IN
THE HIGH COURT OF SWAZILAND
CRIM.
CASE
NO.73/98
In
the matter between:
REX
VS
MAJAHA
MNISI MATOLO MAKHANYA
CORAM
: MASUKU J.
For
the Crown : MR J.W. MASEKO
For
the Accused : Both in Person
JUDGEMENT
ON SENTENCE
26/5/00
Both
of you have been found guilty of having committed the crimes of rape
and housebreaking and theft. This has been so, notwithstanding your
respective pleas of not guilty.
In
arriving at an appropriate sentence, the Court must take into account
what is in legal parlance referred to as the "triad",
consisting of three competing interests: - that of the accused, the
society and the nature of the offence committed.
The
factors that I will take in favour of Accused 1 are that he is a
first offender and has a two-year-old child which stays with the
mother. Accused 1 also asked the court to consider that his mother is
dependant upon him, following the demise of his father and further
requested the Court to blend the sentence that it will be minded to
impose with leniency.
Accused
2, on the other hand asked the Court to consider that he is a first
offender and that he has four minor children, the youngest which is
four (4) years old. He stated, regarding the children that they may
no longer be attending school due to his incarceration. The Court was
2
further
requested to consider that this accused person is the only male child
of his family and that his parents are now an elderly couple with
very little or no energy to be engaged in gainful employment.
Jones
J., in the case of S v QAMATA 1997 (1) SACR 480 at 499 expressed the
following view regarding the considerations to be taken into account
on sentence:-
"It
is now necessary for me to pass sentence. In doing so, it is proper
to bear in mind the chief objects of punishment, namely, retribution,
the prevention of crime, the deterrence of criminals, and the
reformation of the offender. It is also necessary to impose a
sentence which has a dispassionate regard for the nature of the
offence, the interests of offender, and the interests of the society.
In weighing these considerations I should bear in mind the need-
(a) to
show an understanding of and compassion for the weaknesses of human
beings and the reasons why they commit serious crimes, by avoiding an
overly harsh sentence;
(b) to
demonstrate the outrage of society at the commission of serious
crimes by imposing an appropriate, and, if necessary, a severe
sentence; and
(c) to
pass a sentence which is balanced, sensible, and motivated by sound
reasons and which will therefore meet with the approval of the
majority of law abiding citizens. If I do not, the administration of
justice will not enjoy the confidence and respect of society. "
I
now intend translating the above guiding remarks into reality. As a
preface, it is my duty to state that the crimes of which you were
convicted are serious. Rape is an innately degrading and dehumanising
crime, the effects of which can hardly be quantified. It violently
robs the victim of her self-esteem, self worth and drains her
confidence. It constitutes a flagrant violation of the woman's
femininity and relegates her to an object, devoid of feeling and
entirely lacking in her God-given right to say "no".
3
To
rape a woman in a forest or some other deserted place is a terrible
affront to her dignity and is a reprehensible offence. But to break
into the last place of her security, unlocking or destroying the
safety gadgets thereat installed just to gratify your sexual
appetites is worse and inexcusable. If people's houses will be broken
down, their property vandalised, their sense of security and their
persons violated, surely, the Courts must stand up and defend the
defenceless, be a voice for the voiceless and inflict heavy
punishment on behalf of those who are less endowed in terms of
physical strength.
This
is exactly what you did. You raped these young women right inside
their place of refuge, in the cleft of their rock, as it were, and
under the blade of open knives. You raped them in the presence of
children with nonchalant disregard for their integrity and privacy.
Rape has now assumed crisis proportions in Swaziland. Rape statistics
are alarming. The women look to the Courts to be their buffer and
restraining force in face of the violent onslaught by predators like
you.
Housebreaking
and theft is another scourge to this Kingdom. Countless people, who
have toiled for long to obtain their valuable possessions, have lost
that property at the hands of your compatriots in a matter of a few
minutes. That they expend extra money to install extra safety gadgets
is no deterrent to you. With stealth and undaunted resolve, you march
into people's houses knowing full well that they are inside and you
subject them to torture of all sorts. People have now virtually
become prisoners in their own houses because of people like you. In
this case, some of the property you stole was not recovered and the
doors you broke have had to be replaced or repaired at some cost.
Your
circulation in society jeopardises public security in at least two
respects and two panic buttons are activated when you are not in
custody. Firstly, people's property is not safe. Secondly, women are
an endangered species. I will mete out sentences that reflect the
society's outrage at your newfound but dangerous vocation, which
sentences will be blended with mercy.
Accused
1 will be sentenced to ten (10) years imprisonment on Count 2 and to
five (5) years on Count 3, two years of which will be suspended for
three years, on condition that you are not, during the period of
suspension found guilty of a crime of which theft is an element.
These sentences be, and are hereby ordered to run consecutively, with
effect from the 28th July, 1998, the date of your arrest.
4
Accused
2 will be sentenced to ten (10) years imprisonment on Count 1 and to
five (5) years imprisonment on Count 3, two years of which will be
suspended for 3 years, on the condition that you are not found guilty
of a crime of which theft is an element during the period of
suspension. Both sentences be and are hereby ordered to run
consecutively with effect from the date of your arrest namely 15th
August 998, and it is so ordered.
The
exhibits are to be returned to PW 3 Mr Sisimo Sihlongonyane.
T.S.
MASUKU
JUDGE
