IN THE HIGH COURT OF SWAZILAND
HELD AT MBABANE REVIEW CASE NO.06/10
District Record No.HLA 258/08
THE KING
VERSUS
THUTHUKANI NDUMISO FAKUDZE
Date of consideration: 20 April, 2010
Date of judgment: 3May, 2010
MASUKU J.
[1] The above accused person, a 19 year old juvenile, had been arraigned before the Shiselweni Magistrate’s Court on a charge of rape. He was found not guilty of the said offence but of contravening the provisions of section 3 (1) of the Girls and Women’s Protection Act 39, 1920, (hereinafter called “the Act), for having carnal connection with a girl below the age of 16 years. He was sentenced to two years’ imprisonment without the option of a fine.
[2] The case now serves before this Court on automatic review. It would seem to me, on a perusal of the record, that the trial Court was eminently correct in acquitting the accused of the offence of rape and further finding him guilty under the aforesaid Act. This is plainly so because the complainant was proved in evidence to have been 12 years old but according to the accused’s uncontested evidence, she informed him that she was 14 years of age.
[3] The issue that arises, in my view, relates to the propriety of the sentence eventually imposed by the trial Court. I raise this issue particularly in the light of a few important features attendant to the case which I intend to enumerate below.
[4] First, the accused is a minor, a juvenile of 19 years. Second, the complainant was about 12½ years at the commission of the offence. According to the accused, she had told him that she was 14 years old. In the circumstances, the accused would have been about 5 or so years older than the victim. Third, the medical report did not support a case of full penetrative sexual intercourse as the hymen was said to have been intact with three “small perforations noted” by the doctor who examined the complainant.
[5] Fourth, and I mention this merely for purposes of emphasis, not in any way to cast aspersions on the trial Court’s findings, whatever sexual intercourse took place was correctly found by the trial Court to have been consensual. This in my view, becomes important regarding the proper sentence to impose, regard being had to the provisions of section 3(1) of the Act in particular.
[6] It must not be forgotten that the Act was primarily promulgated to protect and promote the bodily integrity and sexual purity of girls under 16 years, together with the class inelegantly referred to in the Act as female idiots and imbeciles. With regard to the former, it is my considered opinion that the Act was designed particularly to arrest the incidences of predatory old and mature men taking advantage of nubile, innocent and impressionable girls below the age of 16, who could fall prey to the expensive and attractive gadgets, ornaments, cash and other paraphernalia that could be given to them in exchange for sexual exploitation by the aforesaid men.
[7] In this regard, whilst younger males may be punished if they cause an infraction of this Act, the sentences in their cases, considering the minor age difference, should influence the sentencing regime in such a way that the sentencing alternatives offered under the Act must be given more weight as opposed to custodial sentence.
[8] Section 3 (1) reads as follows:-
“Every male person who has unlawful carnal connection with a girl under the age of sixteen or who commits with a girl under that age immoral or indecent acts or who solicits or entices a girl under such age to the commission of such acts shall be guilty of an offence and liable on conviction to imprisonment not exceeding six years with or without whipping not exceeding twenty-four lashes and with or without a fine not exceeding one thousand emalangeni in addition to such imprisonment and lashes.”
[9] What becomes plain is that any male person who is found to have contravened this Act, subject of course to the defences stipulated in the first proviso to section 3 (3), is to be sentenced to imprisonment not exceeding six years. In the circumstances, the Court may also stipulate a sentence of whipping together with a fine in addition to and not in substitution of the custodial sentence. That this is to be so is in my view apparent from the words occurring at the tail end of the sub-section, namely “in addition to such imprisonment and lashes.”
[10] This being a matter before me on automatic review, I will not in this instance deal with the constitutionality of the sentence prescribed hereunder in case where the accused persons are children and juveniles. All that I am prepared to say is that in view of their age as minors, the Court’s sentence should invariability be skewed towards a fine or other appropriate sentences as opposed to a custodial sentence. The sentence of whipping has, far from 1920, when this Act was passed, assumed a less colourful mode of sentencing, it being viewed in some cases as being unconstitutional. I will not address that issue herein for it does not arise.
[11] In the instant case, it would appear that the Court a quo, not- withstanding that the accused was a minor, did not consider flavouring the custodial sentence with a fine, so as to reduce whatever impact a custodial sentence may have on a convicted minor. In this regard, and due consideration being given to the issues enumerated in paragraphs [4] to [6], above, it is my considered opinion that the sentence imposed should be interfered with. See generally the comments in R v Mfanizile Mphicile Mndzebele Criminal Trial No. 213/07 (unreported), regarding the sentencing trend in respect of children and juveniles.
[12] There is one other issue deserving comment in this case. The Court ordered the two year sentence “to be backdated to the date on which accused was arrested”. See page 73 of the record. The date was not specified. More ominously, the warrant of committal itself does not mention that date. It is in actual fact blank.
[13] One then wonders, in premises, how an accused person is admitted in a correctional institution when the sentence is so nebulous and indeterminate. How long will the accused be kept and when will the Correctional Services know that it is time to release him when the judgment is silent on the exact date regarding the ante-dating of the sentence?
[14] This is most unsatisfactory. It is the duty of the sentencing Court to stipulate all the necessary information and detail regarding a sentence imposed by it. This will then be transplanted, so to speak, to the warrant of committal. Matters of sentencing have an effect on the convict’s right to liberty. The nature and duration of a sentence, particularly of imprisonment, are matters that must be clearly set out in the judgment and must not be subject of surmise, debate or doubt.
[15] A reviewing or appellate Court must not be left to grope in the dark in its quest to determine a sentence imposed; when it was to run and possibly end. This is so because an appellate or reviewing Court may, in assessing the propriety of the sentence, consider the pre-trial incarceration. This becomes an impossible feat in the present circumstances. If the date of arrest is not in evidence, the prosecution normally has an investigation diary that invariably records the date of arrest which the accused can be in a position to confirm.
[16] I specifically record that there is nothing in the Act that or in the Criminal Procedure and Evidence Act, 1938 that precludes this Court or the trial Court for that matter, from imposing a suspended sentence in such matters on stipulated conditions. Even if that were the case, I would for the reasons set out in the Mfanizile Mphicile Mndzebele case (supra), hold that the fettering of the Courts’ discretion in so far as it pertains to minors, is unconstitutional.
[17] In the instant case, having ascertained from the trial Court after a special enquiry that the date of the accused’s arrest was 28 December, 2008, I order the following:
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The conviction of the accused for contravening section 3 (1) of the Girls and Woman Protection Act, 1920, be and is hereby certified to be in accordance with real and substantial justice.
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The sentence of two (2) years’ imprisonment be and is hereby set aside and is replaced with the following:-
[18] The accused is hereby sentenced to sixteen (16) months’ imprisonment, which is reckoned to run from 28 December, 2008. This sentence, it will be seen, translates to the period he has already served in custody. Had the matter come for review earlier, I would, in all probability, have considered a lesser period of imprisonment, if not a different mode of sentencing altogether.
DONE IN CHAMBERS IN MBABANE ON THIS THE 3RD DAY OF MAY, 2010.
_____________________________
T.S. MASUKU
JUSTICE OF THE HIGH COURT
