The State v Fanuel Ncube

The accused was charged with attempted rape as defined in section 189 read with section 65 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] before a provincial magistrate at Gweru. On 9 April 2025, in Nkani Village, Chief Bunina, Lower Gweru, the accused attempted to have sexual intercourse with a 40-year-old complainant without her consent. The accused tripped the complainant in broad daylight, attempted to remove her skirts, strangled her and threatened her with an okapi knife. When the rape attempt failed, he demanded cash from the complainant. She was saved by the emergence of two men who assisted her. The accused pleaded guilty and was convicted by the provincial magistrate and sentenced to 5 years imprisonment, with 2 years suspended for 5 years on condition he does not commit any sexual offence during that period. The matter came before the High Court on automatic review.

• Whether a provincial magistrate has jurisdiction to try a case of attempted rape
• Whether the trial court erred in failing to determine whether the attempted rape was committed in aggravating circumstances before sentencing
• Whether it is permissible to suspend a portion of a sentence where an enactment prescribes a mandatory minimum sentence
• Whether suspension of sentence is permissible for offences listed in the Eighth Schedule to the Criminal Procedure and Evidence Act

a. The accused's conviction was confirmed as being in accordance with real and substantial justice. b. The sentence imposed by the court a quo was set aside. c. The matter was remitted to the trial magistrate to proceed in terms of section 54 of the Magistrates Court Act [Chapter 7:10] (which provides for referral to a court with appropriate jurisdiction).

The binding legal principles established are: (1) A provincial magistrate has no jurisdiction to try cases of attempted rape because the mandatory minimum sentences for attempted rape (which are the same as for actual rape under section 192 of the Criminal Code) exceed the provincial magistrate's sentencing powers of maximum 5 years imprisonment. (2) Before imposing sentence in rape or attempted rape cases, a court must determine whether aggravating circumstances as listed in section 65(2) of the Criminal Law (Codification and Reform) Act exist, as this determines whether the mandatory minimum sentence is 5 years or 15 years. Failure to make this determination constitutes a gross irregularity vitiating the sentence. (3) A court cannot suspend any portion of a sentence where an enactment prescribes a mandatory minimum sentence. Attempted rape falls within the Eighth Schedule to the Criminal Procedure and Evidence Act as an offence attracting a mandatory minimum sentence, and therefore suspension of sentence is prohibited by section 358(2)(b). (4) Where a magistrate lacks jurisdiction to sentence an offender after conviction, the matter must be remitted to be dealt with under section 54(2) of the Magistrates Court Act for referral to an appropriate court.

MUTEVEDZI J made strong obiter comments criticizing the trial magistrate's conduct, stating: "The folly of the trial magistrate in choosing to deal with this case is simply staggering. It is difficult to comprehend why a provincial magistrate would want to try a matter where he/she clearly has no jurisdiction." The judge emphasized that determining jurisdiction is elementary and the first question a magistrate must ask before proceeding with any case. The judge also observed that the attempted rape in this case was "not only bad but was equally brazen" and that "the offender was dangerous and daring," characterizing the attack in broad daylight with violence and use of a weapon as conduct clearly falling within aggravating circumstances. These observations underscored the seriousness with which sexual offences should be treated and the importance of magistrates understanding the limits of their jurisdiction.

This case is significant for establishing important principles regarding judicial jurisdiction and sentencing in sexual offences in Zimbabwe (the judgment appears to be Zimbabwean, not South African, based on the citations and references to Zimbabwean legislation). It reinforces that: (1) Magistrates must ensure they have jurisdiction before proceeding with a case; (2) The principle of parity in sentencing between completed crimes and attempts under section 192 of the Criminal Code means attempted rape must be treated with the same seriousness as rape itself; (3) Courts must make specific findings on aggravating circumstances before sentencing in rape and attempted rape cases; (4) Sentences for offences with mandatory minimums cannot be suspended; and (5) Jurisdictional errors result in incompetent proceedings that must be corrected on review. The judgment serves as a strong rebuke to magistrates who exceed their jurisdiction and fail to follow proper sentencing procedures in serious sexual offences.