THE HIGH COURT OF SWAZILAND
the matter between:
ORDER NO.26/79 DISTRICT OF HHOHHO
ON 7TH DECEMBER 1979. REVIEW CASE NO.151/79
Accused in this case was convicted of rape and was sentenced to
imprisonment for two years.
Accused is an elderly man- the Magistrate says sovt
about the age of 65; and the Magistrate found the complainant to
be 14 or 15 years old. He found that she is certainly less than 16.
The medical evidence wavered somewhat; in his original medical report
the doctor put her apparent age at 16. He later said she was around
15 years - old, and less than 16, However in the view I take of a
charge of rape I do not find it very material whether she was 15 or
16. I have referred to her age in same detail because the Prosecutor
appears to have been under the impression that a girl of that age
cannot consent to sexual intercourse; and this may have influenced
the Magistrate. This is not the law. It is only in regard to girls
under 12 that the law deems them incapable of consenting to sexual
intercourse, and intercourse in such circumstances is regarded as
rape even if the complainant purports to consent. See Hunt, S.A.
Criminal Law, Vol.2 page 406-7. I am, of course, referring to charges
of rape, and not to charges of unlawful intercourse with a girl under
the age of 16 under Section 3(1) of Act 39/1920. It would appear that
the Prosecutor did not appreciate the distinction
complainant said she knew the Accused "by sight" because
they are neighbours. According to her, on the day in question as she
walked past the Accused's house he gestured
her by hand to come to him,, She did so as she had been advised at
home that if she was called by an elderly person she should go to him
as he could send her to the shop. She says the Accused then left her
in the house and locked her inside saying he was going to the toilet.
When he came back he completely undressed himself and then grabbed
her and made her sleep on her back. They then had intercourse. "Ho
then thereafter gave me medicine saying it would give me luck. He
said I should wash with it. He then gave me money, the sum of E0.45.
He said I should buy cakes with it. My mother came and Accused pushed
me out of the house. My mother was from Nkanini going home, she was
just passing and Accused pushed me out, Accused saw my mother
outside. I told my mother at home
I told her she had not asked me anything.
gave the money and the muti to my mother ------- I did not consent to
Accused having sexual intercourse with me ------ I did. not cry when
Accused had sexual intercourse with me. I as afraid that he might hit
me if I cried,, "
cross-examination by the Accused., who was undefended, reads as
you not fall in love with me?
have never been in love with you.
you not come to my house daily and we had sexual intercourse
is not true.
day I did not call you, you came on your own?
is not true, you had. always waved at us to come to you when we are
examination by the Court the complainant said "Before that day I
had never had sexual intercourse with any man, but young boys of my
age have had. sexual intercourse with me."
medical report disclosed that there was an old rupturure of the
complainant's hymen, and examination was easy.
mother gave evidence that she was walking past the Accused's house
and then saw the Accused pushing out Lindiwe (the complainant),,
Lindive came out and ran away. She then
the Accused what her child was doing in his house. The Accused said
she was looking for firewood. "At home I found Lindiwe with
money and muti. When I asked her about these she said they had been
given to her by Accused."
Accused gave evidence in which he said "we were lovers with this
girl. She is my girlfriend". He was then cross-examined in
regard to his age and as to whether he knew that a girl of the
complainant's age could not consent (see above), and he said she
agreed to have intercourse with him. When asked whether she was not
young enough to be his granddaughter, he said they were just
Magistrate in his reasons for judgment says that the complainant's
evidence was unassilable,. He went on to say that she impressed the
Court in her evidence, gave the evidence coherently and was firm in
her denial that she was ever in love with the Accused.:. He said that
it was highly improbable that he should be in love with her, and that
this was a made-up story. In regard to the alleged complainant to the
complainant's mother he said that he came to the conclusion that the
complainant voluntarily told her mother what the Accused did to her.
He also said that she had told her mother hat the Accused had done to
her without any suggestion having been made to her.
one naturally has considerable regard for a trial Magistrate's
impressions of a witness - see in this connection R. V. Dhlumay,
1948(2) S.A. 677 (A.D.) at p. 705) - I do not share the Magistrate's
view that the evidence of the complainant was "unassailable"
„ Her evidence that she did not cry out because she was afraid the
Accused might hit her does not strike me as convincing. It is not
suggested that he mad any threat to hit her; and this is no more than
she would be expected to say if she was fabricating her story. But
further than this, why did the complainant not immediately complain
to her mother when she was pushed out of the house? She only told her
at home. In regard to what happened at home there is a clear conflict
between her evidence and that of her mother. She said that when she
told her mother the latter had not asked her anything. The mother
said, "I asked her about these things ----" The Magistrate
in my opinion, was not justified
finding that the complainant voluntarily told her mother what the
Accused did to her.
for the Accused voluntarily to give the complainant muti to wash
herself with and money for cakes is not :hat one would expect of a
may be - I put it no higher than that - that the Accused was
overstating his case in suggesting and saying that he and the
complainant were old lovers. But the evidence is still wholly
consistent with this having "been an intercourse by
consent. I have no doubt that the Magistrate should have given the
Accused the benefit of the doubt in this case, and that the
conviction for rape cannot stand.
have considered whether the Accused should have been convicted under
Section 3(1) of Act 39/1920, referred to above. This, in terms of
Section 135(1) of Act 67/1938, would be competent "if such be
the facts proved," But I do not consider that the evidence
establishes an offence under Section 3(1) of Act 39/1920. The
regard to the complainant's age to which I have referred is increased
by the evidence of her mother who first stated that the complainant
is 16 years of age and then went on to say that she was born during
Dumisa's strike, would. put her at 22-23.
conviction and sentence are set aside.