High Court of Swaziland

Sentence – rape of child

CRIM. CASE NO.142/99

In the matter between:

REX

VS

ROMAO SITOE

CORAM : MASUKU J.

For the Crown : MR B.J. SIMELANE

For the Accused : IN PERSON

JUDGEMENT ON SENTENCE

29/03/01

At this stage of the proceedings, three competing interests arise for a proper balance by the Court. These are referred to in legal parlance as the triad i.e. the nature of the crime, the interests of the society and the interests of the accused.

Regarding the approach and the considerations to be taken into account at this stage, I cannot do no better than cite the judgement of Jones J. in S v QAMATA 1997 (1) SACR 479 AT 480, where the learned Judge eloquently stated as follows:-

“It is now necessary for me to pass sentence. In doing so, it is proper to bear in

mind the chief objectives of criminal punishment, namely, retribution, the

prevention of crime, the deterrence of criminals, and the reformation of the

offender. It is also necessary to impose a sentence which has a dispassionate

regard for the nature of the offence, the interests of the offender, and the interests

of the society. In weighing these considerations I should bear in mind the need:

and the reasons why they commit serious crimes, by avoiding an overly harsh

sentence;

imposing an appropriate, and, if necessary, a severe sentence; and

(c) to pass a sentence which is balanced sensible, and motivated by sound reasons

and which will therefore meet with the approval of the majority of law abiding

citizens. If I do not, the administration of justice will not enjoy the confidence

and respect of society.

In this case, you hoodwinked the frightened and unsuspecting child into going into a field with you. Out of obedience to a man senior in age and after some reassuring sentiments you expressed, she reposed her confidence in your treacherous assurances to her peril. This is an aggravating factor.

Furthermore, this girl was at the time only ten (10) years old and clearly incapable of consent to sexual intercourse. She clearly could not be regarded ready for intercourse with a man of your age. You took advantage of her age and stature and inflicted some injuries, especially to her neck. The question is why did you have to assault such a young and harmless child in order to cause her to submit to your sexual appetite? Even animals like dogs, which act according to instinct do not lower themselves to such shameful and morally abhorrent acts which would see them mating with puppies. You would do a lot emulate the examples set for you by animals.

In the case of R v MAJAHA MNISI AND ANOTHER CRIM. CASE NO. 73/98, I had occasion to state the following regarding this despicable crime of rape:

“Rape is an innately degrading and dehumanising crime, the effects of which can

hardly be quantified. It violently robs the victim of herself esteem, self-worth and

confidence. It constitutes a flagrant violation of the woman’s femininity and

relegates her to an object, devoid of feeling and entirely lacking in her God-given-

right to say “No!!”.

These remarks are apposite in this case, save to mention that the victim in this case is regarded at law as being incapable of even saying “Yes”. I however wish to add the following, that rape is a crime of a diabolical nature and which offends the sensibilities

of every normal decent human being. It is capable instantaneously of affecting the total woman in all her realms. It bruises her physical body; crushes her spirit; wounds her emotions and disenfranchises her soul, which is the seat of all decisions. Rape mercilessly and irreversibly pricks any bubble of dignity and wholesomeness that the woman enjoyed prior to the attack.

I take into account factors that are favourable to you which include the following:-

I consider also that you have asked the Court to backdate the sentence and to suspend a portion thereof. I have considered these and state that a crime like rape cannot be committed unintentionally. Furthermore, you must consider the consequences of your action before engaging in crime. In this case, you should have considered your weak state of health at the time you committed the offence and you should not use such factors as bargaining tool to demand clemency.

Having considered the factors that weigh in your favour, there is nothing to gainsay the fact that this is a very serious offence. Furthermore, it is accompanied by aggravating circumstances and Parliament found it fitting to prescribe a minimum sentence of nine (9) years in such cases. Yours will not be treated differently.

Rape has become a national crisis in this Kingdom and instances of children of 10 and below being victims of rape are on the rise. The Courts have, in such cases the responsibility to mete out stiff sentences which will send clear and unambiguous messages that Society is disgusted by such behaviour. Women and girls must feel protected from ravenous wolves like you who are out to violate and condemn them to the doldrums of self-pity, depression and outrage towards the men-folk. This must be reversed.

Reverting to S v QAMATA (supra), it is my view that your case falls under (b) and you deserve a severe sentence to translate the Society’s outrage. Perchance, the administration of justice will continue to enjoy the confidence and respect of society. Your interests, in this case must be rendered subservient.

You will be sentenced to fifteen (12) years imprisonment. The sentence will not be backdated.

T.S. MASUKU

JUDGE

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