Cri. Appeal Case No. 75/96
In the matter between:
Alfred Boy Lokothwayo Appellant
CORAM: S.W. SAPIRE, ACJ
B. DUNN, J
FOR THE APPELLANT: Mr. L. Maziya
FOR THE CROWN: Mr. J. Maseko
The accused said to be a man of 29 years of agewas charged in the Subordinate Court for the District of Manzini held at Mliba before the Magistrate L.T. Nkambule. The charge was one of rape alleging that the accused did “wrongfully and unlawfully and intentionally have sexual intercourse with A, S/F/J 18 years without her consent”.
To this charge the accused pleaded not guilty. The proceedings were unduly protracted and the accused first appeared on the 14th of November, 1995. The trial commenced on the 9th of January 1996 when the accused was called upon to plead.
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Some evidence was led that day but the case was repeatedly remanded thereafter with the accused in custody until the hearing was resumed on the 21st May 1996. Further evidence was heard and the accused was not convicted until the 11th June, 1996. The accused was not eligible for bail from the time of his arrest because of the provisions of the Non-bailable offences order. This is yet another instance of the grave injustices to which the legislation gives rise.
The complainant herself gave evidence. Apart from her having said that she had left school sometime ago as she was ill there was no indication or suggestion on the record that she appeared mentally abnormal. Certainly there is nothing to suggest that she was regarded by some as mentally retarded or deficient. She testified that she had known the accused for a long time but there was no relationship existing between her and the accused. By this one is to understand .that she meant no romantic or sexual relationship. She said that on the 12th of November, 1995 the accused person had intercourse with her against her will. Her account of the circumstances of the alleged rape are not convincing and there is a distinct impression that the complainant may have submitted to the wishes of the accused willingly. Certainly there appears to have been no outward manifestation of unwillingness on her part. Thereafter her complaint was not spontaneous and could well have been made if at all as a result of being found in flagrante delicto.
When later in the evidence it appears that the complainant is regarded as a mentally impaired person the reliance to be placed on her evidence on the question of consent becomes questionable.
There is evidence from B. He saw the complainant and the accused sitting together for about 20 minutes, then rising and walking together into the bushes where he later found them, the accused on top of the complainant engaged in sexual intercourse.
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It was only after the complainant and the accused had disappeared into the bushes that he heard A’s Grandmother calling out her name as a result of which he called to her and went after the accused and the complainant to the spot where he found them as described. When he was about 10 to 15 metres away and spotted them, he first threw a stone at them. This caused the accused to turn and look at the witness, who enquired as to what the accused was doing. The accused responded by saying that the complainant was his girlfriend.
The appearance of B on the scene put an end to the intercourse and B took the accused to the complainant’s grandmother and called at the complainant to follow them which she did. It was B who accounted to the complainant’s grandmother what he had seen. This was done apparently in the presence of the accused who responded by saying that the complainant was his girlfriend.
Under cross examination by the accused B in answer to a question by the accused as to whether he did not ask the complainant as to whether or not “she was my girlfriend” when the accused invited him to do so, B replied that he did not ask the complainant that question because she is physically and mentally disabled and there was nothing she would say that would be accurate as she does not know the truth from an untruth. That answer illustrates how dangerous it would be to rely on the evidence of the complainant.
It seems that the complainant may well not have been a competent witness having regard to the provisions of section 214 of the Criminal Law and Procedure Act 67/1938. In all cases but especially where the accused is undefended where there is any question of the competency of a witness, not only the court but also the prosecutor should make proper inquiry. That this was not done in this case is in itself a source of concern.
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In view of the Magistrate’s later finding that she was indeed because of her mental condition to be regarded as an idiot or imbecile. The evidence of the complainant should never have been admitted in the first place.
The complainant’s grandmother C testified after a protracted break in the proceedings. Her evidence confirms what had already been said by B.
She refers to Mr. B as Mr. Kunene.
