right to act in the manner he
[sic] did.”
It is clear that
the accused's participation in counts 2 and 3 was not outlined. It is not clear whether she was present during
these two other instances or, whether Percy Ndlovu acted on his own. It is not clear whether the accused
facilitated these two counts. The
canvassing of the essential elements of these two counts is not helpful
either. Her alleged participation in these
two counts were not canvassed at all. All that the accused admitted was that
Percy Ndlovu had sexual intercourse with the complainant on two other
instances. She did not admit that she
participated in these two as well. She
did not say how she became aware of these two other instances. The learned Regional Magistrate, with the
benefit of hindsight, concedes that the accused did not admit participating in
these two other counts. In the
circumstances the convictions in counts 2 and 3 cannot stand.
Accordingly,
it is ordered that the convictions and sentenced in counts 2 and 3 are quashed
and set aside respectively. The
conviction in count 1 is confirmed but sentence is set aside and substituted by
the following:
“15
year imprisonment, of which 5 years is suspended for 4 years on condition the
accused in that period does not commit any offence of rape or of a sexual
nature and for which she is convicted and sentenced to imprisonment without the
option of a fine.”
Cheda
J ……………………………… I agree
