IN
THE HIGH COURT OF SWAZILAND
Crim.
Appeal Case No. 70/94
In
the matter between:
1.
SIPHO CHARLES MBHAMALI
2.
MDUDUZI MASTER MATSENJWA Appellants
And
THE
KING Respondent
CORAM :
Hull, CJ.
FOR
APPELLANTS In person
FOR
THE CROWN Mr. Kilukumi
Reasons
for judgment (4/11/94)
The
appellants were tried by the Senior Magistrate at Manzini in May on a
charge of rape.
They
were represented by Mr. Thulani Masina, who is an experienced
attorney. On arraignment, each pleaded not guilty. The complainant, a
fourteen year old school girl, was cross-examined at some little
length. It was put to her (which she denied) that she knew and was
attracted to the appellant Matsenjwa. Beyond that, the
cross-examination appears to have been directed towards testing her
account as to how the incident came to happen. It was expressly put
to her that Matsenjwa denied the charge. From the cross-examination
it is not clear what the defence of the appellant Mbhamali was to be
except that, implicitly, the girl's credibility was being challenged.
2
After
she completed her evidence, her sister testified that she complained
to her that she had been raped by some boys. She also described the
state of the girl' s clothing and her physical condition. Her
description was not inconsistent with the complaint.
The
sister was not cross-examined. At the end of her evidence, defence
counsel informed the court that he had taken instructions from the
appellants who were now changing their pleas to those of guilty. The
appellants confirmed this.
After
that an investigating officer gave evidence that the appellants had
led him to the homestead of Mbhamali, who had there produced to the
officer a screw driver.
The
Senior Magistrate convicted both appellants on the charge. At the
time each of them was seventeen years old. There was no evidence that
either had previous convictions. Each was sentenced to three years
imprisonment.
The
appellants appealed against convictions and their sentences. On
Wednesday, 2nd November, I dismissed the appeals, saying that I would
give reasons today, which I now do.
On
the appeal against conviction, Matsenjwa complained that he had never
agreed to change his plea. He also said that he knew nothing of the
assault on the girl, not having been there.
Mbhamali
said that he had had sexual intercourse with the girl, but that she
had consented to it. He said that he had changed his plea to one of
guilty on his attorney's advice that he would receive a light
sentence.
The
record shows that both appellants confirmed their changes of plea
before the court. They were represented by competent counsel.
Although the cross-examination was not inconsistent with a defence,
by Matsenjwa, that he had never been present, it had never been put
to the complainant that she willingly had sexual intercourse with
Mbhamali.
3
Moreover,
neither of the notices of appeal alleges these grounds of appeal.
They cannot be sustained. Nor, in the face of their eventual pleas,
can the grounds in the notices themselves be sustained. Mbhamali did
make the point that although her evidence the girl had alleged that
he stabbed her with a screw driver, there was no evidence that she
had been marked or scarred in that way. It is a point, but it is not
in my view sufficient to detract from his admission of guilt. The
girl did in court identify her T-shirt and say that there was blood
on it, because she had been stabbed with the screwdriver. Even if she
were wrong about that, however, it is not in itself sufficient, in
view of the pleas, to show that she wrongly accused either appellant
as one of her attackers.
Each
appellant also complained that his sentence was excessive. The
learned Senior Magistrate concluded, in sentencing, that there were
no aggravating circumstances. With respect, he was in my view wrong
in both cases. The girl was raped by two different men, i.e. the
appellants. According to her evidence, at least two other young men
were standing by, watching. The appellants were obviously acting in
concert and Mbhamali used a screwdriver to force her to submit.
Those
were properly to be regarded as aggravating factors for which, by
reason of section 185 Dis (1) of the Criminal Procedure and Evidence
Act 1938 (as amended), a minimum sentence of nine years imprisonment
should have been imposed, notwithstanding the youth and the changes
of pleas of the appellants. Moreover, because of section 313(2) of
that Act, the option of suspension of any part of the sentence is not
available in respect of the crime of rape.
Whether
each of these restrictions is desirable is the business of the
legislature although it may be helpful for me to observe, at least,
that while on the one hand 1 appreciate that they reflect the
public's view of the gravity of the offence (and perhaps of its
prevalence), one consequence of a very heavy minimum sentence is that
it may drive accused persons who would otherwise admit their guilt to
plead not guilty - and in some instances, result in the acquittal of
such persons. It is well recognised that it is in the interests of an
efficient process of criminal justice that persons who are in fact
4
guilty
of offences should be encouraged to admit their guilt, and that where
they do so, they should receive discounted sentences.
This
saves time and money, and it avoids the uncertainties that are
inherent in every criminal trial. In the case of sexual offences, it
also spares victims the stress of having to testify in court.
In
the present case, undoubtedly because of the young age of the
offenders, the Crown did not seek by way of cross-appeal to challenge
the sentences. They were plainly not excessive. They were, for the
reasons I have given, wrong.
The
appeals were accordingly dismissed.
DAVID
HULL
CHIEF
JUSTICE
Air Jordan 