The State v Fanuel Ncube

### Preamble
1
HB 112/25
HCBCR 2878/25
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THE STATE

versus

FANUEL NCUBE

HIGH COURT OF ZIMBABWE

MUTEVEDZI AND NDLOVU JJ

BULAWAYO, 25 JUNE 2025

Criminal Review Judgment

MUTEVEDZI J: 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. I thought it elementary that the first thing a magistrate must ask himself/herself about a case brought before him/her is whether or not he/she has the necessary jurisdiction because without it, one cannot not take a step forward.

The accused was arraigned before the court of a provincial magistrate at Gweru on a charge of attempted rape as defined in section 189 as read with section 65 of the Criminal Law (Codification and Reform) Act, [Chapter 9:23] (“the CODE”). The allegations were that on the 9 April 2025, in Nkani Village, Chief Bunina, Lower Gweru the accused attempted to have sexual intercourse with the complainant without her consent. The accused pleaded guilty to the charge and was duly convicted. He was sentenced to 5 years imprisonment of which 2 years imprisonment was suspended for 5 years on condition he does not within that period commit any offence of a sexual nature for which he will be sentenced to imprisonment without the option of a fine.

For starters, a provincial magistrate has no jurisdiction to try a case of attempted rape. In the case of S v Kamudzandu HH-215-17 at p.3 of the cyclostyled judgment MUREMBA J remarked that: -

“It is interesting to note that in terms of section 192 of the Criminal Law Code for attempting to commit any offence, the punishment is the same as the one that is imposed on an accused who has committed the offence concerned. This penalty came about as a result of the codification of the criminal law in 2004. The section states:

“Subject to this Code and any other enactment, a person who is convicted of incitement, conspiracy or attempting to commit a crime shall be liable to the same punishment to which he or she would have been liable had he or she actually committed the crime concerned.”

Put differently, a conviction of attempted rape attracts the same penalty as a conviction of rape. This means that it is possible for an accused to be sentenced to 20 years imprisonment for a conviction of attempted rape. It all depends on badness of the case. What is considered are the circumstances surrounding the commission of the offence, the mitigatory factors and the aggravatory factors all put together.”

Put bluntly, the sentences for rape and attempted rape are the same.  Section 65(1) of the CODE provides that a person found guilty of rape shall be liable: -

if the crime was committed in aggravating circumstances as described in subsection (2) (that is to say if there is a finding adverse to the accused on any one or more of those factors), to life imprisonment or any definite period of imprisonment of not less than fifteen years; or

if there are no aggravating circumstances to a period of not less than five (5) years and not more than fifteen years.”

It must follow therefore that where a court convicts a person of attempted rape, it cannot ignore the same sentencing pattern which is used to determine a sentence for a rapist. That entails assessing and determining whether or not the attempt to rape was committed in any aggravating circumstance. The same factors used in an actual rape apply. Those are as listed in s 65 (2) and they are as follows:

a. “The age of the person raped

b. The degree of force or violence used in the rape

c. The extent of physical and psychological injury inflicted upon the person raped

d. The number of persons who took part in the rape

e. The age of the person who committed the rape

f. Whether or not any weapon was used in the commission of the rape

g. Whether the person committing the rape was related to the person raped in any of the degrees mention in subsection (2) of s 75

h. Whether the person committing the rape was the parent of guardian of, or in a position of authority over the person raped

i. Whether the person committing the rape was infected with a sexually transmitted disease at the time of the rape”

Where the conclusion is drawn that the attempted rape occurred in aggravating circumstances, the mandatory minimum 15 years imprisonment must be imposed. Needless to state, it is only the court of a regional magistrate which has the jurisdiction to impose such a penalty. Both the Magistrates Court Act [Chapter 7:10] and the CODE do not clothe a provincial magistrate with extended jurisdiction in sexual offences. If the attempted rape was not committed in aggravating circumstances, the attempted rapist can be sentenced to anything from 5 years to 15 years imprisonment.  Once again, such sentences clearly demonstrate that a provincial magistrate, whose sentencing jurisdiction in such offences is a maximum 5 years imprisonment has no power to preside over a case of attempted rape.

