Simelane v The King (123/2018) [2019] SZHC 19 (13 February 2019);

 

 

 

 

 

IN THE HIGH COURT OF THE KINGDOM OF ESWATINI

 

 

JUDGMENT

 

 

HELD AT MBABANE                                           Civil Case No. 123/18

                  

CELUMUSA SIMELANE                                                   APPELLANT

                  

 

and

 

 

THE KING                                                                       RESPONDENT

 

 

Neutral citation:           Celumusa Simelane v The king (123/18) [2019] SZHC 19 (13^th February, 2019)

 

CORAM                         MASEKO J

 

FOR APPLICANT:                    M SIMELANE OF PILISO SIMELANE& PARTNERS                        

FOR RESPONDENT:     MANDLA DLAMINI FROM DPP’S CHAMBERS  

 

 

 

DATE OF HEARING:        18^TH JUNE 2018         

 

DATE OF RULING:          13^TH FEBRUARY 2019

PREAMBLE:        Criminal Appeal – Appeal against Sentence whether sentenced imposed by the court a quo excessive and grossly harsh – Offence of Indecent Assault on a 10 year old complainant by a 20 year old uncle – in loco parentis.

HELD:                  Sentence of 7 years imprisonment without option a fine is not excessive nor harsh to warrant this court to interfere with it – Appeal dismissed.

 

[1]      On the 27^th April 2018, the Appellant launched motion proceeding seeking for an order in the following terms:

1. That the rules of court pertaining to the service of process, forms and time limits be dispensed with and this matter be treated as one of urgency
2. Condoning the non – compliance with the rules as aforesaid
3. Admitting Applicant to bail pending appeal.

 

[2]      The matter appeared before me on the 27^th April 2018 and I ordered that the appeal be argued instead of the bail pending appeal and postponed it to the 12^th June 2018 and further ordered the Crown to file the Record of Proceedings before the court a quo

 

[3]      On the 12^th June 2018 the matter was again postponed to the 18^th June 2018 wherein the appeal against sentence only was then argued.

 

[4]      Counsel on both sides filed comprehensive Heads of Argument and Bundles of Authorities and am grateful for their professionalism.

 

 

 

APPELLANT’S CASE

[5]      Mr Simelane who appeared for the Appellant submitted that the custodial sentence of 7 years imprisonment meted out to the Appellant by the learned Magistrate before the court aquo on the 15^th March 2018was excessive and induces a sense of shock.

[6]      Mr Simelane submitted further that the court a quo had found the Appellant guilty of Indecent Assault because there was no evidence of unlawful sexual intercourse.  He argued that the court only relied on the evidence adduced before it wherein it was alleged that the Appellant touched the complainant’s private parts.

[7]      Mr Simelane submitted further that it is established principle that the trial court has the discretion to impose a sentence and that the Appellate Court will only interfere with such a sentence if there is a misdirection and gross irregularity in the sentencing or where the sentence is so grossly harsh and excessive such that it induces a sense of shock as to warrant interference in the interest of justice.

[8]      Mr Simelane submitted that the sentence imposed on the Appellant by the trial court is excessive, harsh and induces a sense of shock such that this court sitting as an Appellate Court would be justified to interfere with the sentence.  He referred to a number of authorities namely

                                                Madeyi Paris Dludlu v Rex

(26/2013)2014 SZSC 48

Musa Bhondi Nkambule v Rex

Crim Appeal No 6/2009

Nkosinathi Bright Thomo v Rex

Crim Appeal No 12/2012

Mbuso Likhwa Dlamini v Rex

Crim Appeal No 18/2011

                             Sifiso Zwane v Rex

                             Crim Appeal No 5/2006

[9]      Mr Simelane further referred me to other authorities also dealing with the issue of sentences and in particular the landmark case of S v Rabie 1975 (4) SA 855 (A) wherein the court outlined the criterion which the sentencing courts must always consider during passing of sentence.

