Mamba v R (15/11) [2011] SZSC 38 (30 November 2011);

 

IN THE HIGH COURT OF SWAZILAND

 

HELD AT MBABANE              Criminal Appeal No. 15/2011

 

 

In the appeal between:

 

 

SIYABONGA JOHN MAMBA       Appellant

                            

 

And

 

 

THE KING                                                 Respondent

 

 

CORAM                                                      M.M. RAMODIBEDI, CJ

                                                                        A.M.S. EBRAHIM, JA

 

 

 

 

 

 

 

FARLAM, JA

 

This is an appeal from a judgment of MCB Maphalala J, sitting in the High Court, who convicted the appellant on two counts of rape in respect of which aggravating circumstances were present and sentenced him to nine years imprisonment on each count and ordered that the sentences were to run concurrently. 

 

In respect of each count five aggravating factors, as they were described in the indictment, were alleged to be present.  Four of these factors were identical or very similar:  Namely

 

(1) that the complainant was very young at the time of the sexual abuse;

1. ‘the [appellant] threatened the victim with a sjambok’;
2. ‘the [appellant] sexually molested the victim over a period of years’ (from 2003 to 2007 on count one and from 2004 to 2007 on count two); and
3. ‘the [appellant] exposed  the victim to sexually transmitted infections such as HIV/AIDS as he did not use a condom on all occasions he had sexual intercourse with the victim.’

 

The fifth factor was based on the close relationship between the appellant and each complainant; as the appellant was the nephew of the complainant on count one and the sibling of the complainant on count 2.

 

The appellant pleaded guilty on both counts and submitted a statement of agreed facts, which contained the following:

 

‘The incidents stated in 2003 wherein myself and the complainants watched a sex movie on television.  That was when I started forcing them to have sexual intercourse with me.  The sexual intercourse would take place in the sitting room and sometimes in their bedroom and also in our grandmother’s bedroom.

 

I would usually engage in sexual intercourse with the complainants mostly during weekends.  During the sexual intercourse at no stage did I even use a condom.  Sebenele was a bit older that Nokuphiwa.  I was twenty (20) years in January 2007.

 

I state that sometimes they would refuse my demands to have sexual intercourse with me, that is when I would then threaten to beat them and then they would consent to the sexual intercourse.

 

I would always engage in the sexual intercourse with them on separate occasion.  I acknowledge that my actions of sleeping with the complainants in the manner in which I did was unlawful.  Both complainants were virgins when I started engaging in sexual intercourse with them.

 

I also acknowledge that I exposed the complainants to HIV/AIDS because I did not use condoms during our sexual intercourse.

 

In January 2007 when the matter finally came to the open, we had a family meeting wherein present was my father PHAKAMANI MAMBA my mother SIMANGELE THWALA, and my grandmother THEMBISILE MAMBA, wherein I acknowledged that I had raped the complainants.

 

I must say that during the meeting I could see that they were not accepting my apology where upon I then wrote two letters one addressed to my mother and the other addressed to my father where in I was acknowledging for my wrongdoing my parents received these letters.

 

The matter was then reported to the police where I was then arrested on the 17^thFebruary 2007 and have been on bail ever since.   I have been continually complying with my bail conditions ever since I was admitted to bail.’

 

Report compiles by the doctor who examined the complainant were bondend in by consent each revealed that the hymen of the complainant had been torn and were accordingly indication of the fact that penetration has been possibly been affected.

 

The birth certificates of the complainants were also handed in by consent.  They showed that the complainant on count one was born on 8^thMay 1993 (and was therefore about ten years old when the rapes commenced) and that the complainant on count two was born on 23^rdMarch 1996 (and was therefore about seven years old when the rapes commenced).

 

  

Section 185 bis (1)of the Criminal Procedure and Evidence Act 67 of 1938, as inserted by Act 6 of 1986, reads as follows;

 

‘A person convicted of rape shall, if the Court finds aggravating circumstances to have been present, he liable to a minimum sentence of nine years without the option of a fine at no sentence or part thereof shall be suspended.’

 

The appellant, who represented himself both in the Court a quo and on appeal, stated that he did not infact agree with all the facts set out in the statement he signed what was put before the trial court.  He said that he did use a condom when having intercourse with the complainants and denied that the crimes started in 2003.  He conceded however, that he had raped the complainants and that they were virgins when he did so.  He also stated that he was 20 years old at the time.

 

In his argument as why the sentences imposed on him should be reduced he said that he was a first offender, that he had been in custody for seven months before he was released on bail, that he is sickly and that he left, as he put it, an eleven month baby when he was taken into custody.  He accordingly asked for a reduction in sentence.

 

The provisions of Section 185 bis of the Criminal Procedure and Evidence Act were considered by this Court in Fanafana Nkosinathi Maliba v the King, criminal appeal 5 of 2011, a judgment delivered on 31 May 2011 which is as yet unreported but which is available on the internet on the website of Swazilii.net.

 

Applying the principles set out in that judgment I am satisfied that the aggravating circumstances were present in respect of the rapes covered by both counts.  I base this finding on the extreme youth of the complainants, the fact that they were virgins and the threads to subject then to a beating with a sjambok.  He alleged aggravating circumstances that the complainants were exposed to the risk of HIV/AIDS was in any event not established even if the appellant did not use a condom (something he now denies) because it was not established that he suffered therefrom when the offences were committed in of Maliba’s case at paragraph [   ].  I leave open the question as to whether the close relationship between the appellant and the complainant on count one and the fact that the complainant on count two was his half-sister constitutes aggravating circumstances.

 

In view of the fact that aggravating circumstances were present it is clear that the trial court was obliged to impose the minimum sentence of nine years imprisonment on each count.

 

Mr. Maseko, who appeared for the crown, conceded that the appellant had been in custody for seven months before he was released on bail and that the trial court, if that fact had been brought to its attention would have been obliged to, in terms of section 16 (9) of the constitution, to take into account the period the appellant had spent in lawful custody before the completion of the trial in imposing the imprisonment it did.  He accordingly correctly, conceded  that the appeal should be allowed to the extent that the sentences imposed should be qualified by the addition of the words ‘and shall be backdated to 11 April 2010’ in order to comply with Section 16 (9) of the Constitution.

 

The following order is made:

 

1. Subject paragraph 2 hereof, the appeal against the sentences imposed in this case is dismissed.

 

1. The sentences imposed in this case are qualified by the addition of the word ‘and shall be backdated to 11 April 2010’ after the word ‘concurrently’.

 

 

______________

I.G. FARLAM     

                                                                                     Judge of Appeal

 

 

I agree                                                                  ________________

                                                                              M.M. RAMODIBEDI

                                                                              Chief Justice

 

 

I agree                                                                  __________________

                                                                              A.M.E EBRAHIM

                                                                              Judge of Appeal