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, forcibly removed her skin tight, and inserted his erect penis between the complainant's legs. The complainant screamed and he fled. The accused appeared before the Provincial Magistrate in Zvishavane and was convicted on 4 May 2011 of aggravated indecent assault under section 66(1)(a) of the Criminal Law Code. He was sentenced to 12 months imprisonment of which 6 months was suspended for 5 years on condition of good behavior. The matter came on review after the accused had already served his sentence.
1. The conviction of the accused person is quashed and the sentence is set aside. 2. The matter is remitted to the magistrate's court for the prosecution to prefer proper charges against the accused person before a competent court. 3. The said court shall have regard to and credit the accused with the sentence that he has already served in assessing an appropriate sentence.
Where a magistrate convicts an accused of an offence that carries a penalty beyond the magistrate's jurisdictional limits, the conviction is improper and must be set aside on review. In sexual offence cases, magistrates must carefully consider the elements of the offence charged and whether those elements are proved by the facts, particularly regarding penetration for purposes of distinguishing between different sexual offences. Where the facts do not support the main charge but support a competent verdict for a lesser included offence, the court should convict of that lesser offence. Failure by a trial magistrate to apply her mind to the charge and facts amounts to a failure of real and substantial justice warranting setting aside the conviction and sentence on review. Time is of the essence in review proceedings, and delays in the review process that result in an accused serving an improper sentence before the reviewing judge can intervene constitute a serious injustice.
The court observed that there is a pressing need for strict compliance with time limits for submitting records for review, as provided in the relevant Act. The court reiterated remarks made in S v Mhondiwa HB-193-11 regarding the lack of diligence in transmitting records for review, emphasizing that the reviewing judge and trial magistrate serve the same purpose of ensuring justice is done and accused persons receive fair treatment. The court noted that it is undesirable for an accused person to serve the whole or a substantial part of a sentence he does not deserve while the record remains in transit between the courtroom and the judge's chambers. The court expressed regret at having to repeat these observations. The court also observed that, considering the accused was a youthful first offender, had the proceedings been properly conducted it is very likely he would have benefitted from the provisions of section 67 of the Criminal Law Code and received a sentence other than imprisonment.
This case is significant for emphasizing the importance of jurisdictional competence in criminal matters, particularly in sexual offences. It illustrates that magistrates must carefully consider whether they have jurisdiction based on the potential penalties attached to offences. The case also highlights the critical importance of timely review processes in criminal proceedings to prevent accused persons from serving sentences that may be excessive or improper. The judgment reinforces the principle that reviewing judges and trial magistrates form a 'tag team' to ensure justice is done and accused persons receive fair treatment. It demonstrates the court's willingness to intervene on review where there has been a failure to apply judicial mind to the facts and applicable law, even after sentence has been served. The case also addresses the doctrine of competent verdicts in criminal proceedings.