HIGH COURT OF SWAZILAND
Case No. 05/03
the matter between:
Appellant : In Person
Respondent : Mr Phumlani Dlamini
Appellant appeared before the Senior Magistrate, Lubombo District,
charged with three Counts as follows; - one count of rape, one of
contravening Section 3(1) of The Theft of Motor Vehicles Act 16/1991
and one of house breaking with intent to steal and theft. The
Appellant pleaded not guilty to all three counts. The Crown offered
no evidence on the second count and he was therefor acquitted and
discharged at the close of the Crown's case.
was however convicted on the balance of the counts to seven (7) years
and two years imprisonment for the rape and house breaking and theft,
respectively. Both sentences were ordered to run concurrently and
were further backdated to the date of his arrest.
serving before Court is an appeal by the Appellant levelled against
conviction on the Count of rape. It is worth pointing out that there
was an inordinate delay in lodging this appeal, spanning over some
eighteen months. This delay we however condoned although no fully
satisfactory reasons were furnished. We must however state that we
did not, by so doing create a precedent. Convicts from the
Subordinate Courts must ensure that their notices of appeal are
timeously filed and if not, applications for condonation must be
filed and in which the reasons for the delay must be specifically
addfessed together with the question of prospects of success on
appeal. This must serve as a warning to others that appeals filed out
of time and in the absence of applications for condonation will not
be entertained in the future.
Appellant's grounds of appeal are contained in his letter dated 30th
September 2002 and are as follows: -
court a quo erred infact and in law when convicting the appellant for
the rape without any convincing evidence given before the court.
court a quo erred infact and in law not considering the evidence
given by the doctor's report that clears the court that the
complainant had fell into sexual intercourse that day and nothing was
found to show infection.
health during his trial was not good and he also have the proofs of
parents were not being considered as a result the police arrived with
the complainant and asked the appellant if he know the complainant.
fingerprints were not taken from him.
identification parade have not been done in time as law says 48 hours
should be taken instead there took two weeks after remanded three
failed to identify the appellant when she was infront of the court
and said the one who raped her was having red eyes.
Cinga Mngomezulu when lay evidence he says the accused person look
alike but not sure."
order to place the matter in its proper perspective, it is imperative
to briefly recount the pertinent facts of this matter. It will be
recalled that the Appellant was convicted for wrongfully, unlawfully
and intentionally having carnal connection with Nomfundo Mondlane,
then a fifteen (15) year old juvenile of Lugongolweni without her
consent. The said offence was alleged to have occurred on the 18th
1999 at Lugongolweni area in the District of Lubombo.
to the complainant on this Count, at around 14h30 on said date, she
was in the company of Chinga Mngometulu, who was proposing love to
her. He was accompanying her on her way home from school. Along the
way, they found the Appellant standing next to a gate of a certain
appellant called the two-some and they obliged. He asked a few
questions from them and later asked PW 1 if her parents knew that
they were walking together and this they answered in the negative.
Appellant called PW 1 to come to him so that he could beat her but
she refused. He eventually reprimanded them and they left. Chinga
walked with her and decided to turn back next to a Bhembe homestead.
Before PW 1 could reach the home of Mvila Dlamini, the accused
emerged from behind her and informed her that her companion, Chinga
had insulted him. He asked for Chinga's place of residence but PW 1
would not tell him. He ordered her to follow him and her signs
reluctance were followed up by harsh words and threats to chastise
her. She then followed him.
the way, the appellant moved away from the beaten track and moved to
a bush and ordered her to follow. When PW 1 started crying, he cut a
stick and threatened to beat her with it. He told her to sit down and
to remove her underwear. She refused to do the latter. He asked her
if she had had sexual intercourse before and she answered in the
negative. He then beat her, forcing her to remove her underwear,
which she then did. The Appellant unzipped his trousers, pressed her
to the ground, forced open her thighs and had sexual intercourse with
her. It was her evidence that he penetrated her and as a result, she
a lot of pain. When she screamed as a result thereof, he slapped her
on the face. He continued with his escapade for about thirty (30)
satiated his appetite for the time being, the Appellant sat next to
PW 1. He asked if she was going to report her ordeal to her parents
but she answered in the negative, hoping that her favourable answer
would secure her release. No sooner had that been said that the
Appellant started caressing her and he again had sexual intercourse
with her. PW 1 testified that when she cried as a result of pain, he
showed her the stick which he would use to assault her. This bout of
sexual intercourse took longer than the first.
this bout, the Appellant again enquired if PW 1 would report her
experience to her parents and she again answered in the negative. The
Appellant then implored PW 1 not to tell her parents about the ordeal
and she made the necessary undertaking. He then told her to get
started on the way back home. Along the way, he took another
direction, leaving her on her own. PW 1 went to a Msimango homestead
and this is where she reported her ordeal to Mr and Mrs Msimango. The
time was after 19h00. The RSP were eventually called and they took PW
1 to Siteki Police Station for recording a statement. Her parents
were also informed of her whereabouts.
