IN THE HIGH COURT OF SWAZILAND
HELD AT MBABANE CRIMINAL TRIAL NO. 235/08
In the matter between:
MGEGEMBA BHENJAMIN DLAMINI
CORAM MCB MAPHALALA, J
FOR CROWN MS N. HLOPHE
FOR DEFENCE ACCUSED IN PERSON
29TH JUNE 2010
 The accused is charged with Rape in that upon the 6th November 2006 and at Mavukuthu Area in the Shiselweni Region he intentionally and unlawfully had sexual intercourse with Tengetile Manana, a minor aged thirteen years without her consent.
 The Crown further contends that the crime committed was accompanied by aggravating factors as envisaged by Section 185 (bis) of theCriminal Procedure and Evidence Act No. 67 of 1938 in that:
The accused broke into the complainant’s house and raped her in the sanctity of her home;
The accused harassed the complainant and her siblings before raping her threatening to stab them to death;
The accused raped the complainant in full view of her siblings thus subjecting her to secondary trauma and humiliation;
The accused was known to the complainant and her family as a neighbour and family friend thus abusing the trust held by the family on him including the complainant.
At the time of the rape the complainant was a minor aged thirteen (13) years old.
The accused did not use a condom thus exposing the victim to sexually transmitted diseases and H.I.V. Aids infection.
 The accused pleaded not guilty to the charge. The complainant who was PW1 told the Court that she stays with her grandmother at Nhlambeni area in the Manzini region, her father died and her mother is married to another man and stays somewhere in the Hhohho region. She attends Grade V at Nhlambeni Primary school. In 2006 she was staying with her grandfather at Bhanganoma Area in the Shiselweni region together with Tengetile Sangweni, Sandile Manana and Nokwanda Manana. She was thirteen years old at the time and was the eldest of the three children.
 On the previous day, the accused came to their home with their grandfather and proceeded to drink alcohol; the accused touched her buttocks as well as her private parts several times. Her grandfather Sangweni warned the accused against the habit. The accused only stopped for a short time and started fiddling with her again.
 On the 6th November 2006 she was sleeping in their house with Ngeti Sangweni, Nokwanda and Sandile Manana. They heard noise on the window; she was sleeping on the bed with Ngeti Sangweni. The two other children were sleeping on the floor when they heard the noise; they hid themselves underneath the bed.
 She told Ngeti Sangweni to lit a match and in the process they identified the accused. He threatened Ngeti Sangweni with stabbing if she persisted lighting the matches. He asked to sleep on the bed between them; they refused and he then threatened to stab them.
 He took off her trouser, shirt and panty. He asked for their names and they gave him false names. He asked her if she knew how to make a baby; she replied to the negative, then he told her that he would show her how a baby was made. He had sexual intercourse with her without her consent and without using a condom. When he had finished, he covered them with blankets and warned them not to look at him otherwise he would stab them with the okapi knife he was carrying.
 He hit each of them with the knife on their forehead, then he left. She never consented to sexual intercourse with the accused. She positively identified the accused in Court; and she knew him very well.
 Their grandfather was not present at home on the day in question, hence, they could not report the incident to him. They went to a neighbouring Simelane homestead and reported the incident to Elda Simelane who allowed them to spend the night at her homestead. In the morning Elda Simelane notified another neighbour Sarah Mabuza of the incident. They stopped a police van that was driving through the area and reported the incident.
 The police asked Sara Mabuza to inspect her to confirm that she was raped. After she had confirmed the rape, the police took her and Sarah Mabuza to Hlatikulu Government Hospital where she was examined by a doctor and treated. Thereafter, she recorded a Statement with the police.
 She confirmed that she was a virgin before the accused raped her. She also identified the knife in court which the accused was carrying on the day in question.
 She maintained her evidence under cross-examination and further described the clothes which the accused was wearing when he committed the offence; it was a black pair of trousers, a black shirt, white tekkies and a white hat.
 PW2 Dr.Nkosinathi Ncube, based at Hlatikulu Government Hospital testified that on the 7th November 2006, he examined the complainant and later compiled a Report; his findings were that there was injury on the hymen. He handed a Medical Report which was admitted in evidence and marked Exhibit 1. The accused did not cross-examine him. In his report, the doctor further stated that he could not rule out full penetration. However, no spermatozoa was found in the specimen; she was H.I.V. negative. He further confirmed that she was not sexually active and the examination of her vagina was painful.
