Malambe v Rex (NULL) [2003] SZHC 51 (24 April 2003);

THE HIGH COURT OF SWAZILAND

Crim. Appeal 59/99

In the matter between:

SOLOMON PETROS MALAMBE Appellant

AND

REX Respondent

CORAM : MATSEBULA J.

MASUKU J.

For Appellant : Mr M.J. Dlamini

For Respondent : Mr N.M. Maseko

JUDGEMENT

24th April 2003

Masuku J.

This is an appeal that vexed us for the past three years. It has been postponed on numerous occasions and entirely due to the Appellant or his numerous representatives' unpreparedness. We have had, in the process, to read the record over numerous times. We are happy that the matter has finally been disposed of.

The Appellant, to whom I shall continue to refer to as "the accused" was tried and convicted of rape with aggravating circumstances, it having been alleged that on the 27th December, 1997 at Emafini area, Manzini District, he did unlawfully and intentionally have sexual intercourse with Loncwala Malambe without her consent.

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In support of the aggravating circumstances as required by Section 185 bis of the Criminal Procedure and Evidence Act, 67/1938, the following are alleged: -

(i) At the time of the sexual assault the complainant was only 9 years old and was a virgin;

(ii) The accused person is the natural father of the complainant.

Notwithstanding his plea of not guilty, the accused was convicted and sentenced to the minimum sentence prescribed by Section 185 bis (supra). The accused has appealed against both conviction and sentence. He has raised an array of grounds of appeal. For purposes of completeness, the following grounds are contained in the letter of appeal dated 26th January

2000:-

"1. The real issue this appeal is that the honourable magistrate K. Nkambule convicted the appellant on an offence he nicer committed.

2. The Hon. court erred in delivering judgement in the absence of appellant's attorney.

3. The Hon. Court erred infact and inlaw by convicting appellant without aggravating factors.

4. The Hon. court erred infact and inlaw by failing to consider the collaboration evidence by DW 2 and DW3. The Hon. court erred infact and inlaw when dismissing statement by DW2 and DW3 and declare witnesses hostile, you cannot put forward a witness and then ask the court to say he/she is hostile merely because he/she does not agree with you the correct procedure is well stated by the learned Authors Hoffman and Zeffeat on page 340 of the 3rd edition of their book titled "The South African Law of Evidence" the gist here is that you must first prove the existence of an inconsistent statement from which the court may infer that the witness is hostile and permit you to cross examine him on the statement you cannot out of the blue ask the court to declare your witness hostile, you must first lay foundation for the application, the writers are on the point when they argue on page 351 that "not all the witnesses who give unfavourable evidence are hostile, they go on to argue that, nor is the fact that he has made previous inconsistent statement necessarily conclusive."

5. The honourable Court erred infact and inlaw by convicting appellant whereas the Doctor's Report did not collaborate with the commission of crime and over looked the

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fact that the possibility that Mfan'fikile appellant's son made sexual intercourse with the complainant as kids at their age may play that way.

6. The honourable Court overlooked the contradicting statement by complainant and the crown witnesses.

7. The honourable Court erred infact and in law by failing to consider the

Doctor's report which says the hymen was removed may be a week earlier and definitely without exaggeration had appellant raped complainant serious harm should have been noticed by the Doctor.

8. The question of remorse by appellant could not be relied on and it was not

from the appellant, also the fact that he was working for Swaziland Umbutfo Defence whom appellant did not know and without his instructions.

(a) The correct statement is that appellant has served 21 years with the Defence Force.

(b) Appellant is framed by his wife who is jealous of the fact that appellant is in love with another woman.

(c) Appellant had a steady job and mentally responsible

(d) The Honourable court erred infact and in law by being emotional and quarrelling with appellant's attorneys throughout the proceedings thus finding appellant guilty as charged and the fact that appellant is not literate added advantage for the crown.

9. Appellant would be pleased if the honourable court can weigh both sides of evidence and honestly for fair justice.

10. It has come a normal practice that to destroy a person/man for revenge by women is to lay charges of rape, since it is an alarming case.

11. Appellant loves his family and wish them a bright future. The crown also failed to call upon independent witnesses to confirm the alibi and to prove the case beyond reasonable doubt as required by law.

12. SUBMISSIONS

(a) In the event the conviction of appellant is somehow justified, appellant request the honourable court to consider the repercussions of the falsely charge.

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(b) Further note that appellant is a responsible man and therefore his charge has a benefit of doubt, more so appellant statement is reasonable true and collaborated with that of DW2 and DW3.

