IN THE HIGH COURT OF SWAZILAND
HELD AT MBABANE CRIMINAL TRIAL NO. 383/09
In the matter between:
SITHEMBISO JEREMIAH KHOZA
CORAM MBC MAPHALALA, J
FOR CROWN MR. P. DLAMINI
FOR DEFENCE ACCUSED IN PERSON
9TH FEBRUARY 2010
 The accused was charged and convicted of the crime of
Rape in that in or about September 2008 and at or near Mafucula Area in the Lubombo region, he intentionally and unlawfully have sexual intercourse with Sithabile Magagula without her consent.
 The charge was accompanied by aggravating circumstances as envisaged by Section 185 bis of theCriminal Procedure and Evidence Act No. 67 of1938 in that:
The accused did not use a condom thereby putting the complainant at risk of contracting sexually transmitted diseases and infection.
The complainant was twelve (12) years at the time of commission of the offence.
The complainant was a virgin and the accused destroyed that virginity.
 After conviction, the magistrate who presided over the
trial transmitted the Record to the Registrar of the High Court for sentencing in accordance with the directive of the Chief Justice that where aggravating circumstances exist in rape cases, the Record should be transmitted to the High Court for sentencing. This directive is in accordance with Section 292 (1) of theCriminal Procedure and Evidence Act No. 67 of 1938.
This section provides:
“If on the trial by a Magistrate’s Court any person is convicted of an offence, the court, on obtaining information about his character and antecedents, is of opinion that they are such that a greater punishment should be inflicted for the offence than it has the power to inflict, such court may, for reasons to be recorded in writing on the record of the case, instead of dealing with him in any other manner, commit him in custody to the High Court for sentence.”
 Having gone through the Record, I am convinced that the
Crown was able to prove the commission of the offence beyond reasonable doubt. In addition, the Crown was able to prove the existence of aggravating circumstances as required by Section 185 bis (1) of theCriminal Procedure and Evidence Act No. 67 of1938; that Section provides as follows:
“A person convicted of rape shall, if the Court finds aggravating circumstances to have been present, be liable to a maximum sentence of nine years without an option of a fine and no sentence or part thereof, shall be suspended.”
 In arriving at the appropriate sentence, I will take into
account the personal circumstances of the accused and the interests of society; in particular, I will also take into account the prevalence of the crime of rape in this country. The Courts should mark their abhorrence of the prevalent and brutal sexual attacks on women and children as a deterrent. They can only do this by imposing appropriately stiff sentences.
 In the case of Mlamuli Obi Xaba v. Rex Criminal
Appeal No. 7 of 2007 at pages (Unreported), Banda C.J. had this to say:
“Rape is a very serious offence and is becoming very prevalent in the Kingdom and it is important that Courts should impose meaningful sentences that will attempt to reduce the incidence of rape in the country…. Rape is a crime of diabolical nature which offends the sensibilities of every normal decent human being more particularly where the victim is of such a tender age as the one in the present case. There has become a national crisis in this kingdom an instance of children of this age group being victims of rape are on the rise.
The courts have in such cases the responsibility to mete out stiff sentences which will send clear and unambiguous messages that society is disgusted by such behaviour. The rape is a humiliating, degrading and brutal invasion of the privacy, the dignity and the person of the victim. Women, more particularly small girls are entitled to the protection of these rights …. The sentence of fifteen years is not wrong in principle nor can it be described as shockingly harsh nor does it induce a sense of shock.”
 In the cases of Sandile Shabangu v. Rex Criminal
Appeal No. 15 of 2007, the Court confirmed a sentence of fifteen (15) years on the appellant convicted of rape of a girl of thirteen (13) years.
 In the cases of Sipho Lucky Fakudze Criminal Appeal No.
19 of 2008, the Court reduced a sentence of eighteen (18) years imposed by the High Court to fourteen (14) years imprisonment. The complainant was twelve (12) years old.
 In the case of Moses Gija Dlamini v. Rex Criminal
Appeal No. 4/07,the Court confirmed a sentence of twenty (20) years in a rape case involving a complainant of nine years.
 The accused has no previous convictions and was
seventeen years at the time he committed the offence; he raped the victim on two occasions in January and September 2008. In addition, the rape in this case is accompanied by aggravating circumstances as reflected in paragraph 2 above.
 In the circumstances, a sentence of fifteen (15) years
backdated to the date of arrest on the 30th October 2008 would be appropriate.
JUDGE OF THE HIGH COURT