IN
THE HIGH COURT OF SWAZILAND
HELD
AT MBABANE
CRIMINAL
CASE NO. 61/04
In
the matter between :
REX
VERSUS
ZACHARIAH
MKHONTA
CORAM
SHABANGU AJ
FOR
THE CROWN MR. P. DLAMINI
FOR
THE DEFENCE MR. Z. MAGAGULA
JUDGEMENT
16th July, 2004
The
accused, one Zacharia Mkhonta, is indicted before this court on two
counts. On the first count he is charged with rape and on the second
count he is charged with incest. On the rape charge it is alleged
that he is guilty of rape;
"In
that between November, 2002 and September, 2003, the exact dates not
known to the Director of Public Prosecutions, and at or near Matsapha
Police Camp in the Manzini Region, the said accused did unlawfully
and intentionally have sexual intercourse with one Chazile Mkhonta a
female minor aged 7 years who in law is incapable of consenting to
sexual intercourse and the accused did thereby commit the crime of
rape. "
On
count two which relates to incest it is alleged
"The
accused is guilty of the crime of incest- in that between November
2002 and September, 2003, the exact dates not known to the Director
of Public Prosecutions; and at or near Matsapha Police Camp, in the
Manzini Region, the said accused an adult male, did unlawfully and
intentionally have sexual intercourse with Chazile Mkhonta, the
accused being by blood relation the father of Chazile Mfkhonta whom
he is consequently prohibited to marry. "
On
the rape count the notice is given that "The Crown shall contend
that the crime was attended by aggravating circumstances in that :-
the
accused is the biological father of the complainant.
the
accused conducts (sic) were repeated over a long period of time.
the
accused abused a relationship of trust and stood in loco parents'
over the child,
the
accused did not use a sexual protective device when he engaged in
unlawfully (sic) sexual intercourse with the minor (e.g. he did not
use a condom) thereby putting the complainant at risk of contracting
venereal diseases including HIV/AIDS, (v) the complainant was a
minor of tender age six years old and a virgin at the time of rape,
(vi) The accused is a police officer, who is entrusted to safeguard
citizens of this country against all forms of abuse, including
sexual abuse."
In
support of the counts the crown has called the minor child upon whom
the rape and incest was allegedly committed. Her evidence in chief
was that she began to reside at Matsapha Police Camp with her father
in December, 2002. She testified that during the time she resided
with his father between December, 2002 and 17th September, 2003 her
father would instruct her to lie facing up, to take off her panty and
then insert his penis in her vagina. She said that after inserting
his penis the father would make movements and that he would beat her
if she cried. She further testified that she told her mother about
this when she visited her. During cross-examination by Mr. Magagula
it was put to her that the story she had told the court about her
father having slept with her in the manner
2
she
described was suggested to her by her mother and she agreed. She
anther agreed that she did not tell this to her step mother or anyone
of the other people who resided with her in the same house because
her father never had sex with her or never slept with her xx alleged
by her in her evidence in chief. It is trite that the evidence of
certain witnesses notably accomplices, complainants in sexual cases
and young children. can not safely be relied upon in the absence of
corroboration or some other factor which is an indication xx
trustworthiness. A court is therefore required to show caution in
assessing the evidence of young children and complainants in sexual
cases.
Even
though Section 236 of the Criminal Procedure and Evidence Act
provides that court may convict an accused of any crime or offence
alleged against him in xx indictment, on the single evidence of a
competent and credible witness it has been held xx a number of cases
that before doing so, a court should bear in mini the
cautions-remarks of DE VILLIERS JP in R V. MOKOENA 1932 OPD 79 at SI,
namely xxx this provision of the Criminal Procedure and Evidence Act
should only be relied upxx where the evidence of the single witness
is clear and satisfactory in every mater:_ respect. See also S V.
