THE HIGH COURT OF SWAZILAND
the matter between:
THE CROWN: MS. L. HLOPHE
The Accused person was arraigned before the Magistrates Court charged
with the crime of Rape. The crown alleged that upon or about the
month 2009 and at or near Mavula area in the Hhohho region, the said
Accused person, an adult male did intentionally have unlawful sexual
intercourse with one A
M a female who was at
that time 6 years and incapable in law of consenting to sexual
intercourse and did thereby commit the said crime of rape.
The crown further alleged that the Rape was accompanied by
aggravating circumstances as envisaged by Section 185 bis
of the Criminal
Procedure and Evidence Act 67/1938 as amended (CP & E) in that
At the commission of the offence the said Accused did not use a
condom thereby putting the Complainant at risk of contracting
sexually transmitted diseases and infections.
The Accused has broken the relationship of trust in that he is the
complainant's parental uncle.
The Accused pleaded not guilty to the charge. Thereafter a trial was
conducted in which the crown paraded a total of 5 witnesses in proof
of its case. At the close of the crown's case the Accused testified
on oath and called no witnesses. In it's judgment the Court a quo
found the Accused guilty of rape with aggravating factors, and
convicted him accordingly, thereafter the Court remitted this case to
the High Court for sentencing in terms of Section 292 (1) of the CP &
Let me straight away state here, that I find an irregularity in the
charge sheet in that the crown failed to stipulate therein the day or
month in the year 2009 in which the offence was committed as is
required by law. However, since it is clear from the evidence
tendered a quo, a fact which is also accepted by the Accused in his
defence, that this crime took place in April 2009, I will treat this
irregularity as insufficient to vitiate the entire proceedings a quo.
I however find a need to admonish that the charge sheet constitutes
notice to the Accused person of the case he is called upon by the
crown to answer. The purpose of the charge sheet is to identify and
isolate the particulars of the offence allegedly committed by the
Accused. The prosecution of the Accused for the alleged offence will
be done strictly on the basis of the particulars of the offence as
identified and isolated in the charge. Therefore the charge should be
drawn up with the greatest legal skill, accuracy, elegance and
expertise which the crown can muster.
The foregoing said and done, I deem it expedient to point out at this
juncture before proceeding to sentence, that from the record I am
convinced that the crown indeed proved its case beyond a reasonable
doubt before the Court a quo. I say this because the identity of the
Accused is not in issue. The Complainant positively identified the
Accused who is her uncle and with whom she resided in the same
homestead at the material time of this incidence as being her
attacker. I notice that the Accused failed to deny this fact either
in his cross examination of the Complainant or in his defence.
Furthermore, the fact of sexual intercourse was also proved beyond a
reasonable doubt. The Complainants evidence was that the Accused
inserted his penis into her vagina and that he did not use a condom.
This fact is corroborated by the evidence of PW5, Dr
Eddmore S. Mafeka the
medical doctor who examined the Complainant at the Emkhuzweni Health
Centre after the rape incidence, as well as ext A the medical report
of said medical examination which demonstrates the following "
Evidence of recent
penetration and sexually transmitted infection noted". Ext
A also shows that the Complainants Vestibule
and Fourchettee were
bruised and that her hymen was bruised and torn at 4 x 7 o'clock. To
my mind ext A is proof beyond a reasonable doubt that the Accused
indeed had sexual intercourse with the Complainant and without a
condom on the day in question, thus the presence of the sexually
transmitted infection. The lack of consent was also proved beyond a
reasonable doubt before the Court a quo. It is not disputed that the
Complainant was only 6 years old when the rape incidence occurred.
She was thus in law incapable of consenting to sexual intercourse. I
say this because it is the position of The Roman Dutch Common Law
that a child below the age of 12 years is incapable of consenting to
sexual intercourse and even if she consents, sexual intercourse with
her is Rape.
It is thus in my view beyond dispute that the Court a quo properly
convicted the Accused of the offence as charged. I therefore confirm
the conviction by that Court.
mitigation before this Court on the 10th
of August 2011, the Accused
begged for leniency. He said he is the bread winner of his family.
In Response the crown called for a punitive sentence on the grounds
that the Complainant was a child of very tender age when the offence
was committed and there is a need to curb the prevalence of this
In passing sentence on you I am enjoined by Law to consider your
personal circumstances, the interest of the society, the seriousness
of the offence and the peculiar circumstances of the case. I have
thus considered the fact that you are a first offender and that you
are remorseful. Having considered your personal circumstances, I must
however point out to you that the offence you committed is a very
serious one. The seriousness of this offence is heightened by it's
prevalence in the Kingdom. These factors engendered the Supreme Court
to demonstrate its abhorrence for this foul offence by coming out
with the appropriate range of sentence for same, as between 11 and 18
years, in the case of Mgubane
Magagula V Rex Appeal No. 32/2010. It
is therefore clear that the mood of the Courts is geared in the
direction of Curbing the Prevalence of this offence.
In casu, Friday Magagula, by your barbaric activity, you violated
this innocent and defenceless 6 year old. You violated her privacy
and bodily integrity thereby debasing her womanhood with impunity.
You violated the trust the Complainant reposed in you as her uncle.
You failed to use a condom in your illicit enterprise and thus
infected the Complainant with a sexually transmitted disease. You did
not do well at all, Friday
Magagula. As an older
male relative of the Complainant's your duty was to protect her and
not to expose her to this sort of victimization. Your cruel activity
upon the complainant was thus shameful, unacceptable and an outrage
to put it in very mild terms.
In as much as I have considered that you are a first offender, I must
however stress that the incidence of sexual assaults on the girl
child is of such a prevalence in The Kingdom that the need to
discourage it is of paramouncy. The heightened activities of
pedophiles like you must be curbed in the interest of the future and
stability of the nation. It is this need that engendered Ramodibedi
JA (as he then was) to remark as follows in the case of Sam
Dupoint V Rex Criminal Appeal No. 4/08, paragraph 15.
15 It remains for me to emphasis that the Courts have a fundamental
duty to protect society against the scourge of sexual assaults
perpetrated against young children in particular. As this Court
pointed out in Makwakwa's case (supra) the Courts should mark their
abhorrence of the prevalent sexual attacks on young children, as a
deterrent. This, they can do by imposing appropriately stiff
sentences. Indeed in Moses Gija Dlamini
V Rex (supra), this Court had no
difficulty in confirming a sentence of 20 years imprisonment for the
rape of a nine (9) year old girl. Sexual offenders against young
children have, therefore, sufficiently been warned".
Similarly in Mgubane
Magagula V The King (supra) the
Supreme Court in paragraph 20 thereof, recommended that the rape of a
child should be treated as a particularly serious aggravating factor,
warranting a sentence at or even above the upper echelons of the
In casu, even though the age of the Complainant was not alleged on
the charge as an aggravating factor, I am still enjoined to take it
into consideration in sentencing. I say this because it is a trite
principle of law that a Court in sentencing must weigh in the balance
all aggravating and mitigating factors, in the case.
In conclusion, having carefully considered the triad, I am convinced
that a sentence of 18 years is condign of the offence committed, to
serve as a deterent to others. Sentence back dated to the 7th
of May 2009, date Accused was
arrested. It is so ordered. Right of Appeal and review explained.
IN OPEN COURT IN MBABANE ON THIS
12th DAY OF
OF THE HIGH COURT