IN
THE HIGH COURT OF SWAZILAND
HELD
AT MBABANE
CASE
NO. 80/11
In
the matter between:
REX
VS
MPENDULO
SIBANDZE
CORAM:
OTA J.
CROWN:
MR. S. FAKUDZE
ACCUSED:
IN PERSON
JUDGMENT
OTA
J.
[1]
The accused Mpendulo Sibandze was arraigned before the Magistrates
Court charged with the crime of rape. The crown alleged that upon or
about the 23rd
October 2005, at or near
Mangwaneni area in the Hhohho Region the said accused did wrongfully
and intentionally have unlawful sexual intercourse with one K M 19
years of age without her consent.
[2]
The crown further alleged that the rape was accompanied by
aggravating circumstances in terms of Section 185 bis of The
Criminal Procedure and Evidence Act 67/1938, as
amended (CP & E) in that:
1.
The accused did not use a condom exposing the complainant to sexually
transmitted diseases and HIV/AIDS.
2.
The Rape was accompanied by violence as accused threatened the
complainant with a knife.
]3]
The accused pleaded not guilty to the charge. Thereafter, a trial was
conducted in which the crown paraded a total of 4 witnesses in proof
of the offence. For his own part, the accused testified on oath and
called one other witness in support. The record demonstrates that the
court a quo subsequently in it's judgment found the accused guilty of
rape with aggravating factors and convicted him accordingly as
charged. Thereafter, the court remitted this case to the High Court
for sentencing in terms of Section 292 (1) of the CP & E.
[4]
It is incumbent upon me at this juncture to review the record of the
court a quo, to ascertain for myself whether the conviction of the
accused before that court was proper before proceeding to sentence.
[5]
After a careful consideration of the record, I must say that I agree
entirely with the court a quo on it's return of the verdict of guilty
and the consequent conviction of the accused.
[6]
There is no doubt in my mind that the crown proved the identity of
the accused beyond a reasonable doubt a quo. Even though this offence
was committed on the 23rd
of October 2009, and it was not
until the 10th
December 2009, that the
complainant saw the accused at the Swazi Plaza, and alerted the
Police Officers on duty thereat, leading to the accused's arrest, I
have no doubt from the record that the complainant positively
identified the accused as being her attacker. The complainant's
evidence on this wise was corroborated by the evidence of PW2,
Nosipho Bulunga, in whose company the complainant was on her way to
an evening church service at the material time the accused accosted
the both of them and subsequently made away with the complainant whom
he proceeded to rape. The complainant and PW2 told the court that
there were street lights on at the material place and material point
in time when the accused accosted them, thus they could positively
identify him. Both witnesses also told the court that the accused has
small side burns and looks like Senzo of Generations Soap Opera, thus
their ability to identify him inspite of the fact that they did not
know him prior to the incidence. Their evidence on the identity of
the accused was not shaken under cross examination.
[7]
There is also the fact that both the complainant and the accused stay
at Mangwaneni in Mbabane where this incidence took place, and that
the accused by his own showing knows the complainant even though he
alleged that he had never approached her.
[8]
The accused in his defence laboured to convince the court that he was
already at home at the material time of the incidence on the day in
question. He however failed to call any witnesses to substantiate his
claim on this wise.
[9]
I agree with the court a quo that the accused's witness did not tell
the court where the accused was at the material time of this
incidence.
[10]
It is also my view based on the record, that the crown proved the
fact of sexual intercourse beyond a reasonable doubt. The
complainant's evidence was that the accused had sexual intercourse
with her on the day in question. The fact of the said sexual
intercourse is corroborated by ext A, the medical report of the
medical examination carried out on the complainant by PW3, Dr.
Lungile Dlamini at the Mbabane Government Hospital on the same day of
the rape incidence, as well as the evidence of PW3. PW3 told the
court that when he examined the complainant on the day in question it
was obvious that she had been penetrated. This is also confirmed by
ext A.
[11]
Finally the fact that the complainant did not consent to the sexual
intercourse is also replete from the record of the court a quo.