1 testified that she described her assailant to the Msimangos and the
RSP i.e. he had red eyes of average size, a mild complexion, average
height and physique, a beard and a square shaped face with red middle
sized lips. She described the clothes he was wearing. She was later
taken to Dr Phillips who examined her and later discharged her.
the 16th November 1999, she was taken to Matsapha Police Station with
Chinga and where she identified the Appellant as her assailant in a
parade. They were, before the identification put in an office and
Chinga was called first. He did not return to that office. Later she
was fetched and handed over to another officer and, had her details
recorded. She identified the Appellant among eight men and he was
cross-examination, the accused denied that he had red eyes. He denied
having raped PW 1 but she insisted that he did. She further told the
Court that she was never taken to the scene where the rape occurred
which the accused attributed to the fact that she had lied and this
is why the RSP refused to go to the scene. This PW 1 denied. It was
put to her, which
denied that she falsely accused him of raping her in order to cover
up her coming home late because of her affair with Chinga. PW 1 also
denied when put to her that RSP told her whom to pick as her
assailant during the identification parade.
5 Chinga Mngomezulu also testified and his testimony by and large
corroborated PW l's regarding them meeting the Appellant and the
identification parade. It is not necessary to delve into that
evidence. Under cross-examination he denied having been told to point
at the accused during the identification parade. He also confirmed
having seen the accused for the first time on the day alleged by PW
10 was Dr Aby Phillip who testified that he examined PW 1 and found
that she had a slight injury on her vagina and that a laboratory
examination revealed the presence of spermatozoa. He opined that she
had sexual intercourse as the hymen was not intact according to his
shall now deal with the accused's grounds of appeal as they appear on
his aforestated letter.
a quo erred in convicting in the absence of convincing evidence.
is clearly no merit in this ground of appeal. A reading of the record
reveals that the Magistrate returned the verdict after an anxious and
circumspect analysis of the evidence before him. This evidence was
cogent, credible, reliable and corroborative in material respects. He
was correctly satisfied on the evidence of the Appellant's
identification as the Appellant was seen and came into very close
communication with PW 1 and PW 5. This was in broad daylight and
where his facial features were not concealed. They therefor had both
the time and the opportunity to see and recognise him.
proceeded to identify him two weeks later after his arrest. Claims
that there was any impropriety regarding the process and conduct of
the parade are insupportable. The parade was carried out in
circumstances which were fair to the Appellant and 1 therefor find
that the evidence of identification, was correctly admitted by the
Court a quo. This is supported by the evidence of the officer who
conducted the parade, his report and of course the evidence of PW 1
and PW 5 on this aspect.
learned Magistrate, in this regard, carefully analysed the law
applicable and found that nothing including the period between the
arrest of the accused and the date of the identification could mar
the entire process. I am in respectful agreement with the learned
Magistrate's analysis, conclusions and reasons in this regard.
is also clear that the cautionary rule in sexual offences was in the
forefront of his mind in dealing with this case. From PW l's evidence
it was clear that she had not consented to the intercourse neither
could she as she is due to her age incapable of consenting at law.
Her evidence of sexual penetrative intercourse was corroborated by
the Doctor. Faced with the above facts and realities, the Learned
Magistrate could have come to no other conclusion than that which he
did. This ground is therefor liable to fail.
issue has been addressed above. No semblance of substance can be
found in this regard. The question of infections was never raised
with any of the Crown's witnesses and never featured at all in the
case. This ground of appeal must also fail.
the appellant was sickly during his trial. This is borne out by the
record. Equally true is that the learned Senior Magistrate was
equally sensitive to the Appellant's condition then and did all that
a judicial officer would be expected to. He exhibited signs of
patience and understanding and even wrote letters to the appropriate
authorities requesting that the Appellant's plight be attended to.
