IN THE SUPREME COURT OF SWAZILAND
HELD AT MBABANE CRIM.APPEAL CASE NO: 21/11
In the matter between:
MANDLA SHONGWE APPELLANT
THE KING RESPONDENT
CORAM: MOORE, JA
DR. TWUM, JA M.C.B. MAPHALALA, JA
FOR APPELLANT IN PERSON
FOR RESPONDENT S. DLAMINI
HEARD ON 03RD NOVEMBER 2011
DELIVERED 30TH NOVEMBER 2011
Criminal Appeal – Conviction of aggravated rape of seven year old girl – appeal on sentence of fourteen years imprisonment– No material misdirection by court a quo – sentence not excessive – appeal dismissed – sentence imposed by court a quo confirmed.
M.C.B. MAPHALALA J.A.
 The appellant was convicted by the court a quo on the 17th February 2011 for the crime of rape, and, he was sentenced to fourteen years imprisonment without an option of a fine. This appeal is in respect of the sentence imposed by the court a quo.
 It is common cause that the appellant was charged in the court a quo for the crime of rape committed on the 16th June 2009 at Nkoyoyo area in the Hhohho region. The crown alleged that on the day in question, the appellant unlawfully and intentionally had sexual intercourse with Tibuyile Dlamini a female minor aged seven years who in law was incapable of consenting to sexual intercourse.
 The offence is accompanied by aggravating factors as envisaged under Section 185 bis (1) of the Criminal Procedure and Evidence Act No. 67 of 1938 as amended in the following respects: First, the complainant was a minor of a tender age of seven years; Secondly, prior to the sexual abuse, the complainant was sexually inactive; thirdly, the appellant exposed the complainant to the risk of sexually transmitted infections including HIV/Aids since he did not use a condom. When the charge was put to the appellant, he pleaded not guilty.
 Section 185 bis (1) provides the following:
“A person convicted of rape shall, if the court finds aggravating circumstances to have been present, be liable to a minimum sentence of nine years without an option of a fine and no sentence or part thereof shall be suspended”.
4.1 Section 313 of the Criminal Procedure and Evidence Act No. 67 of 1938 precludes this court from imposing suspended sentences on offences of murder, rape and robbery and any conspiracy, incitement or attempt to commit any of the said offences.
 Doctor Austin Ezeogu based at the Mbabane Government Hospital examined the complainant on the 17th June 2009 and subsequently compiled a Medical Report of his findings; he confirmed that her hymen in the vagina was torn, that the examination was painful and that no spermatozoa was found. He concluded that there was penetration of the vagina.
 PW2 Philile Thandeka Mngomezulu, a relative of the complainant testified under oath that the complainant went to school in the morning of the 16th June 2009 but did not come back home. On the following morning, she came across the complainant at a bus stop at Nkoyoyo area; the complainant was walking slowly with her legs wide open and her clothing was dirty. The complainant told her that she had slept at the parental home of her friend Girlie Shongwe, and that she shared the same bed with her friend and her father. When asked by this witness what happened when they were asleep at night, she broke down and cried. The complainant also disclosed to this witness that she was unable to walk. A nurse who resides in the neighbourhood spoke to the complainant at the instance of her father and PW2, and, the nurse afterwards confirmed that the complainant had been sexually abused.
 PW3 Lindiwe Dlamini, an aunt to the complainant’s father, testified under oath that she resides with the complainant at Nkoyoyo area, and, that on the 16th June 2009 she went to school but did not come back home that day. She further told the court that the complainant once disappeared before and they later found her at the appellant’s homestead; and that even now they thought that she was at the same homestead, and they did not bother looking for her that evening but undertook to look for her in the morning. Whilst PW3 was at work, she received a phone call from PW2 who told her that she was seeing the complainant at the bus station at Nkoyoyo and that she was limping and wearing the same uniform she was wearing the previous day, and, that her clothing was dirty; it is this witness who suggested that the complainant be taken to a retired nurse Mrs Tsabedze who resides in the neighbourhood so that she could ascertain if the complainant had been sexually abused.
 PW4 Queen Dlamini, a neighbour to PW3 testified under oath that on the evening of the 17th June 2009 PW3 arrived at her homestead in the company of the complainant; PW3 asked her to speak to the complainant because she was crying when she asked her to explain what happened to her the previous night at the parental home of her friend. This witness spoke to the complainant in her bedroom, and, she confirmed that the appellant had raped her while she was asleep; and, that he further warned her not to make noise or tell anyone otherwise he would assault her physically. The appellant did not cross-examine this witness or dispute her evidence.