(c) The honourable court erred infact and in law by relying on the contradiction of whether or not appellant was introduced by DW 3 to DW 2 since that could not be noticed because nobody knew, one day they would be questioned.

(d) The overall effect in this appeal is that conviction and sentence is challenged.

(e) The honourable magistrate erred in passing harsh sentence which cause a sense of shock, more so for an offence appellant did not commit.

13. Appellant hereby humbly prays for acquittal and discharge, or wholly suspended

sentence." Background

The accused, at the time of his arrest was a serviceman in the Umbutfo Swaziland Defence Force. According to the complainant PW 1, on the 27th December 1997, the accused came home inebriated that night. He was dress in the traditional garb. He ordered PW l's brother, Mfanufikile PW 5, who was sleeping in the same bedroom with PW 1 to leave the room the three normally shared. The accused went into bed removed PW 1 's clothes and had sexual intercourse with her. This was a painful experience according to PW 1. As a result, she was crying and he threatened to kill her. In the morning, the accused again had sexual intercourse with PW 1.

After he was through, PW 1 went to report her experience to her aunt Khanyisile Malambe (PW 3), who in turn went to report to PW l's elder brother Sikelela. They waited until Sunday when PW 1 's mother returned and the matter was then reported to the Police. PW 1 was taken to a doctor who treated her and gave her some tablets. It was PW l's further evidence that PW 3, during the morning of the ordeal entered the room and found PW 1 in bed with her father.

In cross-examination, it was established that the accused had returned at around midnight. It was her evidence that she did not usually sleep in the same bed with her father. It was suggested to her that the person who abused her was not the accused but this she denied. It

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was put to her that on the material day, the accused was at Lomahasha and could not have sexually abused her. PW 1 maintained her story.

PW 2 was Dr Chibangu Mangala of the Raleigh Filkin Memorial Hospital. He testified that on the 28th December 1997, he examined PW 1 and completed a pro forma RSP 88. His findings, as confirmed in the report were, that there were no extra-genital injuries but that the vestibule had some bruises and the hymen was not intact. There were some remnants of it. It was the Doctor's further observation that there was no bleeding and that the examination was painful. He also detected the discharge a yellowish offensive smell. No spermatozoa was seen. He opined that there was evidence of child abuse (sexual assault).

In cross-examination, the Doctor testified that he could ascertain when the hymen was torn and opined that in the instant case, it was torn more than a week earlier. When asked about the bruises, he opined that they were fresh and had been sustained within the previous forty-eight (48) hours.

PW 3 Khanyisile testified that on the 26th December 1997, she left home where she stayed with the accused and PW 1 and spent the night at Mangozeni. In the morning, after her return, she went into the room where the accused and PW 1 slept. The former was sleeping on the bed and the latter on the floor. She left the room and when she re-entered it, she found PW 1 and the accused sleeping in one bed. PW 1 later related her ordeal to PW 3 i.e. that he had had sexual intercourse with her and further order her not to cry.

PW 3 testified that she inspected PW l's organs of generation and stated that she saw something akin to a sperm, blood and some cuts and from which the blood emanated. PW 1 told Sikelela PW 5. PW 3 stated that she was afraid to report the matter to the Police as the accused could return and assault them.

It was only on the 28th that PW 1 was taken to see PW 2 and this was on her mother's return. She confirmed that the accused was wearing traditional attire then.

In cross-examination, the alibi stated earlier was put to PW 3 but she, like PW 1 denied. PW 5 also confirmed PW 1 and PW 3's stories. She confirmed that the accused came at around

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midnight wearing his traditional garb and ordered him to leave the room and to sleep at his uncle's place.

PW 5 was cross-examined at length about one Joyce Linda said to be accused's other wife and that he (PW 5) had on several occasions visited Linda to ask for money. All these were denied by PW 5.

It was further put to him that on the 25th his young sister Sindi was at Lomahasha with Linda. This he denied. He also denied the suggestion that he and his siblings were complaining that the accused took his money to Lomahasha.

PW 6 was Sarah Maseko the accused's wife. She confirmed the evidence of PW 1 and PW 3. She denied that the accused had another wife (Linda) and further denied having received any complaints from her children regarding the accused giving any money to Linda. It was also her evidence that the accused was at home on the 25th December, 1997, a day during which she was also at home, leaving the homestead later that day.

