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HB30-09 - THE STATE vs ANGELINA NGWENYA

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Rape-viz twenty four year old female accused.

Sentencing-viz rape re accomplice.
Rape-viz accomplice re socius criminis.
Procedural Law-viz unrepresented accused re duty of the court to explain to the accused the essential elements of the charge.
Procedural Law-viz rules of evidence re admissions.
Procedural Law-viz plea of guilty re admissions of an unrepresented acccused iro full knowledge of the nature and extent of his/her admission.
Procedural Law-viz plea of guilty re admissions iro section 271(2)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07].
Rape-viz twelve year old victim.
Sentencing-viz accomplice re rape.

Rape and Approach to Sexual Assault Cases

The accused is a woman aged twenty four 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.

As a woman, under normal circumstances, she cannot commit rape.

There is a 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.

Sentencing re: Sexual Offences iro Rape


She was sentenced to fifteen (15) years on each count. Of the total forty-five years imprisonment, ten years was suspended on the usual conditions of good behaviour, leaving an effective sentence of thirty-five (35) years imprisonment.

Accessory, Accomplice, Common Purpose, Conspiracy to Commit, Co-perpetrators and Complicity re: Approach

The accused was being charged as an accomplice i.e. socius criminis.

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.

Court Management re: Conduct of Trials, Obligations Toward Unrepresented Accused and the Adherence to Fair Trial Rights

She was not legally represented during the trial.

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).  

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 (FCS) and S v Dhladhla 1964 (2) SA 623 (T).

Indictment or Charge re: Plea of Guilty, Alteration of Pleas and Triable Issues Raised During Plea Recording

In South African Criminal Law and Procedure by LANSDAWN and CAMPBELL (Volume V) (1981)..., 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 is it 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 subsection or his plea of guilt.”

See also S v Mkhize 1978 (1) SA 264 (N) and S v Munzhelele 1980 (2) SA 110 (V).

Accessory, Accomplice, Common Purpose, Conspiracy to Commit, Co-perpetrators and Complicity re: Approach

The background facts are the following.

The accused and the complainant are cousins. The complainant was aged twelve years at the time of the offence. On 15 August 2008, the accused visited the complainant's parents at Crosby Farm, Nyamandlovu. On 15 August 2008, she left for Bulawayo with the complainant, without notifying her parents. On the 16th of August 2008, the accused brought one Percy Ndlovu to the complainant.

The accused made advances to the 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 twenty-three 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 One.

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 outlined above. From the accused's answers, and the facts admitted by the accused, the charge in Count one was established.  

She was, therefore, properly convicted.

Accessory, Accomplice, Common Purpose, Conspiracy to Commit, Co-perpetrators and Complicity re: Approach

The facts in respect of Counts Two and Three 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 Two and Three 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 instances.

The learned Regional Magistrate, with the benefit of hindsight, concedes that the accused did not admit participating in these two Counts.

In the circumstances, the convictions in Counts Two and Three cannot stand.

Accordingly, it is ordered that the convictions and sentence in Counts Two and Three are quashed and set aside respectively.

Sentencing re: Sexual Offences iro Rape

The conviction in Count One is confirmed but the sentence is set aside and substituted by the following:-

“Fifteen year imprisonment, of which five years is suspended for four 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.”

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
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