Home » High Court » 2011 » [2011] SZHC 6 » R v Masinga

R v Masinga

Case No: 
21/07
Media Neutral Citation: 
[2011] SZHC 6
Judgment Date: 
14 February 2011

 

 

IN THE HIGH COURT OF SWAZILAND

 

 

HELD AT MBABANE              CRIMINAL TRIAL NO. 21/07

 

 

In the matter between:

 

 

REX

 

VS

 

SIKHUMBUZO MASINGA

 

 

CORAM                                                 MCB MAPHALALA, J

 

FOR CROWN                                         MR. S. FAKUDZE

FOR DEFENCE                                             MR. M.S. DLAMINI

Summary

 

Criminal Trial – charge of Rape on various occasions on a girl of twelve years –

charge accompanied by aggravating factors as envisaged by Section 185 bis (1) Criminal Procedure and Evidence Act No. 67 of 1938 – Proper sentence in Rape cases – youthfulness of accused at the time of committing offence Mitigating Factor – convicted as charged and sentenced to nine years imprisonment.

 

 



 

JUDGMENT

14THFEBRUARY 2011

 



 

[1]    The Accused was charged with Rape in that on diverse dates in 2005 and 2006 at Sitsatsaweni Area in the Lubombo Region, he unlawfully and intentionally had sexual intercourse with Delisile Matsenjwa a female minor of twelve years old who in law is incapable of giving consent to sexual intercourse.  He pleaded guilty to the charge, and, the Crown accepted his plea.

 

[2]    A Statement of Agreed Facts signed by the parties was admitted in evidence and was marked Exhibit 1.  It provides that:

 

“Whereas the accused is indicted for the crime of Rape with aggravating factors in that upon diverse dates during the period of the years 2005 and 2006 and at or near Sitsatsaweni area in the Lubombo region the said accused did intentionally have unlawful sexual intercourse with Delisile Matsenjewa, a female minor of twelve (12) years, who in law is incapable of giving consent to sexual intercourse.

 

The accused pleaded guilty to the offence of rape with aggravating factors as set out in the indictment and the Crown accepts the plea.  The accused admits that:

  1. On diverse dates and on three occasions during the period of the years 2005 and 2006, he had unlawful sexual intercourse with Delisile Matsenjwa.

 

  1. Delisile Matsenjwa was a minor below the age of sixteen (16) years who in law was incapable of giving consent to sexual intercourse during the three occasions the accused had unlawful sexual intercourse.

 

  1. The unlawful sexual intercourse with the said Delisile Matsenjwa is accompanied by aggravating circumstances in that:

 

  1. Delisile Matsenjwa, the complainant, was of a tender age.

 

  1. The accused sexually abused Delisile Matsenjwa, the complainant, more than once and on diverse-occasions.

 

  1. It is agreed that the Medical Examination report compiled by the Medical Officer at Good Shepherd Hospital on the 2nd February 2006 be admitted to form part of the evidence in this matter.

 

  1. The accused had unlawful intercourse with Delisile Matsenjwa whilst inside a bedroom he shared with her and other three minor girls who were present and asleep on the occasions he committed the offence and the complainant did not raise any alarm when such took place.

 

  1. The complainant related to PW2, Tsandzile Magagula that the accused was having intercourse with her.  The duo then reported the matter to PW4, Fikile Dlamini who was their guardian and also the accused person’s step grandmother.  The children, including the accused stayed with PW4 at her homestead and this is where the rape took place.

 

  1. The complainant fled and went to her aunt’s place after hearing other pupils talking about her ordeal at school.  She related the sexual abuse to her as she did to PW4.  The following day, after spending the night at her aunt’s place, Lomthandazo Masina, the matter was reported to the police and subsequently taken for medical examination at Good Shepherd in Siteki.

 

  1. The accused was fifteen (15) years old when he committed the said offence.

 

  1. The accused is remorseful for his actions and at the time the crime was committed he was of tender age.

 

  1.    The accused was sharing a room with 4 girls and he was the only boy in the room.

 

  1.   The accused was charged on the 6th February 2006 but not incarcerated. On the 27th February 2006 he appeared in court and was released to the custody of his aunt.

