FRUSTRATED RAPE CONVICTS TAKE MAGISTRATES TO COURT

MBABANE - At least two convicts have taken the magistrates who presided over their cases to court, for allegedly failing to give reasons for finding them guilty five months ago.

Vusi Mamba and Bheki Dlamini have filed separate applications at the High Court, where they are seeking orders directing and compelling Pigg’s Peak Magistrate Simangele Mbatha and Shiselweni Principal Magistrate Florence Msibi respectively to forthwith dispatch the court record setting out the reasons for convicting and sentencing them.

They both want to be furnished with the reasons for conviction and sentencing for the purpose of lodging appeals.
Mamba and Bheki are currently serving sentences of 10 years imprisonment which were meted on May 23, 2019 after they were found guilty of rape. Both convicts are represented by Leo Ndvuna Dlamini of S.A. Nkosi Attorneys.

According to Mamba, Magistrate Mbatha has allegedly not prepared or written reasons for the conviction and sentence five months later. He said this was despite repeated requests for the court record in terms of the Constitution.

“First respondent (Magistrate Mbatha) has not written the reasons for the conviction and sentence as at May 23, 2019. The first respondent who convicted and sentenced the applicant (Mamba) at the Pigg’s Peak Magistrates Court is refusing or neglecting to produce and submit the written reasons for the judgment on conviction and sentence for the sake or purpose of lodging the grounds of appeal from May 23, 2019 to date,” Mamba alleged.

The veracity of these allegations is still to be tested in court. The magistrates are yet to file their responding papers in the event they are opposed to the applications.  Mamba pointed out that he was allegedly convicted and sentenced without written reasons to justify why he was sentenced to a period of 10 years behind bars, without an option of a fine.

“I verily believe that it is my Constitutional right to be convicted and sentenced, and to be afforded the court judgment on conviction. It follows that in the present case the first respondent is still trying to write the reasons for the conviction and sentence up to the day of making this application.”

Unconstitutional

Mamba told the court that the conduct of the magistrate was allegedly unconstitutional in that it violates the right of appeal, as he cannot lodge an appeal timeously under the present circumstances.

“I verily believe that this is gross injustice, illegal and unreasonable on the applicant, more particularly in a Constitutional state and the new Constitutional order in Eswatini.

he delayed submission of the court record is caused by the first respondent and it has lasted for four months as at the date of this application much against the allowed period for the noting of an appeal at the High Court of Eswatini.” He went on to deny committing the offence of rape in 2016. Mamba informed the court that on the day of the incident, he was returning from the Republic of South Africa and he went on to the house of the complainant at 11pm as requested by her and explained to her why he arrived so late.

He submitted that he had a love relationship with the complainant that started in 2016 and they had sexual intercourse as the love affair progressed. According to Mamba, the doctor who gave evidence during his trial allegedly did not have a medical report in his possession for presentation as evidence. Mamba maintained that the sexual intercourse was consensual.

“Consenting to sexual intercourse is not rape under Roman Dutch common law as it is the law in Eswatini in terms of Section 252 of the Constitution Act 2005.”

Bheki informed the court that the matter was urgent for the purpose of noting an appeal.
 The matters are pending in court.

Post your comment

Your name:

Your e-mail address:

Add your comments:

Please enter the code you see in the image:

Image:

Code: