IN THE HIGH COURT OF SWAZILAND
REV. CASE NO. 18/10
In the matter between
MANGALISO SAMSON MAZIBUKO ACCUSED
 The Accused herein, a 46 year old male, appeared before the Mbabane Senior Magistrate on a charge of rape. The Crown alleged that the offence was accompanied by aggravating factors or circumstances in that, inter alia, the rape victim or survivor was a minor and a step daughter of the accused and the rape had been committed over a long period of time.
 The accused pleaded not guilty to the charge. He conducted his own defence and at the conclusion of trial on the 5th March 2010, he was found guilty as charged. The court also found that the crime was indeed accompanied by aggravating factors. Because of this latter finding the court sentenced the accused to a term of imprisonment for 9 years. This sentence was ordered to run with effect from the 20th December 2009, that being the date upon which the accused was arrested by the police.
 The conviction of the accused finds ample justification in the evidence that was led by the crown. The accused admitted having had sexual intercourse with the complainant but sought to exonerate himself by alleging that the said sexual intercourse was consensual. This was, in my view rightly rejected by the court as the accused did not, amongst other things, deny that he had threatened the complainant with violence should she reveal it to anyone that he was sexually molesting her.
 In terms of Legal Notice No. 57 of 1988 “(2) Every Senior Magistrate shall, in respect of any criminal matter instituted on or after the coming into force of this notice, have jurisdiction to impose a sentence of imprisonment not exceeding 7 years or such fine as may, in accordance with law, be imposed.”
I am not aware of any other law that specifically increases the criminal jurisdiction of a senior magistrate regarding sentence. Section 185 bis (1) of the Criminal Procedure and Evidence Act 67 of 1938 stipulates that where an accused has been convicted of rape with aggravating circumstances, he shall be liable to a minimum sentence of 9 years without the option of paying a fine. These provisions, however, do not confer increased jurisdiction on a Magistrate regarding sentence. “It merely lays down the minimum sentence to be imposed on someone convicted on a charge of rape wherein aggravating factors are found to exist. Where a Magistrate, who does not have jurisdiction to impose the stipulated minimum sentence finds himself enjoined by the law to pass that sentence or a more severe sentence, he has to state that fact in his judgement and commit the accused to this court for sentence. If Parliament wanted to empower a Magistrate with jurisdiction to impose the stated minimum sentence or a more severe sentence it would have specifically said so. Words such as ‘notwithstanding any other law regarding the criminal jurisdiction of the court’ or words to that effect, are often used to express such legislative intent. No such words appear in Section 185 bis (1) quoted above.” (See Sanele Vilane and another, Reviews 55 and 57 of 2009, judgement delivered on 8th December 2009).
 In view of the above reasons, the senior Magistrate had no jurisdiction to impose the sentence of 9 years on the accused. His jurisdiction is limited to 7 years unless specifically stipulated in a particular piece of legislation. This sentence cannot stand. It is set aside. The conviction is, however, confirmed.
 The matter is remitted to the trial court to reconsider the issue of sentence. In the event the senior magistrate is of the view that a sentence of more than 7 years is merited, he has to state that view and his reasons for holding it and then commit the accused to this court for sentencing.