 

[3]    The charge was accompanied by aggravating factors as envisaged by Section 185 (bis) (1) of the Criminal Procedure and Evidence Act No. 67 of 1938 in the following terms:

             

              (a) The complainant was twelve years old.

      (b) The complainant was sexually abused on various

           occasions in 2005 and 2006.

  1. The accused exposed the complainant to sexually transmitted infections such as HIV/Aids as he did not use a condom in all the instances he committed the offence.

 

[4]    The Medical Report showing the examination of the complainant was admitted in evidence as exhibit 2.  There was evidence of penetration of the vagina, the hymen was torn and a white discharge was found indicating a sexually transmitted infection.

 

[5]    The accused is accordingly convicted on his plea of guilty. The evidence adduced by the Crown is sufficient to prove the guilt of the accused beyond reasonable doubt.  Furthermore, section 238 (1) of the Criminal Procedure and Evidence Act No. 67 of 1938 provides as follows:

       

“If a person is arraigned before any court, upon any charge has pleaded guilty to such charge… and the prosecutor has accepted such plea, the court may, if it is the High Court, and the accused has pleaded guilty to any offence other than murder, sentence him for such offence without hearing any evidence.”

 

[6]    It is evident from the evidence adduced by the Crown that there was penetration of the complainant; there was no evidence of semen found in the complainant. P.M.A. Hunt, South African law and procedure Volume II, 2nd edition at pages 440-441 states as follows:

 

“There must be penetration, but it suffices if the male organ is in the slightest degree within the female body.  It is not necessary in the case of a virgin that the hymen should be ruptured, and in any case it is unnecessary that semen should be emitted.”

 

[7]    Incidentally, in this case, the accused has pleaded guilty to the charge. He is accordingly found guilty as charged.

 

[8]    With regard to sentencing, the accused told the court that he is a first offender and that he has pleaded guilty to the charge; hence, he urged the court to impose a lenient sentence.

 

[9]    In arriving at a proper sentence, I have to take into account the seriousness of the crime committed, the personal circumstances of the accused as well as the interests of society.  I will further take into account the prevalence of sexual offences in this country which is very alarming in respect of both young children and adult women.  The Courts have a fundamental duty to protect society against the scourge of sexual assaults.   In doing so, the courts have to mark their abhorrence by imposing appropriate deterrent sentences. This court has imposed sentences ranging from nine years to twenty years imprisonment in cases of this nature:                                                                                                                           

 

  • Eric Makwakwa v. Rex Criminal Appeal No. 2/2006

 

  • Moses Gija Dlamini v. Rex Criminal Appeal No. 4/07

 

  • Malmuli Obi Xaba v. Rex Criminal Appeal No. 7/07

 

  • Mandla Vilakati v. Rex Criminal Appeal No. 18/07

 

  • Sam Du Pont v. Rex Criminal Appeal No.4/08

 

  • Mgubane Magagula v. Rex Criminal Appeal No. 32/2010

 

  • Sifiso Cornelius Ngcamphalala  v. Rex Criminal Appeal No. 34/03

 

  • Sipho Lucky Fakudze v. Rex Criminal Appeal No. 19/09

 

  • Sandile Shabangu v. Rex Criminal Appeal No. 15.07

 

[10]  Furthermore, Section 185 (bis) (1) of the Criminal Procedure and Evidence Act provides as follows:

               

        “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.”

 

[11]  It is common cause that aggravating circumstances do exist in this matter as stated in paragraph 3 above.   The complainant was twelve years old and a virgin when the sexual abuse occurred over a period of two years on various diverse occasions; and, the accused did not wear a condom each time he abused the complainant, and, thus exposing her to HIV/Aids and other Sexually Transmitted Diseases.

 

[12]  The accused was fifteen years old when he committed the offence.  He is remorseful for his actions since at the time he committed the offence he was still of tender age.  The accused was sharing a room with four girls and was the only boy in the room.  The accused was charged on the 6th February 2006 but not incarcerated; on the 27th February 2006, he appeared in court, and was released to the custody of his aunt.

 

[13]  It will not be in the interests of justice to send the accused to prison for a long period of time because of his personal circumstances as stated above; particularly, his age of fifteen years when the offence was committed.  I will sentence the accused to nine years imprisonment.

 

 



 

                                                        M.C.B. MAPHALALA

                                                JUDGE OF THE HIGH COURT