IN
THE HIGH COURT OF SWAZILAND
HELD
AT MBABANE CRIMINAL
CASE
NO. 77/03
In
the matter between:
REX
VERSUS
SIFISO
MDUDUZI NDLANDLA
CORAM
SHABANGU AJ
FOR
THE CROWN MS. MUMCY DLAMINI
FOR
THE DEFENCE IN PERSON
29th
July, 2004
The
accused a man of about 19 years of age was indicted before this court
on a charge of rape, it being alleged that he is guilty of rape,
"In
that upon or about 9th October, 2002 at or near Mabovini area the
said accused person, a male did intentionally have an unlawful sexual
intercourse with Junior Stewart, at the time she was 5 years of age
and who in law is incapable of consenting."
The
accused pleaded not guilty to the charge. There is no medical report
submitted for the purpose of establishing if indeed there was
interference with the child's genital area in a sexual manner or
otherwise. The evidence that is submitted by the crown in an attempt
to link the accused with some crime, including rape, is the testimony
of two of the crown witnesses, namely Lomaswazi Mabuza and the child
herself. The child called by the crown showed considerable difficulty
as a witness and testified that she knew the accused
and
that the accused took out his penis and inserted same in her. When
asked where the penis was inserted she stated that it was on the
front part of her body which she initially labelled as "mgomini".
It later turned out that by Mgomini she was not referring to a part
of the body but a place which had a number of gum trees close to her
home. When the same question was put to her again she answered that
the penis was inserted in her anus. It took considerable effort by
counsel for the crown to elicit most of the answers relating to the
essential elements of the crime, from her. The word she used to
describe the part of the body where the penis was allegedly inserted
is the word which in English refers to the anus. She was later after
sometime asked to tell the court whether the place she described as
anus is the one used for urinating or the one used to pass fecal
waste to which she responded by saying that it was the 'anus used for
urinating.' The witness continued to state that she was wearing a
panty before the accused inserted his penis in her. She further
stated that the accused used a knife which he allegedly brought from
his homestead, to tear the panty she was wearing. The child was also
questioned by the Acting Director of Public Prosecutions if the
accused did put anything on his penis before inserting it into her
vagina to which he replied in the affirmative stating further that
the accused had used a condom. She said the condom was white in
colour, after a long time and after a lot of probing. She further
testified that no one had ever inserted his penis in her vagina
before. On whether the accused did anything after inserting his
penis, the child after being quite for some time eventually responded
and said the accused did nothing after inserting his penis in her
vagina. She further stated that after the incident the accused gave
her 50 cents and told her to go and buy chips which she did. She
later pointed to her brown trouser and identified the trouser as the
one she was wearing on the day in question and that the trouser was
torn by the accused. The trouser was torn at the back where both
sides of the trouser are sewn together and are joined. On being
questioned about the position she was in when the accused allegedly
inserted his penis on her she said the accused had told her to sleep
facing upwards. During cross-examination the accused who appeared in
person denied ever inserting his penis on the vagina or anus of the
child, putting to her that if he had inserted his penis in her vagina
she would have been injured or bruised because of her age. The child
responded to this by saying she did not get injured or get bruises of
any kind. On being asked to explain how it was that she
2
did
not suffer any bruises or injuries on her genital area considering
that she was too young compared to the accused she gave no response
inspite of several attempts to elicit an answer from her. The accused
further asked the child to explain if there was any reason for the
tearing of the trouser with a knife considering that her version was
that when she was asked to lie down facing upwards she allegedly did
so.
I
am required because of the age of the child to exercise caution in
accordance with the cautionary rules when assessing the evidence of
the child. "The cautionary rales have been evolved because the
collective wisdom and experience of judges has found that certain
kinds of evidence cannot be safely relied upon unless accompanied by
some satisfactory indication of trustworthiness. Corroboration may be
sufficient indication of trustworthiness but there are may others.
There is no closed category of pointers to truth; if the court is
satisfied upon rational grounds that a witness is reliable, it is not
obliged to reject his evidence because those grounds have not yet
been mentioned in any decided case" see HOFFMAN & ZEFFERT,
THE S.A. LAW OF EVIDENCE 3rd edition page 450. At page 455 HOFFMAN &
ZEFFERT supra make the following observation, namely, that
"Experience
has shown that it is very dangerous to rely upon the uncorroborated
evidence of the complainant unless there is some other factor
reducing the risk of a wrong conviction in cases which involve a
sexual element - a view that is currently enraging feminists and
which has, as a result, led to the rejection of the need for caution
by some lawyers, who should know better than to pander to trendy and
emotional protests, but which, nevertheless, seems to have been
justified from as early as Joseph's troubles with Potiphar's wife.
The bringing of the charge may have been motivated by spite, sexual
frustration or other unpredictable emotional causes."
However
as HOLMES J.A. in S V. ARTMAN 1968 930 SA 339A at 341B a case where
the only witness implicating the accused was a girl of 16, remarked
that
"While
there is always a need for caution in such cases, the ultimate
requirement is proof beyond reasonable doubt; and courts must guard
against their reasoning tending to become stifled by formalism. In
other words, the exercise of caution must not be allowed to displace
common sense. "
The
dicta of DE VILLIERS JP in R V. MOKOENA which has been quoted with
approval in a number of latter cases dealing with the subject is
significant because of the requirement that before any such evidence
is relied upon to support a conviction it must be satisfactory in all
material respects and the evidence ought not to be relied upon where
3
for
instance the witness has an interest or bias adverse to the accused,
where he has made a previous inconsistent statement, where he
contradicts himself in the witness box, where he has been found
guilty of an offence involving dishonesty, where he has not had a
proper opportunity for observation. See also S V. FFRENCH-BEYTAGH
1972 (3) SA 430 (A) at 445-6.
