CHIEF JUSTICE ISSUES STRICT ORDER ON RAPE CASES

MBABANE - Due to the serious increase and prevalence of rape cases with aggravating circumstances, all such cases will forthwith be heard by the High Court.

The offence of rape consists of aggravating factors; when the offender is in a position of trust or confidence of the complainant, the rape of a child below the age of 12 years, the rape of  the complainant by his/or her biological father, where the complainant is an elderly or person with disabilities, rape by more than one offender (gang-rape), multiple rapes such as where the complainant is repeatedly raped in one episode, for example by being kidnapped and repeatedly raped during the night and where the complainant is manifestly pregnant. The list is not exhaustive.
Chief Justice (CJ) Bheki Maphalala has issued a directive informing all judicial officers that all such matters would now be heard by the High Court.

Circumstances

In the past, principal magistrates were at liberty to hear rape cases with aggravating circumstances and would sentence the accused to a period not exceeding 15 years. The sentencing jurisdiction of principal magistrates does not exceed 15 years.  In the directive, the CJ stated that this was with effect from December 1, 2022.  The directive has been copied to the director of public prosecutions (DPP), the national commissioner of police, the commissioner general of His Majesty’s Correctional Services and all practising attorneys.

Sentencing

In the directive, the CJ also said all part-heard cases of rape with aggravating circumstances pending before the magistrates courts would be referred to the High Court for sentencing if in the opinion of the presiding officer, the sentence of imprisonment, likely to be imposed upon conviction, would exceed 15 years as contemplated by Section 72 of the Criminal Procedure and Evidence Act. “All fresh cases of rape with aggravating circumstances pending before the magistrates courts will be forwarded to the registrar of the High Court for enrolment,” reads part of the directive.

The directive by the CJ will see accused persons who had been arrested for rape with aggravating circumstances  being sentenced to more than the 15 years as the High Court has unlimited sentencing.  At the magistrates courts, accused persons charged with rape with aggravating circumstances were guaranteed that the court would not sentence them to more than 15 years. Section 3(9) of the Sexual Offences and Domestic Violence (SODV) Act states that where it has been established that the rape was committed with aggravating factors, the offender shall on conviction be liable to a term of imprisonment not exceeding 30 years if the complainant is or was 10 years of age or below at the time the offence was committed. In the case of a subsequent offence, the sentence would not exceed 40 years.  

Conviction

The above section further provides that; if the complainant is or was between 10 years of age and 18 years  at the time the offence was committed, the accused would upon conviction be liable to a sentence not exceeding 25 years and in the case of a subsequent offence, not exceeding 30 years.
The law also states that if the complainant was an adult at the time of the offence, the accused person would upon conviction be liable to a sentence not exceeding 20 years in case of a first offence and in case of a subsequent offence, not exceeding 30 years.

“Notwithstanding the provisions stipulated in any other Act, such sentences may not be suspended or postponed,” reads part of the Act. Meanwhile, it was previously reported that 61 women were raped at least  every month in the Kingdom of Eswatini. It was further observed that cases of gender-based violence (GBV) that manifested mainly through rape and intimate partner killings (passion killings),  were another persistent challenge in the country’s overall crime landscape. The most harrowing are the cases where young children and elderly women were subjected to the horror of rape. The High Court has unlimited power to sentence convicts, and the trend, based on a past judgment, was that fathers who raped their own daughters could get 20 years in jail.

Remanding

This directive was also communicated by Acting Mbabane Principal Magistrate Sifiso Vilakati when remanding those facing fresh charges of rape yesterday. Among those who appeared for the fresh charge of rape was Thabo Simelane (33) of Dalriach East in Mbabane. Simelane, being an adult, is accused of having unlawful sexual intercourse with a 17-year-old minor.  The charge sheet reflected that Simelane did not use protection when performing the unlawful act, resulting in him exposing the minor to sexually transmitted diseases.

“You are remanded in custody until December 6, 2022 pending committal to the High Court. The Chief Justice has issued a directive that rape matters with aggravating circumstance will now be dealt with at the High Court as with effect from today. This means that any person accused of a fresh rape charge with aggravating circumstances will no longer be tried at the magistrates courts. The magistrates will only proceed with the ongoing trials,” Vilakati told Simelane . Worth noting was that before the directive, some rape cases with aggravating circumstances were dealt with by principal magistrates.

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