THE HIGH COURT OF SWAZILAND
the matter between:
THE CROWN: MR. S.
THE ACCUSED: IN
On the 4th
day of February, 2011, the
accused named herein was convicted by the Senior Magistrate in Piggs
Peak Magistrate's Court for the offence of rape.
The accused pleaded not guilty and at the conclusion of the trial in
which the accused was not represented, and in which he gave evidence
upon oath, the Magistrate found him guilty of the crime of rape with
The Magistrate having found the accused deserving of greater
punishment than he was empowered to inflict has accordingly invoked
the provisions of Section 292 (1) of the Criminal Procedure and
Evidence Act 67 of 1938 as amended and committed the accused to the
High Court for sentencing.
However, before arriving at my sentence, I deem it necessary at this
stage to comment on the charge which was put to the
It reads as follows:
accused person is charged with the offence of Rape. In that upon or
about 04.08.2010, and at or near Buhleni area in the Hhohho region,
the said accused person, an adult male, did intentionally have
unlawful sexual intercourse with one N M and
incapable in law of consenting to sexual intercourse and
did thereby commit the said crime of Rape, (underlining mine)
further notice that this rape is accompanied by aggravating
circumstances as envisaged by Section 185 bis of the Criminal
Procedure & Evidence Act 67/1938 in that:
the commission of the offence the accused did not use a condom
thereby putting the complainant at risk of contracting sexual
transmitted diseases and infections."
It is apparent from the above charge which was put to the accused
that the age of the complainant has not been stated. However, it is
in evidence from the testimony of PW3 Siphiwe Mhlanga, who is the
complainant's mother, that the complainant was born in the year 1992.
Also, Exhibit A, which is the medical report, reflects the "apparent
age" of the complainant as "14." Since the prosecution
has alleged that the offence of rape took place on the 4 day of
August 2010, it follows that, at the time of the commission of the
offence, the complainant was well above the age of 12. Therefore, the
issue of being incapable
in law of consenting to sexual intercourse did
Nonetheless, I am of the considered view that the omission in failing
to state the age of the complainant on the charge sheet has not
vitiated or occasioned any miscarriage of justice and I find that the
accused was rightly convicted of the offence of rape with aggravating
In mitigation the accused pleaded for leniency and he stated that he
is still young and he would like to pursue his studies. He also told
the Court that he lives with his aged grandmother whom he looks
In fashioning the appropriate sentence for the offence for which the
accused has been convicted I am mandated as the sentencing Judge to
consider, inter alia, the following factors:
circumstances of the offence
circumstances of the offender
public interest See the case of Mfanasibile
Gule v The
King Criminal Appeal No. 03/2011.
It is the seriousness of the offence of rape, particularly one with
aggravating circumstances, that warrants the imposition by the Courts
of a minimum mandatory sentence of nine years without the option of a
fine under Section 185 bis of the Criminal Procedure and Evidence Act
67/1938 as amended.
In the case of Paul
Dlamini v R 1982 6 SLR part
2 at 411, Hannah CJ
had this to say:
rape is regarded by parliament, by the Courts and by society as a
whole as a very grave offence………….
rape involves a severe degree of emotional and psychological trauma,
in effect obliterating the personality of the victim.
the physical consequences of rape are of differing severity,
including the fear of venereal disease or pregnancy.
rape is also particularly unpleasant because it involves such
intimate proximity between the offender and the victim.
rape involves abuse of an act which can be a fundamental means of
expressing love for another, to which considerable value is
In passing sentence in this present case, I have taken into
consideration the pronouncements of Hannah
C J as outlined
above. I have also considered all the mitigating factors put forward
by the accused. However, I am of the view that the offence committed
by the accused was a very serious one in that the accused Sandile
Mtsetfwa chose to rape a school girl in the forest and the said
offence of rape was accompanied by aggravating circumstances.
In the circumstances, I am of the firm view that I should mete out a
sentence on the accused that would send out a strong signal to other
would be offenders. The accused is hereby sentenced to 12 years
imprisonment without the option of a fine.
said sentence is backdated to the date of the arrest of the accused
is hereby so ordered.
OF THE HIGH COURT