 PW5 Muzi Dlamini, the complainant’s father, corroborated the evidence of PW2, PW3 and PW4; he further told the court that he confronted the appellant on the 19th June 2009 at his homestead. PW5 was in the company of the community police. The appellant admitted that the complainant had slept in his homestead the previous night; however, he denied sexually abusing her. PW5 confirmed that the complainant was born on the 9th February 2002 and that she was seven years of age when she was sexually abused by the appellant.
 In view of the tender age of the complainant, the court appointed an intermediary, Olivia Ndlangamandla, a Social Worker employed by the Swaziland Government at the instance of the crown in terms of Section 223 bis of the Criminal Procedure and Evidence Act. This section provides the following:
… whenever criminal proceedings are pending before any court and it appears to such court that it would expose any witness under the age of eighteen years to undue mental stress or suffering if such person testifies at such proceedings, the court may … appoint a competent person as an intermediary in order to enable such witness to give the evidence through that intermediary.
In these proceedings-
no examination, cross examination or re-examination of any witness in respect of whom a court has appointed an intermediary… shall take place in any manner other than through that intermediary; and
the said intermediary may unless the court directs otherwise, convey the general purport of any question to the relevant witness.”
 The court admonished the complainant to speak the truth; and, she testified that she went to Girlie’s home at her invitation and that she had promised to accompany her back home. However, when it was time for her to go home, Girlie refused to accompany her and, by then it was already at night. She further told the court that subsequently Girlie’s father arrived and raped her. When she was asked by the Crown what she meant, she told the court that he took his private part and inserted it into her private part. She further corroborated the evidence of PW1 in all material respects. In addition, she confirmed having told PW4 that Girlie’s father raped her when she was asleep on a bed; and, that she shared the same bed with Girlie and her father. She told the court that Girlie was asleep when the appellant raped her. She identified the appellant in court as the person who raped her. She was consistent during cross-examination and answered all questions put to her properly.
 The investigating officer 2209 Constable Nomsa Zondi testified under oath that the complainant had recorded a statement with the police that the sheet on the bed had bloodstains; however, when the police arrived at the scene, they found that the sheet had already been washed.
 During Examination in-chief, the appellant conceded that the complainant slept in his house with him and his daughter; but he denied raping the complainant. However, under cross-examination he conceded that he shared the same bed with his daughter and the complainant on the night in question.
 When the appellant was called to make his Closing Arguments, he then conceded to the commission of the offence. At page 107 of the Record, paragraph 5, the trial judge asked the appellant the following question:
“…so in your submissions you are admitting that this offence was committed and all that you are saying is that the court must deal with you leniently….”
 In response the appellant said the following:
“Yes my Lord I agree with what has been said and I will urge the Honourable Court to be lenient with me.”
 The Court a quo after analysing the evidence correctly convicted the appellant of rape. At page 151 of the Record at paragraph 31, the learned Judge stated the following:
“The position of the law is clear on what is required of the Crown to prove in a rape case. In Valdermar Dengo v. Rex, Review case No. 843/88 and that of Rex v. Justice Magagula case No. 330/02, it was stated that the Crown needs to prove beyond a reasonable doubt the following factors which must be corroborated: the identity of the accused as offender, the fact of sexual intercourse as well as the lack of consent.”
 His Lordship continued at paragraph 32 and stated the following:
“…there is no doubt that the identity of the accused as the offender is not in issue. The accused was known to the complainant as a father of the latter’s friend. In any event the parties are in agreement that on the fateful day the complainant and the accused slept on the same bed with one Girlie, the daughter of the accused.”
 His Lordship also found that sexual intercourse had taken place on the evidence of the complainant that the appellant had inserted his private part into her private part; he further alluded to the evidence of the Doctor who examined the complainant. The doctor told the court that there was penetration as a result of which the hymen was torn. The trial judge further referred to the limping of the complainant which made it difficult for her to walk properly. He quoted P.M.A. Hunt, South African Criminal Law and Procedure, 2nd edition, Juta, 1982 at page 440 where the learned authors state the following:
“There must be penetration, but it suffices if the male organ is in the slightest degree within the female’s body. It is not necessary that the hymen should be ruptured, and in any case it is unnecessary that the semen should be emitted. But if there is no penetration, there is no rape even though semen is emitted and pregnancy results.”
