SOCIALITE ‘GAUZEN’ JAILED 10 YEARS FOR RAPE

MBABANE - “I was not as drunk as to submit to sexual intercourse with a male, yet I am lesbian.”

This was a  portion of *Sindi’s evidence that was considered by Mbabane Principal Magistrate Fikile Nhlabatsi when dealing with the rape case involving Mbabane socialite Menzi  ‘Gauzen’ Gama, who was yesterday sentenced to 10 years imprisonment without an option of a fine. Sindi made the statement in response to Gama, who had put it to her during cross-examination that she was too drunk to remember what happened on the day of the incident. Gama claimed that Sindi was highly intoxicated after imbibing alcohol and smoking dagga.

Gama put it to Sindi that she consented to the sexual intercourse before they drove to the house after dropping her friends at their various destinations, from Solani’s Shisanyama. It should be noted that Sindi repeated her statement when recalled to the witness stand during the course of the trial. Worth noting is that in rape cases, the Crown has a duty to prove lack of consent, as it forms part of the essential elements in proving the commission of an offence. The Crown also has a duty to prove the identity of the accused person and the commission of the offence.

In the case of Gama, the identity of the accused and the act of sexual intercourse was not in dispute. Gama only disputed the lack of consent, alleging that the complainant was too drunk to remember what actually took place on the day in question. Nhlabatsi stated that in law, intoxication was not a defence in rape cases. She said the court had learnt from the Crown’s evidence that the intoxication was voluntary. The principle magistrate said even though Sindi had agreed with the defence that she was drunk after having smoked dagga and consumed alcohol, leaving the court with two versions to rely on, the position of the law was that there could not be real consent if one had sexual intercourse with an intoxicated person.

“The court observes that as the evidence stands, whether she was sober, intoxicated or extremely intoxicated, the Crown has proven its case beyond reasonable doubt. The said consent was not real consent,” said Nhlabatsi. When mitigating on the sentence, Gama (35) implored the court to pay attention to his age as that was an important factor in mitigation.

Normal

Gama submitted that the court should consider passing a sentence that would enable him to be able to pick up the pieces of his life after serving his sentence and live a normal life again. He told the court that he studied Graphic Design at Limkokwing University of Creative Technology (LUCT) and was currently unemployed. Gama stated that he had no children and that both his parents died. He said he was a first-time offender, who had never been convicted of any offence previously. Gama, during mitigation, cited an appeal judgment under Case No: 24/2000 of  Themba Mabuyakhulu and three others versus the King, where Justice Leon JP stated that ‘sentencing an accused peron is not an exact science but the court must do its best to balance the various, and sometimes competing, aspects of the crime, criminal and the interest of society’.

He also cited the case of  State versus Qatama 1997 (1) at 480, where it was stated that ‘in weighing these considerations I should bear in mind the need (a) to show an understanding for the weakness of human being and the reasons why they commit serious crimes, by avoiding an overly harsh sentence’. Gama implored the court to consider the Supreme Court judgment in the case of Jeremiah Shongwe versus the King in the case No. 6/2003. He said the appellant was sentenced to nine years imprisonment without an option to pay a fine for the offence of rape.

He submitted that in the case of Luke Mhlanga versus the King, Case No. 16/2008, the accused was sentenced to 10 years imprisonment without an option of a fine for the rape offence, while in Benjamin Dlamini versus the King in appeal Case No.41/2011, the appellant was sentenced to 12 years imprisonment without the option of a fine for the rape of a 13-year-old minor.

Weakness

Nhlabatsi said having weighed all the evidence, its weaknesses and strengths, probabilities and improbabilities, it was the court’s considered view that the Crown had proven its case beyond reasonable doubt that there was no consent to the sexual intercourse. She said rape was a serious offence that offended the right against the survivor’s right, dignity, privacy and humanity. She said rape was disgusting, horrible and despicable as the perpetrators did not only undermine the survivor, but took away their dignity and self-esteem.

Nhlabatsi said the society was concerned about the increasing rape cases. “The accused person is educated and he ought to have known that his conduct was unlawful. The court has considered the accused personal circumstance,” Nhlabatsi said before sentencing Gama to 10 years imprisonment without an option of a fine. Gama was arrested in 2018 and he was out on bail. He was found guilty after being accused of raping Sindi, whom he had offered a lift, together with her friends. They were from enjoying themselves until the early morning hours at Solani’s Shisanyama at Msunduza. Gama had unlawful sexual intercourse with Sindi after taking her to his house, after dropping off her friends at their various residences.
*Not real name to protect survivor.

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