In the instant case, the attempted rape was not only bad but was equally brazen. The offender was dangerous and daring. He tripped a 40-year-old woman in broad daylight and attempted to remove her skirts. He strangled the complainant and threatened her with an okapi knife. When he realized that his attempt to rape was not yielding any results, he demanded cash from the complainant, who only survived both the rape and the robbery because of the emergence at the scene of two men who assisted her. Given that violence, the inescapable conclusion is that the attempted rape was committed in aggravating circumstances and warranted a punishment of not less than 15 years imprisonment. Where a court, such as in this case, proceeds to impose a sentence after a conviction of rape or attempted rape without determining the question of the existence or otherwise of aggravating circumstances, it commits a gross irregularity which vitiates the sentence. The trial magistrate’s failure to make that finding led him to imposing an incompetent sentence.

Even imagining for once that the attempted rape had not been committed in aggravating circumstances, the sentence imposed was still incompetent for the further reason that it is impermissible to suspend a portion or the whole of a sentence where an enactment prescribes a minimum mandatory sentence. Further, in many of its judgments, this Court held that it is irregular to suspend a portion or the whole of a sentence where an enactment provides for a minimum mandatory penalty. Generally, a court has power to suspend a portion or the entirety of any prison term it would have imposed on an offender by virtue of s 358 (2)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07] (“the CPEA”). There is however a limitation to that power in relation to certain specified offences. Section 358(2)(b) of the CPEA provides that:

“(2) When a person is convicted by any court of any offence other than an offence specified in the Eighth Schedule, it may-

(a)…

(b) pass sentence, but order the operation of the whole or any part of the sentence to be suspended for a period not exceeding five years on such conditions as the court may specify in the order;”  (own emphasis)

A court may therefore only suspend a sentence in any case which is not listed under schedule 8 to the CPEA which is couched in the following terms:

“EIGHTH SCHEDULE (SECTION 358)

OFFENCES IN RELATION TO WHICH POSTPONEMENT OR SUSPENSION, OR DISCHARGE WITH CAUTION OR REPRIMAND, IS NOT PERMITTED

Murder, other than the murder by a woman of her newly born child.

Any conspiracy or incitement to commit murder.

Any offence in respect of which any enactment imposes a minimum sentence and any conspiracy, incitement or attempt to commit any such offence” (own emphasis)

Attempted rape is an offence which is listed in schedule 8 because rape attracts a mandatory minimum penalty. In S v Wallace Kufandada and Anor HH 233/24 at p. 12 of that judgment, MUREMBA J commenting on the amended s 65 acknowledged that:

“Put differently, the amendment creates a minimum mandatory sentence of fifteen years imprisonment for rape committed in aggravating circumstances and a minimum mandatory sentence of five years and a maximum of fifteen years’ imprisonment for rape committed in non-aggravating circumstances.”

See also the case of S v Banele Sibanda HB 176/24 for the same proposition.

The trial magistrate could not have therefore suspended a portion of the 5 years imprisonment like he did in this case. He did. By doing so, he once more committed a gross irregularity warranting me to interfere with the sentence imposed. I must vacate it because it is not in accordance with real and substantial justice. But the dilemma I am presented with is what to do with the proceedings thereafter. I cannot remit the proceedings to the trial magistrate because, as alluded to earlier, he has no power to sentence the offender. And because there is no sentence which was passed by the court aquo, this Court cannot possibly substitute it with any other penalty. The only option available is to remit the matter to the trial magistrate and direct that he proceeds in terms of s 54 (2) of the Magistrates Court Act [Chapter 7:10]. See the cases of The State v Mpofu HB 126-09; and S v Praise Ncube HB 6-24. In the premises, I direct as follows:

The accused’s conviction be and is hereby confirmed as being in accordance with real and substantial justice

The sentence imposed by the court aquo be and is hereby set aside

The matter is remitted to the trial magistrate for him to proceed in terms of section 54 of the Magistrates Court Act [Chapter 7:10].

MUTEVEDZI J……………………………….

NDLOVU J…………………………………Agrees