In cross-examination, she denied that Sindi was at Lomahasha on the 25th. She denied complaining about the accused giving money to Linda. It was put to her further that she was aggrieved regarding the accused's affair with Linda such that she concocted the story about the rape such that there would be no winner between herself and Linda. It was also put to her that she decided to return home on the 28th to see that her plan was carried out. She denied all the above.

The accused was called to his defence. He testified that his relationship with his wife had fermented to intolerable levels such that they were sleeping on different beds. He denied having sexual intercourse with PW 1. It was his evidence that on the 26th and 27th, he was at Lomahasha with his girlfriend Linda (my underlining). He further denied forcing PW 5 out of the house and denied that PW 3 found her sleeping with PW 1 in the same bed. It was his evidence that his family was not happy about his relationship with Linda hence the lies. He stated that his daughter Sindi was at Lomahasha on the 26th.

In argument, Mr Dlamini raised the following points.

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1. Penetration not proved by the Crown.

2. Application of the Cautionary Rule

3. The version of the accused as supported by his witnesses was probable

4. The Magistrate had no power to mete out the sentence that he did

I propose to address these issues, the only ones raised in argument ad seriatim. 1. Penetration

Mr Dlamini conceded that there was some corroboration regarding the elements of the crime of rape but there was no evidence corroborating PW l's testimony regarding penetration. In this regard, the defence argued that the Doctor's report did not confirm that sexual intercourse had occurred. Instead the Doctor opined that there was a case of child abuse

(sexual assault).

Mr Dlamini further argued that if indeed as testified by PW 1 that the accused ejaculated, then some sperm cells ought to have been observed, taking into account that PW 1 testified that she did not wash for three days after the incident. It was further argued that in the light of the pain experienced by PW 1 during the examination and that only the index finger was used during the examination, the only reasonable inference is that no penetration occurred and therefor the Crown failed to prove the offence beyond a reasonable doubt.

Needless to say, Mr Maseko argued to the contrary, submitting that the evidence of the Doctor supports PW l's case and is corroborative thereof.

The learned author Hunt, "South African Criminal Law and Procedure", Volume II, 2nd Ed,

Juta, 1982, states the following at page 440: -

"There must be penetration, but it suffices if the male organ is in the slightest degree within the female's body. It is not necessary in the case of a virgin that the hymen should be ruptured and in any case, it is unnecessary that semen should be emitted."

In this case, PW l's evidence that penetration did occur in my view finds corroboration from the Doctor's report that the hymen was ruptured and that there were remnants of it.

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According to the authority above, it suffices that the male organ is inserted even if the hymen may remain intact. I would not lend much weight to the Doctor's evidence that the hymen was ruptured about a week earlier. Doctors have time and again stated that all they can do in such cases is to estimate and in any event, people's healing processes differ. Some may take longer to heal than others. One should also not discard the evidence of PW 3 which is also consistent with PW l's evidence, particularly regarding the extra genital injuries which the Doctor also observed, although he said they were more recent than PW 1 's evidence.

Mr Maseko referred us to the case of S VS MHLANGA 1987 ZLR Part I, p.70, at 72

where the following excerpt by Dumbutshena C.J. appears: -

"For purposes of establishing the offence of rape it suffices for the penetration to be slight."

In this case penetration in the legal sense is established. Another factor proving penetration is the fact that PW 1 got an infection as testified by PW 2. See S VS MHLANGA (supra) at page 73. It should also be noted that PW 3 testified that she inspected PW 1 and saw signs consistent with recent sexual activity. In particular, she saw some blood on PW 1 's organs of generation, a factor fully consistent with the rupturing of the hymen. Mr Dlamini noted that the Doctor said he did not see any traces of blood and that is in my view understandable because although PW 1 said she did not wash, she only saw the Doctor three (3) days later. It is quite conceivable that in the intervening period, traces of blood would have disappeared.

I am of the view, in the light of the foregoing that the Crown was able to prove penetration beyond a reasonable doubt. For that reason, this ground of appeal stands to be dismissed.

(2) Application of the cautionary Rule.

Mr Dlamini in this regard argued that the cautionary rule must in casu apply in two respects. Firstly, PW 1 was a child below the age of 10 and the Magistrate did not caution himself in this regard. Secondly, this matter involved a sexual offence and in which the Courts have held that it is dangerous to rely upon the uncorroborated evidence of a complainant unless there is some other factor reducing the risk of a wrong conviction.

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I intend dealing with the first aspect.

