THE State V Knowledge Mutemagau

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                                                                              HH 462-18
                                                                           CRB MV431/18



THE STATE
versus
KNOWLEDGE MUTEMAGAU


HIGH COURT OF ZIMBABWE
FOROMA & CHITAPI JJ
HARARE, 17 May 2018


Review Judgment


       FOROMA J: The accused was charged with the crime of indecent assault as
defined in s 67 of the Criminal Law Codification and Reform Act [Chapter 9:27]. The
facts relied upon in the outline of the state case were that the accused, a 30 year old
neighbour of the complainant, a married woman aged 22 years old, went to the
complainant at her field where she was working alone and proposed love to her. The
complainant turned down the proposal. Accused advanced towards the complainant who
moved away from him. This did not deter the accused who chased the complainant,
tripped and felled her down. He got on top of her, pulled up her skirt and proceeded to
unzip his trousers. As he pulled up her skirt, the complainant was crying for help.
Fortunately for the complainant her vicious dog came to her rescue in that it attacked the
accused and pulled him by his shirt giving complainant an opportunity to free herself
from the accused and flee from her assailant. Complainant reported the offence to her
husband on his return home from work.
       The accused was duly convicted and sentenced to twelve months imprisonment
with 6 months of the sentence suspended for 3 years on the usual conditions of good
behaviour. The accused’s record came before the regional magistrate for scrutiny as a
result of which the regional magistrate raised issue with the propriety of the charge taking
into account the factual averments in the charge sheet as read with the state outline. The
regional magistrate considered that the most appropriate charge was a charge of
attempted rape and not indecent assault but the trial magistrate held a different view. In
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his response to the query as to the propriety of the charge, the trial magistrate whilst
acknowledging the facts as outlined above, reasoned and responded to the query as
follows and that he considered that accused’s actions had not yet I quote the response
extensor, “From the reading of the charge sheet and facts my understanding was that
accused’s action had not yet reached the commencement of the execution of the intended
crime. This is because, though accused was indeed on top of complainant unzipped his
trousers and pulled her skirt accused did not produce his penis neither did he remove or
set aside complainant’s pant ready to effect penetration.” As a result of the trial
magistrate’s reasoning which the regional magistrate did not agree with, guidance on
what was the most appropriate charge was sought from a judge of this court.
       In terms of s 189 (1) (a) of the Criminal Law (Codification and Reform) Act
[Chapter 9:23] any person who, intending to commit a crime whether in terms of this
Code or any other enactment does or omits to do anything in preparation for or in
furtherance of the commission of the crime shall be guilty of attempting to commit the
crime concerned. The factual conspectus in this matter discloses that accused made
advances to the complainant, i.e. proposed love to complainant which was turned down.
This was followed up with accused chasing complainant whom he tripped and she fell
down. He got on top of her, pulled up her skirt and unzipped his trousers before the
complainant’s dog came to the rescue of its master. The clear intention of the accused
was to engage in forced sexual intimacy with the complainant. There can be no other
reasonable inference to be drawn on the facts of this matter where the accused trips a
woman down and goes on top of her and pulls up her skirt before proceeding to unzip his
trousers. In R v Schoombie 1945 AD 541 at 545-6 WATERMEYER CJ had the following
to say regarding attempts- “Attempts seem to fall naturally into two classes:
     1)         those in which the wrong doer intending to commit a crime has done
               everything which he set out to do but has failed in his purpose either
               through lack of skill, or of foresight or through the existence of some
               unexpected obstacle, or otherwise,
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     2)          those in which the wrong does has not completed all that he set out to do
                 because the completion of his unlawful acts has been prevented by the
                 intervention of some outside agency.”
          The conduct of the accused falls squarely into the second class as the completion
of his unlawful acts was prevented by the intervention of some outside agency namely the
rescue of the complainant by her dog which bit the accused and pulled him by his shirt
thus freeing the complainant who then took the opportunity to escape from the assailant.
See also State v Benatar 1984 (3) SA 588 (Z) per GUBBAY J.
          In the circumstances the most appropriate charge should have been contravention
of s 65 as read with s 189 of the Code. It follows that the proceedings in this matter are
not certifiable as being in accordance with real and substantial justice and the regional
magistrate’s observation was therefore correct.




CHITAPI J ……………………. I agree