S v FONGOQA AND OTHERS 2016 (1) SACR 88 (WCC)
Verdict — Accused entitled to verdict in respect of each count to which he pleads — Accused charged with two counts of rape, although committed multiple rapes — Magistrate convicting accused of only one count without indicating which count — Accused entitled to verdict on other count and in terms of s 106(4) of CPA entitled to be acquitted on that count.
The appellants were charged in a regional magistrates’ court with two counts of rape in contravention of s 3 of the Criminal Law (Sexual Offences and Related Matters) Act 32 of 2007. On the accepted evidence of the complainant, the appellants, together with another man, had committed multiple acts of rape. It was unknown why the prosecutor had chosen to formulate the charges in this manner but the court a quo gave a verdict on only one of those charges in respect of each of the appellants, despite them having pleaded to both charges. It was not clear whether that conviction was given on the first or second charge, although the overwhelming evidence would justify a conviction on both charges.
Held, that the appellants had to be given the benefit of this omission and, in correcting the error and after having regard to the provisions of s 106(4) of the Criminal Procedure Act 51 of 1977, the court could therefore only acquit the appellants on the other charge that they had not been convicted on. The appeals were dismissed in all other respects.