9-year sentence for rape was not harsh'

The judgment dismissing Melusi Maseko’s appeal was delivered by Judge Bheki Maphalala at the Supreme Court yesterday.

Maseko was convicted of raping a 15-year-old girl.

He was charged in terms of Section 185 bis of the Criminal Procedure and Evidence Act of 1938 in that the rape was accompanied by aggravating circumstances.

The Crown had alleged that Maseko had infected the survivor with a sexually transmitted disease, but however, failed to prove this allegation beyond reasonable doubt.

He was tried and convicted by the Nhlangano Magistrates Court and subsequently remitted to the High Court for sentencing in terms of Section 292 (1) of the Criminal Procedure and Evidence Act.

The High Court, being satisfied that the conviction by the magistrate was appropriate, imposed a sentence of nine years imprisonment.

The sentence was backdated to the date of his arrest.

He then appealed against both the conviction and the sentence.

He appeared in person and Sikhumbuzo Fakudze represented the Crown.

In his grounds of appeal, Maseko argued that he was innocent of rape.

He further argued that the evidence of the Crown witness was contradictory and that the medical report proved that he did not commit rape.

The survivor told the court that she was very aggrieved such that she was still crying when she reported her ordeal to her mother.

"The Crown has also established the identity of the accused beyond reasonable doubt.

The complainant resides in the same neighbou-rhood as the appellant, and both had known each other for some time," Judge Maphalala held.

His Lordship accordingly confirmed the conviction.

When the learned judge took on the sentence, he stated that sentence was solely the discretion of the trial court.

"An appellate court will not generally interfere, unless there is a material misdirection resulting in a miscarriage of justice or that the sentence was wrong in principle or that it was shockingly harsh or that it is a sentence which induces a sense of shock," Maphalala said.

The judge also held that the appellant had not shown the existence of such misdirection in this case.

His Lordship held further that the trial court took into account the personal circumstances of the appellant, the seriousness and gravity of the offence as well as the interests of the society.

He then dismissed the appeal against sentence.

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