IN THE HIGH COURT OF SWAZILAND
REVIEW CASE NO. 26/10
In the matter between
MANCOBA MKHONTFO ACCUSED
 The Accused who was represented by Counsel, was convicted by the Hhohho Principal Magistrate, sitting in Mbabane, on the 29th April, 2010 on a charge of rape. The rape survivor was a 15-year-old girl. The accused was at the time of the commission of the offence, 20 years old and had attained the age of twenty-two years when he was sentenced.
 I have gone through the record of the proceedings in the court a quo, and save for the sentence that was imposed on the accused by the learned Principal Magistrate to which I shall revert presently, I am satisfied that the proceedings were in accordance with real and substantial justice. I therefore find that the conviction was justified and in order.
 The court a quo sentenced the accused to a term of imprisonment for 7 years (without the option to pay a fine). Three years of this period was, however, suspended for a period of 3 years on condition that the accused is not convicted of rape or any offence of which assault is an element committed during the period of suspension. Effectively, the accused was given an immediate custodial sentence of four years. The learned trial Magistrate also took into account, as he was enjoined to do, the fact that the accused had spent a full year in custody before he was released on bail.
 Rape, the offence for which the accused was convicted and sentenced is, together with MURDER AND ROBBERY and the attempt conspiracy and incitement to commit such offences, is listed in the third schedule in the Criminal Procedure and Evidence Act 67 of 1938 (as amended). S313 of the Act stipulates that no part or portion of a sentence in respect of such offences may be suspended. Plainly therefore the trial court was in error in suspending a portion of the sentence that was imposed on the accused. Vide Sandile Shabangu v R Criminal Appeal 15/07 delivered in 2007 (unreported), R v Gumede 1970-1976 SLR 424. The case of Stanley Makhakha Dlamini v R 1977-1978 SLR 66 was in my respectful judgement rightfully overruled in the case of Mngomezulu Sibusiso and Others v R 1987-1995 (3) SLR 179 at 183F-G. See also Mbhambali Sipho and Another v R 1987-1995 (4) SLR 116 at 118, Lucky Nhlanhla Khumalo v R High Court Criminal Appeal 19/2008 (unreported) and Jango Lontos Mkhavela v R High Court Criminal Appeal 3/2009 also unreported judgement delivered on the 20th August 2009. These cases were all reviewed and referred to by this court in R v Sabelo Dlamini Review Case No. 66/2009 judgement delivered on the 25th January 2010.
 It remains for me to consider whether in all the circumstances of this case and in particular the period already spent by the accused in custody, a sentence of seven years of imprisonment was fair and merited. Whilst, it may be argued that the trial court clearly meant or wanted the accused to undergo an immediate and effective custodial sentence of four years, it can not in my judgment be seriously argued that a conditionally suspended sentence is not a real and substantive sentence.
 The complainant was a young girl, aged 15 years. She was forcefully dragged into a bush by the accused before being raped. She was forced into submission on pain of being stabbed with a knife. When she cried out, as a result of the pain when being raped and in an attempt to alert would be passers-by of her situation and ordeal, the accused again produced the knife and threatened to stab her with it. It was neither alleged by the crown nor found by the trial court that the rape was accompanied by aggravating factors as defined in section 185 bis of the Act. This notwithstanding, this rape and rape in general, is a very serious case of violence and invasion of one’s privacy, bodily integrity and personality.
 Taking into account, the gravity of this offence, the age of the victim or survivor, the age of the accused and the period already spent in custody by the accused before sentence, the attendant violence and the prevalence of such offence particularly on the vulnerable and defenceless sections of our society and the prevailing sentencing patterns in this jurisdiction, a straight custodial sentence of seven (7) years is, in my view, fitting and appropriate.
 For the above reasons, the following order is made:
(a) The conviction of the Accused is confirmed.
(b) The sentence of seven years of imprisonment imposed on the accused is hereby confirmed, save that the suspension of the portion thereof is hereby set aside. The accused is to serve the sentence of seven (7) years of imprisonment.
 This judgement, and in particular this sentence is to be communicated by the trial court on the accused and prison authorities forthwith.