state of the Appellant's health cannot therefor found a basis for
setting aside the conviction. The Appellant was at first represented
and later represented himself. He was present throughout the
proceedings, advised of all his rights and he also cross-examined the
witnesses at length. On days when his health failed him, the matter
was postponed to enable him to recover in order to continue with the
trial. There is absolutely no merit in this ground of appeal. It will
of Appellant's parents.
was not persisted in and is devoid of any substance. The appellant's
parents did not feature at all.
worthy of rejection is the fact that the accused refused for the RSP
to take his fingerprints until his conviction. The failure to take
these or properly put, the Appellant's refusal to have these taken
cannot form a good or sufficient basis for altering the verdict. The
verdict returned was not premised on the Appellant's fingerprints but
on proper evidence adduced before Court. Whether his fingerprints
were or were not taken at the time of his arrest never entered the
equation. This ground of appeal is dismissed for lack of substance.
and 7. 8.
will deal with these grounds at once as they are inter-related. As
indicated earlier, the learned Magistrate correctly found that the
identification parade must stand. No authority to my knowledge exists
and which mandatorily requires that the parade be conducted within
forty-eight hours. It would be unreasonable to create any such
straitjacket for it could impede if not deflect the course of justice
in certain circumstances. Two weeks in casu is a reasonable time as
the learned Magistrate found. The identification could however have
been held earlier but for the absence of the relevant officer. The
delay in holding it when it was, did not in my view prejudice the
allege that PW 1 and PW 5 failed to identify the Appellant in Court
finds no support from the record. It is in fact not permissible for
Courts to rely on dock identification as advocated, by the Appellant.
In casu, both PW 1 and PW 5 described the assailant by mentioning his
features and proceeded to identify him during the parade. They had
the time and opportunity to properly observe his features when they
met him. PW 1 even had a very close and intimate contact with the
Appellant. To then say they failed to identify him in Court or to
allege that the Appellant did not have "red eyes" is in
view of the evidence and circumstances of the case nothing less than
disingenuous. This will not be countenanced by this Court. The above
grounds of Appeal must therefor fail in my view.
will be apparent from the letter of appeal that the Appellant did not
challenge the sentence. That not withstanding, we exercised our
discretion and allowed him to advance any reasons sufficient to lead
us to interfere with the sentence imposed. The Crown registered their
agreement to this course.
is trite that the issue of the sentence or the appropriateness of it
vests with the trial Court and that very rarely and only in
circumscribed situations can an Appeal Court interfere with the
exercise of that discretion. The circumstances when this can be done
were stated with absolute clarity by Mahomed C.J. (as he then was) in
S VS SHIKUNGA 2000 (1) SA 616 (Nm SC) at 632, in the following
is trite law that the issue of sentencing is one which vests
discretion in the trial Court. An Appeal Court will only interfere
with the exercise of this discretion where it is felt that the
sentence imposed is not a reasonable one or where the discretion has
not been judiciously exercised. The circumstances in which a Court of
appeal will interfere with the sentence imposed by the trial Court
are where the trial Court has misdirected itself on the facts or the
law (S VS RABIE
(4) SA 855 (A); is such that a patent disparity exists between the
sentence that was imposed and the sentence that the Court of Appeal
would have imposed (S VS ABT
(3) etc: or where there is an under-emphasis of the accused's
Appellant, notwithstanding the above position having been explained
to him, failed to point to any factors that would serve to bring his
case within the exceptions recorded above. His only plea was to
implore this Court to be merciful to him, a factor which does not
appear in the list above. There is in our view no reason or
justification for disturbing the learned Magistrate's sentence. He
correctly attuned all the three competing interests and brought them
to an equilibrium. Our hands are in the circumstances tied and we
cannot therefor tamper with the sentence.
like you, who go about flaunting their masculinity in order to coerce
helpless, defenceless and vulnerable women to sexual intercourse must
understand that this is a very serious matter. Many women who have
been accosted, abused and violated in this manner are crying for
protection. Many of them have been relegated to the doldrums of
self-pity, wounded self-esteem and psychological imbalances. Indeed
some have decided to take their own lives fearing to face the world
and themselves after such demeaning and degrading encounters.
in your position, who do not use their mouths to persuade but their
physical strength to coerce deserve to be put away from circulation
for a long time. It is high time that a sex-offender's list is
published in this country so that all, including potential female
"customers" would know about your reprobate self and steer
clear from you like a plague. Learn from your past and do not run
away from it.
the result, I would propose that the appeal against both conviction
and sentence be and are hereby dismissed. Rights to appeal explained.