IN THE HIGH COURT OF ESWATINI
In the matter Between: Criminal Case No. 327/18
Neutral citation : The King v Eric Sifundza (327/2018)  SZHC 41
(6th March, 2019)
Coram : M. Dlamini J
Heard : 27th February, 2019
Delivered : 6th March, 2019
Summary: The accused was convicted by the Magistrate Court sittings at Piggs Peak on 26th August, 2016 on two counts of incest. The presiding Magistrate then referred the matter to this court for sentencing.
 Siphiwe Sifundza testified before the principal magistrate that you are her biological father. You never took her to school. For that reason she is uneducated. She was in 2010, during the commission of the offence, 18 years old. She visited her boyfriend. While in the house, her boyfriend’s mother knocked saying you were looking for her. Her boyfriend responded that she was not in the house. However, her brother entered the house, having identified her shoes that were by the door. You also entered. You beat her, forcing her out of her boyfriend’s house.
 You led her into the boot of your car which you had parked by the road. You then instructed your other children who had gone with you to find Siphiwe to go back to her boyfriend’s in laws to get Siphiwe’s clothing. They left. While they were away, you instructed Siphiwe to get out of the boot and enter the back seat of your motor-vehicle. She obliged. You demanded that she should open her legs so that you could inspect her private parts for purposes of ascertaining if she had sexual intercourse. You then raped her. She cried. Before you raped her you had severely beaten her with a horse pipe. After raping her, you forced her back to the car boot. By the time your other children came back from collecting her clothing, you had completed your monstrous act.
 You took her home where you again beat her with the horse pipe. Days went by. You left for your work place in South Africa. It is then that she narrated to your first wife how you had raped her. Your first wife suggested that your second wife be informed. After both of your wives heard her ordeal at your hands, they assured her that they would confront you upon your return. You did come back from South Africa. When she realised that your wives were not asking you about the rape, she asked them. They said that they could not ask you because there was a ritual ceremony taking place at your homestead. Even after this event, both your wives did not confront you.
 A year went by. You then took her along to the grinding mill using your motor-vehicle. You drove towards a forest where you ordered her out. She refused. You dragged her out of the car. You then took her back to the back seat of your motor-vehicle. You raped her again. Due to your repeated acts of rape, she decided to run away to South Africa. It was her evidence that following that she had reported to your wives about the first rape and nothing was done about it, she considered abandoning your homestead for another country.
 In South Africa, she narrated her ordeal to her friend. However, her cousins Simanga and Vusi who were searching for her found her in South Africa. They brought her back to the kingdom. She reported her ordeal at your hands to the Buhleni police.
On Count 1
 Your child Nqobile Sifundza testified that in 2008, she was living in Durban with your elder wife. She was attending school in Durban. In 2008 you came to fetch her, taking her to this country. Along the way, you stopped your car. You ordered her out. You forced her down on the ground and raped her. You ordered her to board your car and drove home. She was 16 years old at that time. Because of your action, she hid her travelling document in fear that when she returns to Durban with you, you might rape her again along the way.
 Again in 2008, you instructed her to go and lock one of the houses’ door. She obliged. You followed her. While she was locking the door, you pushed it open and pushed her inside the house. You raped her again. As a result she fell pregnant. She gave birth to a child. When this child was eight months old, you raped her again. She had gone into the house to get food for the child. She fell pregnant again and gave birth to your second child.
 To conceal your unlawful conduct, you would inform Nqobile that her boyfriend in Durban called. You would give her money saying that it was from her boyfriend in Durban for the child. This evidence came under cross-examination. Unfortunately, for you the court cannot be blinded by your dust. It can see that you pretended that Nqobile’s boyfriend sent calls and money. If Nqobile’s boyfriend had called, he would have called Nqobile direct and not you. These calls were an imagination of your mind. This goes to show that you raped your two girls and orchestrated your unlawful conduct. You had hoped that the mere fact that your two daughters had boyfriends that would assist you in your defence. It did not and it cannot do so now or ever.
 The evidence of reporting was confirmed by both of your wives. Your senior wife confronted you and you denied raping Siphiwe. The evidence by Nqobile was corroborated by the forensic expert from Pretoria. Having analysed blood samples from you, Nqobile and the two children, she testified that laboratory analysis confirmed that you were the father of the two children and Nqobile, the mother.
 Your very own witness corroborated the evidence of the complainant in count 2. Oliver Sifundza is one of the children you went with to look for Siphiwe. She confirmed that having found Siphiwe and while by the car which you had parked by the road, you sent all the children except Siphiwe to go back to fetch Siphiwe’s clothes. They obliged. Your fourteen page defence could not change the evidence of your two daughters and the crown’s witnesses including your witness.
 On 27th February, 2019, when you decided to take the witness stand for mitigation, you did not mitigate but insisted on your innocence. How in the light of the evidence serving before me especially the forensic evidence? Today you informed the court that you were remorseful. I did not see any sign of remorse. To insist on your innocence in light of the forensic report smacks of nose-thumping the criminal justice system. To me you have no respect for the society you leave in.
 Complainant in count 2 has no mother by reason that she is deceased. Despite all this, you took the view that the court should pass a sentence which would ensure your liberty. This goes to show that you do not consider the offence of incest as serious. Your daughter in count one has given birth to two of your children. What is worse is that she is uneducated. How is she to earn a living without education in the light of the situation you have put her? No doubt her future is blink because of our repeated unlawful conduct.
 I consider that you are a man of means. You had a motor-vehicle of your own. After all you were employed. I wish you had diverted the funds which you used to buy the motor-vehicle towards your children’s education. You did not do so but decided to use this motor-vehicle as a house and bed to rape your children. But why? You lacked nothing. You have more than one wife. Why then resort to satisfying your sexual gratification upon your daughters? The answer is that it is because you pay total disregard for the law and members of society.
 You pryed on innocent children. Your unlawful act was calculated as you targeted the two because you heard that they had boyfriends. You thought that by raping them you would escape the hand of the law under the pretext that they had sexual intercourse with their boyfriends. You were foolish in that regard. In fact, you exacerbated your sentence for your unlawful conduct in that regard.
 I do consider that you are 53 years old and have three wives and many children. However, I find no remorse on your part. Today you told this court that the child in count 1 is not yours as per the doctor’s finding. This was never a subject of enquiry when the DNA examination was conducted upon the two children who were the subject of incest. It goes to show how desperate you are in insisting on your innocence. This does not assist you in mitigation of your sentence.
 I must send a message out there that rape, let alone incest is a heinous crime which the court shall not tolerate. You do not deserve to live with members of society. You must be kept away from society for a long time. It is hoped that during that time you would appreciate the importance of respecting the body and person of a girl child. You were the father of the children. They looked up to you for protection. The same hand molested them. Where should the children go to for protection?
 I sentence you as follows:
17. 1 Count 1: Incest – where two children were born as a
result: 25 years in custody;
17.2 Count 2: She too was repeatedly raped:
18 years in custody.
17.3 Sentence to run conservatively.
17.4 Sentencing in count 1 is backdated to 27th July, 2011.
M. DLAMNI J
For applicant : Leo Ndvuna Dlamini of Nkosi Attorneys
For Respondent : Nompumelelo Ngubeni Director of Public Prosecution