She confirmed that when the complainant and the accused had been brought to her both were in a state of partial undress. In response to her enquiry to the accused as to what he was doing to the complainant and whether he did not know that the complainant had a mental problem, he the accused insisted that the complainant was his girlfriend. It was the complainant’s grandmother who then enquired of the accused whether a mentally disturbed person is capable of “going out” or having love affairs. The accused maintained that he did not have sex with the complainant without her consent and that she agreed to sleep with him. The grandmother replied to this by asking how she could have agreed and observed that the complainant may have said “yes” but did not understand what she was agreeing to as she is an imbecile. She, like B, expressed the view that the complainant does not know the difference between “no” and “yes”.
From this witness it also emerged that the complainant was 22 years old and reference to her birth certificate which had been produced revealed that she had been born on the 15th August, 1974. When asked to produce evidence of the complainant’s mental condition she had produced certain papers from the psychiatric centre which however did not indicate whether the complainant was or was not mentally impaired. The documents
did not constitute evidence in any acceptable meaning of the word.
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The accused himself gave evidence and maintained as he had all along that there was a relationship between him and the complainant and that he did not know that she was mentally impaired in anyway.
The complainant seems to have been well known to the accused and it is somewhat surprising and perhaps unbelievable that he was not aware of her alleged condition.
There was however no evidence from an expert as to the complainant’s mental condition and there was no evidence that the accused was or must have been aware of the nature or extent of her mental impairment if any.
Despite this the Magistrate has found that the intercourse took place without the consent of the complainant on account of her mental state which prevented her from consenting to such sexual intercourse.
In S vs Quandu & others, 1989 (1) SA 517 (A) it was said that the mere fact that the accused has had sexual intercourse with the complainant without her legal consent (the complainant in that case was not mentally capable of giving such consent ) does not necessary make him guilty of rape. If the complainant had apparently consented to intercourse, and the accused believed that she was legally capable of giving consent, he would lack the required intent.
The Magistrate without referring to any authority has found that the intercourse took place without the consent of the complainant as by reason of her mental condition, she was incapable of giving such consent. This is clearly wrong in the light of the judgment to which I have referred. More particularly so as there was no expert evidence of the complainant’s mental incompetence. Neither the complainant’s grandmother nor B’s opinions are admissible as proof thereof.
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It is strange that the accused was not charged with knowingly having had sex with a woman who because of her mental condition was incapable of consenting thereto. Section 185 (1) of the Criminal Law & Procedure Act 67/1938 provides that any person charged with rape may be found guilty of assault with intent to commit rape or, among other statutory offences, of the offence of having or attempting to have unlawful connection with a female idiot or imbecile under circumstances which do not amount to rape , or an attempt to commit rape. The accused however cannot be found guilty of such an offence for as I have observed there is no medical evidence whatsoever as to the nature or extent of the complainant’s mental impairment. No for that matter is there any evidence to show that the accused was aware of her impaired mental state.
Apart from the extra-ordinarily long duration of the trial which in itself it is denial of justice the presentation of the crown case leaves much to be desired. The crown knowing that the complainant was considered to be an idiot or imbecile should never have presented her as a competent witness. Furthermore with that knowledge the complainant should have been properly examined by a competent psychiatrist whose evidence should have been before the court. The accused’s attention should have been drawn to the fact that he could have been found guilty on an alternative charge under the Section of the Act which I have quoted.
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When this matter came before me on review in view of the serious view I take of the deficiencies in the proceedings I referred the matter to the full court and ensured that argument was presented by counsel representing the crown and also the accused. The court is indebted to counsel for their helpful arguments and the submissions which were made to assist the court in coming to the conclusion. In the event the proceedings cannot be set aside as being in accordance with the substantial justice and the conviction and sentence are set aside.
S.W. SAPIRE B. DUNN
ACTING CHIEF JUSTICE JUDGE OF THE HIGH COURT