 His Lordship also found correctly that the requirement of consent was lacking not only because the complainant cried when she was being raped but because she was below the age of twelve years and legally incapable of consenting to sexual intercourse. In coming to that conclusion the trial judge quoted the case of R. v. Z 1960 (1) SA 739 (A) at 742 where the court held that:
“According to our practice a girl under the age of twelve years cannot give consent to sexual intercourse. Even if she consents, sexual intercourse with her according to our law is rape.”
 This appeal is only in respect of the sentence of fourteen years imposed by the Trial Judge; in his Notice of Appeal, the appellant states that the sentence is “very harsh, severe and unbearable for a remorse first offender”. In arriving at the sentence of fourteen years, the Trial Judge took into account the personal circumstances of the appellant and in particular that he was a first offender, a breadwinner in his family and that he was remorseful; he also took into account the interests of society and in particular the prevalence of the offence as well as the seriousness and gravity of the offence. The offence is accompanied by aggravating factors and in particular the age of the complainant at the time of commission of the offence as well as the fact that the complainant was sexually inactive when she was raped. The Crown conceded that it did not prove that the appellant did not use a condom; I should point out that this failure by the crown is highly irresponsible because the failure to use a condom is an aggravating factor and it has a great influence on the trial judge when passing sentence.
 It is trite law that the determination and imposition of an appropriate sentence lies within the discretion of the Trial Court; an appellate court will not interfere with such a sentence unless there is a material misdirection resulting in a miscarriage of justice. The appellant must show that the sentence is grossly harsh or excessive as to warrant interference by the appellate court in the interests of justice. In doing so the appellant must show the existence of the material misdirection in the judgment of the court a quo:
Zwelithini Dlamini v. Rex Criminal Appeal No. 5/02
Musa Bhondi Nkambule v. Rex Criminal Appeal No.6/09
Denzel Dunguzela Gamedze v. Rex Criminal Appeal No. 41/2010
Musa Khotso Dlamini v. Rex Criminal Appeal No. 28/2010
 This Court in the criminal appeal of Mthaba Thabani Xaba v. Rex Appeal case No. 9/2007 emphasized the need of considering and adhering to the trial, and it stated as follows:
“It is of critical importance that the sentence of an accused person should be premised on a thorough investigation of all the relevant facts surrounding the commission of the offence. The personal circumstances of an accused person obviously need to be taken into account. However, the degree of his moral guilt is also dependent on the gravity of the offence as well as the mitigating and aggravating features of the offence. If the court process does not elucidate these factors, the court sentencing an offender may fail to do justice to an accused, or per contra fail to ensure the protection of the public.”
 His Lordship Justice Moore JA in the case of Mgubane Magagula v. Rex Criminal Appeal No. 32/2010 made a comparative study of rape sentences in this court from 2004 to 2009 and found that the appropriate range of sentences for aggravated rape lies between eleven and eighteen years imprisonment. The present case is an aggravated rape of a seven year old child by an old man who was a father to her friend.
The appellant merely seeks a reduction of sentence which he views as very harsh, severe and unbearable; however, he has failed to show that the trial judge misdirected himself resulting in a failure of justice. He has also failed to show that the sentence is in the circumstances harsh or severe or grossly inappropriate in the light of the range of sentences for aggravated rape in this country.
 This court is inundated with many appeals of aggravated rape of women and children some of whom are as young as three years. Women and young children are brutally raped because they are defenceless; this is a matter of grave concern to this court. The time has come for this court to impose sentences that will act as a deterrent to the prevalent sexual assault on women and children. It is against this background that this court in the case of Moses Gija Dlamini v. Rex Criminal Appeal No. 7/2007 confirmed a sentence of twenty years imprisonment for an aggravated rape of a nine year old girl. To that end the crown is urged and advised to file cross-appeals where necessary with a view to assist the court impose appropriate deterrent sentences with a view to curb the rape cancer.
 This appeal has no merit and it is accordingly dismissed. The sentence of fourteen years imprisonment is confirmed.
DELIVERED IN OPEN COURT ON 30TH NOVEMBER 2011.
JUSTICE OF APPEAL
I agree: S.A. MOORE
JUSTICE OF APPEAL
I agree: DR. SETH TWUM JUSTICE OF APPEAL