Simelane v Rex (3/2013) [2013] SZSC 09 (31 May 2013);

 

 

 

 

 

 

IN THE SUPREME COURT OF SWAZILAND

 

 

JUDGMENT

                                                                            

                                                          Criminal Appeal Case No. 3/2013

 

 

In the matter between

 

 

SIKHUMBUZO SIMELANE                                                  Appellant         

 

and

 

REX                                                                              Respondent

 

 

Neutral citation:            Sikhumbuzo Simelane v Rex (3/13) [2013] SZSC 09  (31 May 2013)

 

Coram:                          EBRAHIM JA, DR. TWUM JA, and M.C.B. MAPHALALA JA.

 

 

Heard:                            7  May 2013

 

Delivered:                      31 May 2013

 

 

Summary:        Rape – girl victim aged 10 years at time of offence – sentence of 11 years in prison – condign punishment by High Court.

 

 

 

JUDGMENT

 

 

DR. TWUM J.A.

 

[1]     The appellant was tried and convicted of the offence of rape by the Pigg’s Peak Magistrates Court.  He was remitted to the High Court for sentencing pursuant to section 292 (1) of the Criminal Procedure and Evidence Act because the Crown alleged and proved that the rape was accompanied by aggravating circumstances.  Under s 185 bis of the Criminal Procedure and Evidence Act 67/1938, the minimum penalty is 9 years in prison.  This was above the sentencing jurisdiction of the Senior Magistrate, Mr. H. Khumalo.  The accused was therefore referred to the High Court for sentencing.

 

[2]     In due course, the appellant appeared before Ota J sitting at the High Court, Mbabane.  Her Ladyship enquired into the circumstances of the case as she was mandated to do under section 293 (3) of the Criminal Procedure and Evidence Act.  She examined the record carefully.  In particular, she noted that the appellant was positively identified by the complainant as the person who raped her.  It was also on record that at the earliest opportunity, the complainant reported to her mother and her uncle that she had been ravished by the appellant.  The complainant testified that she resisted the appellant’s demand to have sex with him but he threatened to kill her and he undressed her and put his penis into her vagina and forcibly made love to her.  In any event, as the complainant was only 10 years old at the time of the rape, she could not have given valid legal consent to the sexual intercourse.  The complainant completed her evidence by saying that the appellant did not use a condom.

 

[3]     Next, Her Ladyship considered the evidence of the appellant given before the Magistrate’s Court.  She concluded that from a careful examination of the record, she was satisfied that the Crown proved its case against the appellant beyond a reasonable doubt and confirmed his conviction as having been legitimately recorded. 

 

[4]     Before passing sentence on him, the appellant was invited by Her Ladyship to put any matter before the court which he though might persuade the court to mitigate his sentence.   In response, the appellant begged for leniency.  He said he was 16 (sic) years old and doing Std V.  He pleaded for a suspended sentence.  His grandmother also begged for leniency and a suspended sentence on behalf of the appellant.  The appellant added that he would have to look after his grandparents since his father had passed away.  He corrected his age at the time of commission of the offence to be 18, not 16.

 

[5]     In response, Crown counsel called for a punitive sentence to serve as a deterrent to other youth.  He emphasized that the type of ravishment visited on the complainant, according to the medical report, was abhorrent and uncivilized.

 

[6]     In conclusion, Her Ladyship informed the appellant that she could not suspend any part of his sentence since that was prohibited by section 313 (1), (2) of the Criminal Procedure and Evidence Act in convictions for murder, RAPE and robbery.  The appellant was then sentenced to 11 years imprisonment.  The commencement date was back-dated to 26^th February 2010, the day he was arrested and taken into lawful custody to abide his trial.

 

          The appeal

(7)     On 24^th January 2013, the appellant applied by letter for leave to appeal against his sentence.  I take this to be a substantive appeal.

 

(8)     In his grounds of appeal noted in his letter, he pleaded for leniency from this court on account of his age at the time he committed the offence – 18 years.  He alluded to what he called similar offence where the accused was sentenced to 10 years imprisonment, 2 years of which were suspended for 3 years by the same trial Judge.  The appellant gave no particulars of the crime of the accused!  I am persuaded that this allegation of different sentences meted out to accused persons similarly circumstanced, by the learned Judge is not true, particularly, the claim that part of the sentence was suspended.  This allegation was not raised during the hearing of the appeal and it is dismissed as scandalous.  In any event, the punishment meted out to the appellant is fair to the appellant himself, the victim and the interests of society as a whole. 

 

(9)     Indeed, the trial Judge overlooked an important piece of depraved conduct practised on the complainant by the appellant.  In the Magistrate’s Court, the complainant said that apart from the appellant forcibly having sexual intercourse with her, he ordered her to suck his penis.  She said this happened two times.  In my view, this was a particularly revolting way of ravishing a young innocent girl of 10 years.

 

[10]   I was minded to increase the sentence but after a very careful and anxious consideration of the age of the appellant and the fact that notwithstanding the very serious condemnation of the treatment young men in the Kingdom subject women of this country to, the learned trial Judge thought 11 years was a condign punishment.  I therefore restrained myself.  It is my hope that the appellant will come to realize the folly of his ways and reform to be a useful citizen.

 

[11]   The sentence of 11 years imprisonment is hereby affirmed.  It is back-dated to 26^th February 2010, the date of the appellant’s arrest and lawful detention pending trial.

 

                                                                          _____________________                                         

                                                                   DR. SETH TWUM

                                                                    JUSTICE OF APPEAL

          I agree.                                    

 

____________________

                                                                   A.M. EBRAHIM

                                                                   JUSTICE OF APPEAL

 

I also agree.                                               

____________________

                                                                   M.C.B. MAPHALALA

                                                                   JUSTICE OF APPEAL

 

 

COUNSEL:

For Appellant      :        In person

For Respondent   :        Ms Lomvula Hlophe