HIGH COURT OF SWAZILAND
the matter between:
PETROS MALAMBE Appellant
Appellant : Mr M.J. Dlamini
Respondent : Mr N.M. Maseko
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.
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.
support of the aggravating circumstances as required by Section 185
bis of the Criminal Procedure and Evidence Act, 67/1938, the
following are alleged: -
the time of the sexual assault the complainant was only 9 years old
and was a virgin;
accused person is the natural father of the complainant.
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
real issue this appeal is that the honourable magistrate K. Nkambule
convicted the appellant on an offence he nicer committed.
Hon. court erred in delivering judgement in the absence of
Hon. Court erred infact and inlaw by convicting appellant without
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
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
that the possibility that Mfan'fikile appellant's son made sexual
intercourse with the complainant as kids at their age may play that
honourable Court overlooked the contradicting statement by
complainant and the crown witnesses.
honourable Court erred infact and in law by failing to consider the
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.
question of remorse by appellant could not be relied on and it was
the appellant, also the fact that he was working for Swaziland
Umbutfo Defence whom appellant did not know and without his
correct statement is that appellant has served 21 years with the
is framed by his wife who is jealous of the fact that appellant is in
love with another woman.
had a steady job and mentally responsible
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.
would be pleased if the honourable court can weigh both sides of
evidence and honestly for fair justice.
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.
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.
the event the conviction of appellant is somehow justified, appellant
request the honourable court to consider the repercussions of the
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.
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.
overall effect in this appeal is that conviction and sentence is
honourable magistrate erred in passing harsh sentence which cause a
sense of shock, more so for an offence appellant did not commit.
hereby humbly prays for acquittal and discharge, or wholly suspended
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.
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.
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
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.
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
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.
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.
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.
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.
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
wearing his traditional garb and ordered him to leave the room and to
sleep at his uncle's place.
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.
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.
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
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.
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.
argument, Mr Dlamini raised the following points.
not proved by the Crown.
of the Cautionary Rule
version of the accused as supported by his witnesses was probable
Magistrate had no power to mete out the sentence that he did
propose to address these issues, the only ones raised in argument ad
seriatim. 1. Penetration
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
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.
to say, Mr Maseko argued to the contrary, submitting that the
evidence of the Doctor supports PW l's case and is corroborative
learned author Hunt, "South African Criminal Law and Procedure",
Volume II, 2nd Ed,
1982, states the following at page 440: -
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."
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.
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.
Maseko referred us to the case of S VS MHLANGA 1987 ZLR Part I, p.70,
the following excerpt by Dumbutshena C.J. appears: -
purposes of establishing the offence of rape it suffices for the
penetration to be slight."
this case penetration in the legal sense is established. Another
factor proving penetration is the fact that PW 1
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
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.
of the cautionary Rule.
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.
intend dealing with the first aspect.
of Young Children
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: -
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...
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. "
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: -
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. "
on, at page 59 of the record, the learned Senior Magistrate concluded
as follows: -
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
is, who did this? The child states that it was her father, the
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: -
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. "
REX VS S 1948 (4) SA 419 (G.
at page 422, Bok J., reasoned as follows about the corroboration of a
child's evidence: -
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
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
in sexual cases
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.
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: -
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...
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. "
ground of appeal will likewise not be sustained.
of the version of the accused.
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.
R VS DIFFORD 1937 AD 370 at 372, Watermeyer A.
propounded the timeless operative criterion in criminal cases in the
following rendering: -
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. "
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.
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
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.
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.
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.
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.
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.
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.
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
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.
it is so ordered.