Complainant's evidence was that the accused threatened her into
submission to the sexual intercourse with the knife which he was then
welding and that this is why she failed to raise an alarm at the
material time of the rape. This evidence was not impeached during
cross examination. In conclusion, I find that the court a quo
properly convicted the accused.
[12]
Judgment on
sentence
In
mitigation before the court a quo, the accused begged for leniency.
He said he is 30 years old, not married, but has 4 children who are
still young. That he is educated as far as form V. That he is a
sickly person suffering from tuberculosis. In mitigation before this
court on the 26th
of June 2011, the accused again
begged for leniency that he is the breadwinner of his family and his
children are not benefiting from the free Education Program. That he
knows that the Government does not have the intention of condemning
the youth but to correct them.
[13]
In response Mr Fakudze for the crown told the court that the accused
does not appear to be remorseful. That the complainant who was 19
years at the time of the incidence was on her way to church when the
accused grabbed her and threatened her into submission to sexual
intercourse with the knife which he was welding. He called for a
fitting sentence contending that the offence committed is a serious
one.
[14]
In passing sentence, I am obligated by law to consider the triad,
that is, the seriousness of the offence, the interests of the
society, the personal interests of the accused and the peculiar
circumstances of the case. These factors were exploded by the Supreme
Court in the case of Chicco
Manyanya Iddi and two others V Rex Criminal Appeal No's 03, 09 and
10/2010. See also
Mfanasibili Gule V The
King Criminal Appeal case No 2/2011 paragraph 17.
[15]
In honour of the foregoing duty placed on me by law, I have
considered that the accused is a first offender. I have considered
that the accused is remorseful. I take heed of his allegation that he
has four young children all still school going. I am also in sympathy
with the accused for his ailment, Tuberculosis.
[16]
Having weighed the factors ante, it is however a well established
fact that the offence committed by the accused is regarded by the
entire society as a very grievous one. That is why parliament saw it
fit to advocate a minimum mandatory sentence of 9 years for rape
where aggravating factors are found, vide Section 185 bis (1) of the
CP&E.
[17]
Mpendulo Sibandze, the mood of the society to the offence you
committed was buttressed by the Supreme Court in the case of Mgubane
Magagula V The King Crimanal Appeal No.32/2010, wherein Moore JA,
speaking the mind of
the court, pegged the appropriate range of sentence for the offence
of rape with aggravating factors to be between 11-18 years.
[18]
In casu, Mpendulo Sibandze, you accosed this 19 year old complainant
who was minding her business on her way to church. You dragged her to
the bush and threatened her with a knife, forcing her to submit to
sexual intercourse with you. I cringe to imagine the terror this poor
girl must have experienced. The use of the knife to my mind is
clearly an aggravating factor. See Paul
Dlamini V R 1982-6 S.L.R (part 2).
[19]
Furthermore, you did not use a condom when you raped the complainant,
thereby exposing her to the risk of sexually contracted infections
such as HIV/AIDS. This also to my mind is an aggravating factor, in
view of the prevalence of this disease in this day and age which has
engendered a world wide campaign on safe sex achieved through the use
of condoms. I want you to know Mpendulo Sibandze, that the nefarious
activity you orchestrated on the complainant has the ill consequence
of damaging her not only physically, but psychologically and
emotionally for life.
[20]
It is thus in my view inexorably apparent that the interest of the
society, especially in view of the prevalence of this sort of offence
in the Kingdom, demands that a fitting sentence be meted out for the
offence you committed. In the circumstances, I sentence you to 13
years imprisonment to serve as a deterrent to others who are even now
plotting their evil enterprise upon unsuspecting females. Sentence
backdated to the 10th
of December 2009 being the date
of arrest of the accused. It is so ordered. Right of Appeal and
Review explained.
DELIVERED
IN OPEN COURT IN MBABANE ON THIS THE 11 DAY
OF JULY 2011
OTA
J.
JUDGE
OF THE HIGH COURT
