THE HIGH COURT OF SWAZILAND
the matter between:
THE CROWN: MS.
THE ACCUSED: IN
On the 9th
day of March, 2011, the accused named herein was convicted by the
Senior Magistrate in Piggs Peak Magistrate's Court of three counts of
rape with aggravating circumstances.
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.
This case has now been brought before this Court for sentencing. In
mitigation the accused pleaded for leniency and he told the Court
that he was only 15 years old when he was arrested. He also pleaded
with the Court to backdate his sentence on the grounds that he has
been remanded into custody since 2007.
For the purpose of sentencing, I have placed reliance on the recent
decision of the Supreme Court of Swaziland in Mfanasibile
Gule v The King Criminal Appeal No. 03/2011.
that case, His Lordship Moore JA opined as follows:
fashioning the appropriate sentence for the offence for which the
Appellant was convicted it was the duty of the sentencing Judge to
consider: the circumstances of the offence the circumstances of the
offender the public interest
mitigating and aggravating factors applicable to the offence arising
out of all of the material before her; The law and practice relating
to sentencing in Swaziland The sentencing guidelines, norms and
trends obtaining in contemporary Swaziland as disclosed in the most
recent decisions and pronouncements of the Supreme Court and, where
appropriate, those of the High Court."
Section 185 (bis) (1) of the Criminal Procedure and Evidence Act
67/1938 enjoins a Court that has convicted a person of rape with
aggravating factors to sentence him to a minimum of 9 years
imprisonment without an option of a fine.
In this Kingdom the Courts have treated the rape of a child as a
particularly serious aggravating factor warranting very stiff
in point is that of Mgubane
Magagula v The King Criminal Appeal No. 32/2010 where
the Supreme Court, inter alia, observed that:
appear that the appropriate range of sentences for the offence of
aggravated rape in this Kingdom now lies between 11 and 18 years
imprisonment - which is the mid range between 7 and 22 years -
adjusted upwards or downwards, depending upon the peculiar facts and
circumstances of each particular case.
tables also reveal that this Court has treated the rape of a child as
a particularly serious aggravating factor, warranting a sentence at
or even above the upper echelons of the range. "
However, it is imperative that a difference must be made between a
child offender and an adult in judging what is appropriate in each
case. I am also mindful of the fact that it is the age of the accused
at the time of commission of the offence that should be taken into
account. In this instant case, the accused was aged 15 at the time of
commission of the offence. He was therefore a child for all intents
and purposes. Section
29 (2) of the Constitution of the Kingdom of Swaziland Act No. 001 of
the subjection of children to abuse, torture or other inhuman and
degrading treatment or punishment. The subsection further advocates
that any punishment imposed on a child should be "subject to
lawful and moderate chastisement for purposes of correction."
In the case of Centre
for Child Law v Minister of Justice and Constitutional Development
and Two others CCT 98/2008 (2009) ZACC 18 at
Court pronounced that:
Constitution draws this sharp distinction between children and adults
not out of sentimental considerations, but for practical reasons
relating to children's greater physical and psychological
vulnerability. Children's bodies are generally frailer, and their
ability to make choices generally more restricted, than those
considerations take acute effect when society imposes criminal
responsibility and passes sentence on child offenders and most
vitally, they are generally more capable of rehabilitation than
adults. These are the premises on which the Constitution requires the
Courts and Parliament to differentiate child offenders from adults.
Hence we afford children some leeway of hope and possibility."
It is generally accepted that there are, however, degrees of maturity
and that the younger the juvenile, the less mature he or she is
likely to be. See Mabuza
and Others v S
(2007) ZACA, 110 where
the Supreme Court of South Africa per Cachalia
almost always affects the moral culpability of juvenile accused. This
is because young people often do not possess the maturity of adults
and are therefore not in a position to assess the consequences of
their actions. They are also susceptible to peer pressure and to
adult influence and are susceptible when proper parental guidance
lacking Judicial policy has thus appreciated that juvenile
delinquency does not inevitably lead to adult criminality and is
often a phase of adult development. The degree of maturity must
always be carefully investigated in assessing a juvenile's moral
culpability for the purpose of sentencing."
Judging from the totality of the evidence adduced in the Court a quo
in this present case, it is clear to me that the accused has been
convicted of a very serious crime. I have also taken into
consideration the fact that the aggravating factors were that the
victims were young children and furthermore, the accused had not used
a condom, thus putting them at risk of contracting sexually
transmitted diseases and infections.
Another noteworthy factor is the way and manner in which the accused
attacked all his three victims. Suffice it to say that the modus
operandi of the accused depicts him as nothing but a serial rapist
who should be put away for a long time. Nonetheless, and
particularly, in the light of all the foregoing pronouncements
pertaining to sentencing of juvenile offenders, I find that there is
a need for this Court to exercise caution and to temper justice with
In the circumstances, Siboniso Magagula, you are hereby sentenced
1: 6 years imprisonment without the option of a fine. Count 2: 6
years imprisonment without the option of a fine. Count 3: 6 years
imprisonment without the option of a fine.
said sentences are hereby ordered to run concurrently and they are
backdated to 4th
June, 2007 which was the date the accused was arrested.
OF THE HIGH COURT