(i) Evidence of Young Children

The learned authors Hoffman and Zeffert, in their work entitled, "The South African Law on Evidence," 4th Edition, Butterworths, 1988, state the following regarding this subject at page 581: -

"Young children are competent witnesses if the judge considers that they are old enough to know what it means to tell the truth, but it has frequently been emphasised that their evidence should be scrutinised with great care. The danger is not only that children are highly imaginative but also that their story may be the product of suggestion by others... The danger of convicting upon such evidence must be borne in mind by the trier of fact. It makes no difference whether the child's evidence has been sworn or unsworn. The court is entitled to take into account the falsity or absence of evidence by the accused or any other features which show that the child's evidence is unquestionably true and the defence story false, but it should not ordinarily convict unless the evidence of the child has been treated with due caution. "

In casu, PW 1 gave sworn testimony. The learned Senior Magistrate did not make any specific finding or assessment of the child as a witness, particularly dealing with the caution. It is clear however that he was impressed with PW 1 's evidence. At page 60 of the record, he stated the following: -

"Though there are minor inconsistencies in the testimonies of the Crown witnesses, such minor inconsistencies were bound to happen taking into regard the kind of evidence and the time frame that has elapsed. However, I have no hesitation in accepting the complainant's evidence and other Crown witnesses in preference to that of the accused. "

Earlier on, at page 59 of the record, the learned Senior Magistrate concluded as follows: -

"The totality of the evidence before Court clearly proves that the child was sexually molested on the day in question. The question which remains to be

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answered is, who did this? The child states that it was her father, the accused. "

From the foregoing, it is clear that the presiding Officer was impressed with PW 1 as a witness; although there is no indication on the record that he admonished himself accordingly. The learned authors Gardiner and Lansdown, "South African Criminal Law, 5th Edition Volume 1 at page 461 state the following: -

"In general there must be some credible evidence in addition to the child's which, in necessary degree, is consistent with the child's story and inconsistent with the innocence of the accused though it need not necessarily implicate the accused. "

In REX VS S 1948 (4) SA 419 (G. W. L. D.) at page 422, Bok J., reasoned as follows about the corroboration of a child's evidence: -

"What that necessary degree is must depend upon the circumstances of each case. For instance when the complainant is a child of six it might well be necessary to insist on evidence aliunde implicating the accused. "

In casu, there was such evidence. The evidence of PW 2, the Doctor and PW 3 in my view corroborate the evidence of PW 1 in material respects and which I have addressed above. Furthermore the evidence of PW 5, Mfanufikile, would appear to have been a preparatory stage for the assault on PW 1. In view of the foregoing, I am of the view that notwithstanding the absence of a direct admonition by the learned Magistrate visible on the record, the circumstances of this case are such that the risk of convicting wrongly on the sole evidence of PW 1 was dramatically reduced. The conviction should in my view stand on this ground.

(ii) Caution in sexual cases

Mr Dlamini argued that in casu there should have been a "double caution", firstly because of the age and secondly this being a sexual case. I am of the view that in casu, the statements I made relating to (i) above equally apply. The risk of convicting wrongly was, as I have said, eliminated because there was sufficient corroboration of PW 1 's evidence.

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I must however note, as did the learned Magistrate that there were inconsistencies in the Crown's evidence. I support the manner in which he dealt with them and I confirm that in the material respects, the evidence showing that the accused did on the day in question have penetrative sexual intercourse with PW 1 is overwhelming. I wish to cite with approval the comments of H.C. Nicholas, "Credibility of Witnesses", Vol.102 Part 1 SALJ page 32 at 35 -36, where the following appears: -

"It is the case that where two or more witnesses give consistent evidence that may be a strong and indeed a decisive indication that their story is a credible one... But the converse is not true. It is not the case that lack of consistency between witnesses affords any basis for an adverse finding on their credibility. Where contradictory statements are made by different witnesses, obviously at least one of them is erroneous, but one cannot, merely from the fact of the contradiction, say which one. It follows that an argument based only on a list of contradictions between witnesses leads nowhere so far as veracity is concerned. "

This ground of appeal will likewise not be sustained.

(3) Probability of the version of the accused.

Mr Dlamini submitted that the version given by the accused as supported by his witnesses is probable. He submitted further that the explanation proffered by the accused as to why his family concocted the story against him is probable and that suffices to create a reasonable doubt which should enure to his benefit.