FFRENCH - BEYTAGH 1972 (3) SA 430(A) at 115-6. In R MOKOENA 1932 OPD
79 at 80 DE VILLIERS J.P. observed chat
"The
uncorroborated evidence of a single competent and credible witness is
xxxx doubt declared to be sufficient for a conviction by S.256 of the
Criminal Procedure Act, but in my opinion that section should only be
relied on where. the evidence of the single witness is clear and
satisfactory in every matexxx respect. Thus the section ought not to
be invoked where for instance, in witness has an interest or bias
adverse to the accused, where he has made previous inconsistent
statement, where he contradicts himself in the witnexxxx box, where
he has been found guilty of dishonesty, where he has not had. proper
opportunity for observation, etc. "
HOFFMAN
& ZEFFERT, SOUTH AFRICAN LAW OF EVIDENCE. 3rd Editior
at
454 make the observation with regard to the evidence of accomplice a
witnesses, whxxx observation is equally applicable to evidence of
young children and complainants-sexual cases that;
3
"Before
relying upon the evidence of an accomplice the court should find some
circumstance which can properly be regarded as reducing the danger
that it might convict the wrong person. Corroboration is the best
known and perhaps the most satisfactory of such safeguards. But the
list is an open one, each case depending upon its own peculiar
circumstances. "
If
the court seeks to find such safeguard in corroboration it must be
corroboration implicating the accused, (see HOFFMAN & ZEFFERT 3RD
edition supra page 454. see also S V. MAHLABATHI 1968 (2) SA 48 (A)
at 51). In the present case as already observed the evidence of the
complainant who is a young child cannot be said to be satisfactory in
all material respects in the manner described above. She contradicted
herself in the witness box in a manner which indicated that she could
easily accept any suggestion being put to her on who might have had
sexual intercourse with her. if anyone. To illustrate this during her
evidence in chief she said it was her biological father who had had
sexual intercourse with her at the time she resided with him in
Matsapha. During cross-examination she agreed with the defence
counsel that her father never had sexual intercourse with her and
that it was her mother who had suggested to her that her father slept
with her. Later, on re-examination by Crown Counsel she again changed
her story and agreed with Mr. P. Dlamini who appeared for the crown
that her father did have sexual intercourse with her. In the
circumstances I cannot say that her evidence, which is the only
evidence which would have implicated the accused in the offences with
which he is charged, is satisfactory in every material respect. Her
evidence in light of the above is not trustworthy and cannot be
relied upon to support a conviction. Furthermore the accused has
denied having had sexual intercourse with his daughter and the
essential question being whether on all the evidence there is a
reasonable possibility of the defence story being substantially true,
it seems to me that indeed there is a reasonable possibility of the
defence story being substantially true. R V. M. 1946 AD 1023 at
1026-7; R V. DIFFORD 1937 AD 370. In this regard one would have
regard to the fact that when the child was discovered to have the
wound which she explained to her mother as having been caused by her
father in October, 2003 the child had not stayed with the father for
at least a month. It was also part of the crown case on the evidence
that the alleged sexual contact between the accused and the child
cook place whilst the accused's wife who passed away in August, 2003
was still alive. This would mean that
4
the
alleged sexual contact between the accused and the child which would
therefore be responsible for the condition of the child's genital
organs occurred earlier than August. 2003 some two months prior to
the date when the mother allegedly was told by the child how the
wound had come about, on 14th October, 2003 or towads the end of
October. 2003, For about two weeks after 17th September, 2003 the
child had been admitted to hospital after having been involved in a
motor vehicle accident. During the period she was in hospital she was
being bathed or washed by an older sister to her mother who
apparently ought to have noticed the condition of the child's genital
organs which condition gave rise to the present charges. In other
words, in the ordinary nature of things the inflamation and
tenderness on the labia minora, the ulcerative lesion on the lower
end of the vagina would have been seen by the mother's sister during
the time the child was in hospital if there had been interference by
the father prior to the accident. This condition which was not
noticed at the hospital when the child was admitted in connection
with the accident is likely to have been brought about when the was
already at her mother's parental homestead at Mayiwane. If the
condition came about from anytime between October and November, 2003
then the accused who did not live with the child at the time cannot
be responsible. The mother only reported to the Police and had the
child examined on 17th November, 2003 after at least three months
from the time when the accused could possibly have committed the
crime. Between October and November, 2003 the child was left with
another man of twenty four years said to be her uncle. The child said
that the father raped her twice during the time she stayed with him
in Matsapha and that she would rape her in the dining room of a three
bedroomed house occupied by two families with at least five other
adults. Having regard to these factors there is a reasonable
possibility that the defence story, namely that the condition of the
child's genitals cannot be linked to the accused who only stayed with
the child in Matsapha at least two months prior to the discovery
whereas the child at the time of the discovery of the condition of
her genital area was staying at Mayiwane in Hhohho at the parental
homestead of her mother.
5
In
the circumstances I am not satisfied that the crown has proven beyond
a reasonable doubt that the accused raped her six year old daughter
or committed incest with her. I find the accused not guilty and
acquit him.
ALEX
S. SHABANGU
ACTING
JUDGE
6