 

 

 

CROWN SUBMISSION

[10     Mr Mandla Dlamini who appeared for the Crown submitted that the sentence meted out to the Appellant by the Court a quo does not induce a sense of shock to warrant this court to interfere with it.  Mr Dlamini submitted further that the Appellant was facing a very serious offence and that the trial court was correct to observe that the Appellant had abused his trust as being an uncle acted in loco parrentis to the victim and that this aggravated his offence.

[11]    Counsel for the Crown submitted further that the trial court was alive to the prevalence of these violent offences being perpetrated against children.

[12]    Counsel submitted further that it was the duty of the courts to pass stiff custodial sentences so as to warn other would be offenders that such offences are frowned upon by the courts and community at large.

[13]    Counsel submitted further that the trial Court fully considered the triad principles during sentencing and that the court imposed the sentence having taken into account the nature of the offence and the manner in which it was committed, and that, therefore, there was no misdirection on the part of the trial court.

[14]    Mr Dlamini referred to the case of Elvis Mandlenkhosi Dlamini v Rex Crim Appeal 30/11 where the Supreme Court stated as follows:

“It is trite law that the imposition of sentence lies within the discretion of the trial court and that the appellate Court will only interfere with such sentence if there has been a material misdirection resulting in the miscarriage of justice.  It is the duty of the Appellant to satisfy the Appellate Court that the sentence is grossly harsh or excessive or that it induces a sense of shock as to warrant interfering in the interest of justice”

EVALUATION OF THE EVIDENCE ON RECORD

[15]    It is common cause that the Appellant is an uncle to the complainant and thus stood in loco parrentis, and that on the 17^th February 2018 Appellant was from school, and upon arrival he found the complainant in the company of her other uncle Musa Simelane (PW2).  Appellant then informed PW2 that his friends were looking for him.  PW2 then left to see his friends leaving the Appellant and complainant in the house.  Complainant’s mother and grandmother were in the fields.

[16]    It must be noted that complainant was 10 years old during the commission of the offence and the Appellant 20 years old.  It is common cause that complainant testified that she and the Appellant played a game of cards and that the Appellant won.  It appears there was a slight misunderstanding after Appellant had slapped the complainant on the cheek, she then chased Appellant to his room and it appears that this was a trick by Appellant because he then grabbed the complainant threw her on the bed, undressed her, and then committed the offence.

 

[17]    Complainant testified that after the ordeal, she reported immediately to her mother and grandmother who in turn had the matter reported to the police and the Appellant was then arrested.

[18]    I must caution the Crown that a prosecutor leading a complainant in rape cases must ensure that the complainant describe exactly how the offence was committed.  It is not enough for the complainant to say the Appellant raped her, because the word ‘rape’ is a technical word.  The prosecutor must elicit from the witness full details of how the offence was committed so as to enable the court to fully appreciate exactly how the offence was committed.

[19]    It appears from the evidence that there was a contradiction as to whether the appellant inserted his penis or a finger into her vagina.  Further the doctor’s report indicate that the complainant had informed the doctor that Appellant had rubbed his penis on her vulva.

[20]    Whatever these contradictions may be they are not material because authority is legend that the mere touching of the female parts with a penis amounts to penetration, this is legal penetration, the point being that any surface in the private parts of the female is highly protected and a no go area.  However the Appellant during cross – examination admitted that he inserted a finger on the complainant and not his penis.  This does not make the act of the Appellant any better because that is an equally serious case of indecent assault deserving a stiff custodial sentence to serve as a lesson to those convicted and as a deterrent to other would be offenders.

[21]    Indeed the learned Magistrate carefully considered the principles of the triad and having fully considered all aspects of the matter, the personal circumstances of the Appellant, interest of society, the conclusion was that the deserving sentence is seven (7) years imprisonment without the option of a fine.

[22]    I cannot interfere with the sentence because it is not excessive or grossly harsh such that it induces a sense of shock, further there has been no misdirection or irregularity on the part of the trial court to warrant this court sitting as an appellate court to interfere with the sentence, of the court a quo.

[23]    In the premises I hereby order as follows:

1. The Appeal against sentence is hereby dismissed.

 

 

So ordered.

 

 

NKOSINATHI MASEKO

JUDGE