 PW4 Ngeti Sangweni corroborated the evidence of PW1 in all material respects. She positively identified the accused in Court as well as the knife he was carrying. Under cross-examination, she described the clothes which the accused was wearing on the day in question.
 PW4 Elda Simelane corroborated the evidence of PW 1 and PW3 in all material respects. She further identified the accused in Court.
 PW5 Phesis Manana is the paternal grandmother of PW1. She testified as to the age of PW1; handed to Court an “acknowledgement of Birth Certificate” in the absence of her birth Certificate. It was admitted as Exhibit 2. She told the Court that the parents of PW1 did not collect her “birth certificate” at the Government offices at Hlatikhulu. Her father died and her mother was now married to another man with whom they reside as husband and wife.
 PW6 Bhejane Dludlu is a community police; he testified that on the 7th November 2006 he received a report of the commission of the offence; he inturn reported this to the police who asked him to assist them to apprehend the accused. This witness together with four other community police apprehended the accused and handed him over to the police; prior to this, they searched him and found a knife. The knife was also handed over to the police. The accused had admitted committing the offence. He identified the knife in Court. Under cross-examination, this witness re-iterated that they arrested the accused because he had admitted committing the offence.
 PW7 D/Sgt. Mselewamanzi Ndzimandze testified receiving a report of this rape case, and, that upon investigation, they discovered that the accused was the prime suspect; he further corroborated the evidence of PW1, PW2, PW3, PW4 and PW6. He handed the knife as an exhibit and it was marked Exhibit A; he identified the knife in Court. He further told the Court that the accused upon arrest had admitted committing the offence and alleged that he was under the influence of liquor.
 The accused gave evidence under oath and denied committing the offence. Under cross-examination, he failed to give reasons why the Crown witnesses implicated him in the commission of the offence. However, he conceded that Crown witnesses knew him very well.
 The evidence proves beyond reasonable doubt that sexual intercourse between the accused and the complainant did take place. The evidence of PW1 is corroborated in this respect by that of PW 2, PW3, PW4, PW6 and PW7. The learned author Hunt, theSouth African Criminal Law and Procedure, Volume 2, Second Edition, Juta 1982, atp.440 states the following:
“There must be penetration, but it suffices if the male organ is in the slightest degree within the female body. It is not necessary in the case of a virgin that the hymen should be ruptured, and in any case it is unnecessary that semen should be emitted…..”
 The Crown has further proved the absence of consent to sexual intercourse. The accused does not raise the issue of consent but makes a bare denial.
 The identity of the accused is not in issue. PW1 and PW3 testified that when the accused entered the house through the window, PW3 lit a match, and, they were able to identify the accused. They knew the accused very well, and, this has been confirmed by the accused himself.
The accused is convicted as charged.
 The indictment alleges aggravating factors against the accused in accordance with Section 185 bis of theCriminal Procedure and Evidence Act. These factors appear in paragraph 2 above.
 The crime of Rape is a very serious offence and is highly prevalent in this country. It does not only expose the victim to sexually transmitted diseases and H.I.V. and Aids infection but leaves the victim traumatised.
 In the appeal case of Sifiso Cornelius Ngcamphalala v. Rex Criminal Appeal No. 34/2003 atpage 4, Tebbutt JA stated:
“Rape is a crime of diabolical nature which offends the sensitivities 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 Court of Appeal as it then was confirmed a fifteen (15) year sentence against the appellant.
 In the Appeal Case of Mlamuli Obi Xaba v. Rex Criminal Appeal No. 7 of2007 atpages 5 – 6 theCourt of Appeal as it then was quoted with approval the Appeal of Cornelius Sifiso Ngcamphalala.
The Appeal Court confirmed a sentence of fifteen (15) years against the appellant.
 The accused in the instant case is a first offender and he has two minor children under his custody aged six years and four years respectively. In view of the seriousness of the offence, the fact that it is accompanied by aggravating factors as well as the prevalence of the offence, I sentence the accused to twelve years imprisonment without an option of a fine; the sentence will commence on the 29th June 2010.
JUDGE OF THE HIGH COURT OF SWAZILAND