HIGH COURT OF SWAZILAND
MAPHALALA – J
the Crown A. MAKHANYA
the Defence MR. J. MAVUSO
indictment and pleas.
accused person is charged with the rape of a two (2) year old girl.
Crown alleges that upon or about the 8th September 2002, and at or
near Ntsubane area, in the Lubombo district, the accused did
intentionally have unlawful sexual intercourse with Hlengiwe
Ngcamphalala, a female aged two (2) years old at the time and who is
in law is incapable of giving consent to sexual intercourse. The
Crown further alleges that this rape is accompanied by aggravating
circumstances as envisaged under Section 185 (bis) of the Criminal
Procedure and Evidence Act, 1938 as amended in that:
the time of the commission of the crime the complainant was a minor
of two years;
complainant had no sexual experience.
that the accused is guilty of contravening Section 3 (1) of the Girls
and Women's Protection Act 39 of 1920 in that upon or about the 8th
September 2002, the accused intentionally had carnal connection with
the said child.
accused has pleaded not guilty to both the main charge of rape and
the alternative charge under the Girls and Women's Protection Act. He
is represented by Mr. Mavuso and the Crown is represented by Mr.
Crown called four witnesses to prove its case. 2. The Crown's
first Crown witness called was PW1 Philisiwe Ngcamphalala who is the
mother of the victim. She testified that on the 8th September 2002,
she discovered that her 2-year-old daughter had been raped by the
accused. It was in the evening of that day when she came into her
house she found the accused having sexual intercourse with her
daughter. When the accused saw her he quickly put on his trouser. She
saw that the child had some substance on her private parts. She then
raised an alarm and called one Senzo Ngcamphalala (PW2) and one Vusi
Shongwe who is the grandfather to the child to come and see the
victim. They apprehended the accused person and tied him with ropes
whilst means were made to report the matter to the soldiers who had a
camp nearby. However, the soldiers could not help them that night
saying that this was a domestic matter that they should resolve it
themselves as a family. They then untied the accused person, as he
was also a member of the family. The matter was then reported to the
police the following day.
Crown then called PW2 Dr. Francis Mason, the Medical Doctor who
examined the child. The doctor produced a medical report which was
entered as exhibit "A". In the report the doctor found that
there was "evidence of sexual activity". The doctor
recorded that the hymen was broken. He was cross-examined by Mr.
Mavuso for the accused as to other possible causes of a broken hymen
other than sexual intercourse. The doctor agreed that there might be
other causes but in his experience he had not encountered them.
Further his level competency in such matters was challenged by Mr.
Mavuso suggesting that a more reliable report would have been
compiled by a specialist gynaecologist. However, in my assessment his
evidence was clear that the child had been sexually molested. Though
he could not say when the rape took place but merely stated it would
be 48 hours up to 5 - 7 days before the examination.
third Crown witness was PW3 Senzo Ngcamphalala who is also staying
with PW1, the victim, the grandfather and the other children. He
testified that on the day in question at around 8.00pm they were
seated in the kitchen with PW1 listening to a drama over the radio.
PW1 then went to the main house to sleep where the complainant was
sleeping together with her little sister. After some time he heard
PW1 sounding an alarm. At that time PW3 was seated with Vusi Shongwe.
He then went to the house in answer to the alarm. He found the
accused person kneeling on the floor and when he asked him why he was
kneeling the accused answered that he was opening the radio. The
radio was in a small table next to the bed. The two children were
sleeping on the floor between the table and the bed. Thereafter the
witness was asked to fetch a rope to tie the accused person. They
then went to report the matter to the soldiers.
testified that his grandfather lit a torch on one of the children and
he saw that the complainant was wet on her thighs. However he cannot
say whether she urinated herself or what.
Crown then called its fourth witness, the investigating officer 3890
Detective Constable Sifiso Lokotfwako of Lavumisa Police Station. The
officer related to the court how he went about his investigations and
eventually arrested the accused person.
the close of the Crown case Mr. Mavuso applied for the discharge of
the accused person in terms of Section 174 (4) of the Criminal
Procedure and Evidence Act. However, during argument he conceded that
at least the Crown has made a prima facie case in respect of the
alternative charge, that of statutory rape. The accused then gave his
evidence in his defence under oath. His version of events is that on
that day in question he had been drinking alcohol with friends and on
his way home he went via PW1's house. As he was passing by he saw the
door to the house slightly ajar. He knocked at the door but there was
no response. He then went inside where he found two children sleeping
in the room. He removed his shoes. He then played the radio which was
next to the bed. As he was changing the cassette on the radio, he
knelt down next to the children. PW1 then came to the room and was
scared and in the process she sounded an alarm. He saw that PW1 did
not recognize him. PW1 then went outside to call the others. His
explanation is that he did not rape the child but was playing
cassettes on the radio.
accused person was cross-examined at some length by Mr, Makhanya for
the Crown where in the main he denied raping the child. He offered an
explanation as to why PW1 would implicate him in this case. He stated
that PW1 prior to this incident was conspiring to have him arrested
as she alleged that he was troublesome. He told the court that PW1's
husband told him about this plot.