It
cannot be said that the evidence of the young child is satisfactory
in every material respect. From the testimony of the mother of the
minor child it appears that there is a previous inconsistent
statement made by the child to her mother and such statement is not
consistent with her evidence in court. The child having said in court
that when the accused inserted his penis in her vagina she was lying
in a position facing up, whereas the mother says the child told her
that the accused had made her kneel, took out his penis and inserted
it into her vagina from the back. That is a material contradiction.
Furthermore the child says she was not injured or bruised in any
manner, yet the mother towards the end of her evidence in chief
stated that the child's genital area was "bruised and a little
red." The evidence of the crown's second witness Lomaswazi
Mabuza is to the effect that having woken up early on the day in
question to cut grass and when she returned from this mission she saw
a wheelbarrow with two bags of dry maize along the main road.
Lomaswazi Mabuza states that on looking around she noticed the
accused whom she says was making movements which she associated with
sexual acts against the ground or sand. She says she advanced closer
to where the accused was and because she could not see any other
person with whom the accused was allegedly performing these sexual
acts, enquired from the accused who she suspected of being mentally
disturbed, as to what he was doing. This witness says the accused
responded to this question by simple lifting up his head and looking
towards the direction of the witness and saying "MMH...",
after which he continued with what he was doing.
The
further testimony of this witness is that after this response from
the accused she also decided to ignore what was happening and
proceeded to drop her grass at her homestead. However she says she
came back and noticed that the accused had already taken hold of the
wheelbarrow he was pushing and that she saw a child who according to
her appeared
4
to
come from the spot where she had seen the accused making those
movements which she associated with sex. She also says strangely that
she saw the child emerge from under the accused when she came back to
the road after dropping the grass at her homestead. She says she did
not see a condom even though she came close. It is also strange that
she did not see the child from under the accused at the time she
allegedly advanced close to where she alleges the accused was making
sexual movements against the child. According to her evidence she
came close enough to be within hearing distance with the accused, but
strangely she did not see any other person who was participating in
the sexual movements of the accused. I am not persuaded that if the
child was the other person in the alleged sexual movements the
accused was allegedly performing, this witness would not have seen
her. She was emphatic on a number of times during her evidence that
the accused was "having sex with the sand or ground." This
is a very strange statement and observation. Further, in the absence
of the doctors medical report it is reasonably possible. On the
evidence it is not shown that there was even interference of any kind
with the childs' genital organs or area. According to the evidence of
the mother and the child, she was indeed examined by a doctor at the
Mankayane Government Hospital and the results of this examination
would have been independent and professional evidence establishing
whether there was interference with the childs' genital organs in any
manner. Furthermore, even though the mother says that on her own
examination of the child she noticed what she described as dried
semen on the buttocks and thighs of the child she does not say that
there was any semen on the childs' genital area. The medical doctor's
examination would have dealt with all these matters. During
cross-examination of the mother and during submissions the accused
raised a concern that the mother's allegation that what she saw was
dried semen is discounted to a large extent by the fact that the
accused allegedly used a condom. In the circumstances the decision
taken by the Acting Director of Public Prosecutions not to press for
the conviction of the accused on the rape charge is not necessarily
incorrect. The Acting Director of Public Prosecution conceded during
submissions that the crown evidence does not establish rape and
abandoned the idea of pressing for a conviction on the charge of
rape. Because of all the aforementioned factors I cannot find the
accused guilty of rape. The Acting Director of Public Prosecutions,
however, even though she
5
decided
not to seek a conviction on the rape charge argued that the accused
should at least be found guilty on a lesser competent verdict of
indecent assault. She could not say what form did the indecent
assault allegedly took. Section 185 (1) of the Criminal Procedure and
Evidence Act, 67 of 1938 provides that "Any person charged with
rape may be found guilty of indecent assault..." Where the
evidence offered by the prosecution, while falling short of the crime
charged, succeeds in establishing some of the component facts of the
crime charged which amount in law to an offence less serious in
degree, then, under the specific provisions of section 181 to 195
under Part XII C of the Criminal Procedure and Evidence Act, 67/1938
a verdict of guilty of the offence of less degree may be returned.
Whatever the law may be in relation to indecent assault the major
difficulty in the way of the crown's case on this aspect of the
matter is that the difficulties relating to the crown's evidence on
whether there was indeed a rape are to a large extent also applicable
to the question whether there is anything which connects the accused
to any form of sexual contact or indecent contact to the child. In
this context I am not satisfied that there is evidence sufficiently
connecting the accused with any wrong doing of either a sexual nature
or indecent nature. It certainly cannot be said there it is not a
reasonable possible that such sexual acts or indecent acts did not
occur.
In
the circumstances the accused is found not guilty and is acquitted
and discharged.
ALEX
S. SHABAKGU
ACTING
JUDGE
6
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