In R VS DIFFORD 1937 AD 370 at 372, Watermeyer A. J. A. propounded the timeless operative criterion in criminal cases in the following rendering: -

"It is equally clear that no onus rests on the accused to convince the Court of the truth of any explanation he gives. If he gives an explanation, even if that explanation be improbable, the Court is not entitled to convict unless it is satisfied, not only that the explanation is improbable, but that beyond any reasonable doubt it is false. If there is any reasonable possibility of his explanation being true, then he is entitled to his acquittal. "

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Turning to the accused's explanation, two issues arise. The first is an alibi. The accused claims that on the day in question he was at Lomahasha and could not therefor have committed the offence in question. In dismissing the alibi the learned Senior Magistrate relied on R VS BHIYA 1952 (4) SA 514 and found that it was false. Reasons for that conclusion were not advanced.

That notwithstanding it is clear that the accused's alibi was false. All the Crown witnesses, PW 1, PW 3, PW 5, PW 8 and Sindi, a young girl, called by the Court in terms of Section 199 of the Act testified that the accused was at home in Malkerns. I note that the latter witness emphatically denied having been to Lomahasha and meeting Joyce Linda at all. Linda proved to have been a lying witness and failed to answer straightforward questions. Her evidence contradicted what was put to the Crown's witnesses e.g. when Sindi came to Lomahasha. Linda said Sindi came a week earlier whereas it was put to the accused's wife that the accused brought Sindi to Linda on the 29th December 1997.

There is in my view no reason for the accused's family to have concocted the story against him, particularly his own sister and children. It is also significant that when the offence allegedly occurred, the accused's wife was not at home as she could arguably be the most aggrieved and have the reason to concoct the story in order to get even with the accused. Even then, how could she manufacture the signs redolent of sexual activity which were observed by PW 1, PW 2 and PW 3. It is also worth stating that the accused never put to PW 1 that she could have had sexual intercourse with any other person. This he only raised in the appeal. It was never put to her and no weight ought to be given to it therefor.

The story about how sour the relationship between the accused and his wife had become was never put to her. The accused mentioned this for the very first time in his evidence in chief. Had this been put, it could have formed a reasonable basis for concluding that accused's wife had reason to concoct the story. As it was not put, it must be declared an afterthought (R VS DOMINIC MNGOMEZULU & OTHERS CRIM. CASE NO.94/90) (unreported per Hannah CJ.). There were also matters put to the Crown's witnesses which were at variance with the accused's evidence e.g. Linda was said to be the accused's second wife to the Crown's witnesses. The accused in his evidence described her as a girlfriend.

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The accused's wife denied any knowledge of Linda and it was never suggested to her where and when she got to know of Linda or when and under what circumstances the accused told his wife about her. In the circumstances, the only inference to draw is that the accused's family had no reason to and did not concoct the story against the accused. To the contrary, it is clear on the evidence that the accused and his children were in good terms even on the day of the incident. This points to the only conclusion that the accused is the one who raped PW 1 his daughter. The alibi was clearly false and the learned Magistrate correctly returned the verdict that he did. In my view, the appeal against conviction is liable to dismissal.

4. Sentence.

The accused contends that the sentence imposed upon him by the Senior Magistrate is in excess of his jurisdiction. It is trite that the jurisdiction of a Senior Magistrate is seven (7) years. The provisions of Section 186 bis do not cloak the Senior Magistrate with the jurisdiction to impose the minimum sentence of nine (9) years prescribed therein. See KINI SIYABONGA DLAMINI AND ANOTHER VS REX CRIM. APPEAL CASE NO.40/02 (per Zietsman J.A.) and SIZA GANGADVU TFWALA VS REX CRIM. APPEAL NO.41/99.

For that reason, it is my view that the sentence imposed by the Magistrate must be disturbed as there was a misdirection by him on the law. The sentence is altered to one of seven years imprisonment without the option of a fine. It is backdated to 7th January 1998 as the Magistrate had done.

In closing, you must be ashamed of yourself for what you did to your own daughter. You must be the one to protect her from sexual perverts and other dangers of life but you have chosen to be an assailant - a shepherd who turns himself to a wolf. I hope that you find it in your heart to go to your daughter, wife and children and apologise for your actions, perchance the wounds you caused may heal as your family may, on your genuine signs of penitence forgive you. I hope that you have learnt your lesson and will henceforth become a responsible and protective father to your all children.

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Should you with to appeal against this judgement to the Court of Appeal, you are require to apply to this Court for a certificate of leave to appeal to the Court of Appeal within fourteen (14) days from the date hereof.

In sum, the appeal against conviction be and is hereby dismissed. The appeal against sentence is successful to the extent that your sentence shall be altered to one of seven (7) years imprisonment.

T.S. MASUKU

JUDGE

I agree

and it is so ordered.

J.M. MATSEBULA

JUDGE