Makhanya argued that the Crown has proved its case beyond a
reasonable doubt in that the evidence of the mother (PW1) is
corroborated by the evidence of the doctor (PW2) that the child was
sexually molested. Further that the evidence of PW1 is corroborated
by that of PW3 in all material respects. The court was urged to
reject the accused explanation that he was framed by PW1 as an
afterthought as it was not put to PW1 when she gave her evidence.
court was referred to the authority of P.M.A. Hunt, South African Law
and Procedure, (Vol. (II)) (2nd ed) at page 440 to 441 on what
constitute sexual intercourse, where the learned author states the
must be penetration, but if suffices if the male organ is in the
slightest degree within the female body. It is not necessary in the
case of a virgin that the hymen should be raptured,
in any case it is unnecessary that semen should be emitted.,.".
Mavuso for the accused person advanced argument au contraire that the
Crown has failed to discharge its onus of the burden of proof and led
evidence against the accused person beyond a reasonable doubt. The
first point submitted is that the evidence of PW1 (mother) has not
been corroborated in that it is open to speculation what she meant
when she said that the accused was on "top" of the child.
Further on the evidence of PW1 it was argued that the grandfather
Phillip Ngcamphalala has not been called to testify. He also saw the
substance in the child's private parts. Again it is open to
speculation what the substance was.
second attack is directed at the evidence of the doctor (PW2) who
examined the child that his evidence is suspect. The argument in this
regard is that the doctor did not have sufficient qualifications to
be able to give the court assistance on what happened to the child.
That a specialist gynaecologist would have shed more light on this
controvential point. In this regard the court was referred to the
textbook by L.H. Hoffmann and DT Zeffert, The South African Law of
Evidence (3rd ED) at page 79. The evidence of the doctor again came
under attack in that his evidence does not link his findings to the
third point raised on behalf of the accused person is that the
accused has given an explanation. In this regard the court was
referred to Hoffmann et A1 (supra) at page 409 where the authors
cited the authority in the celebrated case of R vs Difford 1937 A.D.
370 at 373 where the following was propounded; thus:
onus rests on the accused to convince the court of the truth of any
explanation which he gives. If he gives an explanation, even if that
explanation is 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".
fourth and last argument is that the Crown has failed to prove a
crime in terms of Section (3) of the Girls and Women's Protection
court's analysis and conclusions thereon.
evidence which directly implicated the accused person with the
commission of the offence is the evidence of the eyewitness PW1 who
saw the accused person on top of the child. As it has been stated
above she said accused had his trousers over his knees. On further
examination of the child she observed a watery substance between the
child's thighs. This witness then sounded an alarm where other people
in the homestead responded. These included PW3 Senzo Ngcamphalala and
the grandfather. PW3 said when he went to the house where the
children were sleeping he saw the accused kneeling next to the
children. This evidence corroborates that of PW1 (mother). The
accused person was tied up. The following day the matter was reported
to the police and the child was seen by the doctor (PW2). The doctor
observed on the child that there was "evidence of sexual
activity". All this evidence in my respectful view showed
clearly that the accused sexually molested the child on the day in
question as observed by PW1 and being corroborated by PW2. In this
regard I find what was said by Leon JA (as he then was) in the Court
of Appeal case of The King vs Abraham Ngwenya and another —
Criminal Appeal Case No. 33/96 (unreported) apposite. The learned
Judge of Appeal stated the following at page 5.
Magistrate quite rightly was highly critical of this omission and of
course in rape cases medical evidence should always be led or a
report handed in by consent wherever that is possible. However, the
failure to lead medical evidence does not, in my view, mean that such
failure must inevitably lead to the conclusion that is fatal to a
conviction. In fact when this point was put to counsel for the
appellant he was constrained to concede the correctness of that view.
There is no rule of law which requires the court to refuse to convict
an accused in the absence of corroborative evidence of penetration.
Caution must be exercised because rape cases are easy to lay and
difficult to disprove. But even where there is no corroboration
properly so called of the actual penetration there may be direct and
circumstantial evidence which cumulatively points in that direction
and that direction only ..." (my emphasis).
find that in casu that even though no corroboration properly
so-called of the actual penetration there is ample direct and
circumstantial evidence which cumulatively points in that direction
and that direction only. The observations by the doctor cannot
wished away or down played in this matter. The evidence of PW1
(mother) and (PW3) places the accused on the spot.
to the accused explanation I reject it in toto simply on the basis
that it was not put to PW1 that in fact she had implicated him in the
commission of this crime as she had planned to do so prior to the
incident. In this regard the dicta by Hannah CJ (as he then was) in
the often-cited case of Rex vs Dominic Mngomezulu and 10 others —
Criminal Case No. 96/94 is apposite. The learned Chief Justice in
that case held that failure by the defence to put the story of the
accused lead the court to draw an inference that whatever he says for
the first time in his evidence-in-chief must be clearly regarded as
an afterthought. In the present case the accused advanced this
defence in cross-examination and this evidence differed with his
evidence-in-chief such that his attorney was taken aback and could
not reconcile it with his instructions. Mr. Mavuso disassociated
himself with accused person's evidence under cross-examination. This
apparent incongruity in my view, presents the court with a problem of
which evidence to believe. It appears to me that this material
contradiction goes to his credibility as a witness. Therefore he is
not to be believed.
the circumstances of this case and for the reasons I have given above
I find that the Crown has proved its case beyond a reasonable doubt
as to the guilt of the accused person in respect of the first count
viz that of rape. I also find that the rape was accompanied by
aggravating circumstances as contended by the Crown.
the result, the accused is found guilty of the rape of the Hlengiwe
was 2 years old at the time.