Rex v Ngcamphalala (NULL) [2004] SZHC 126 (29 July 2004);

THE HIGH COURT OF SWAZILAND

REX

Vs

SIFISO CORNELIUS NGCAMPHALALA

Criminal Case 34/2003

Coram MAPHALALA – J

For the Crown A. MAKHANYA

For the Defence MR. J. MAVUSO

JUDGMENT

(29/07/2004)

1. The indictment and pleas.

The accused person is charged with the rape of a two (2) year old girl.

The 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:

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1. At the time of the commission of the crime the complainant was a minor of two years;

2. The complainant had no sexual experience.

Alternatively 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.

The 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. Makhanya.

The Crown called four witnesses to prove its case. 2. The Crown's evidence.

The 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.

The 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

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further 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.

The 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.

PW3 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.

The 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.

2. The Defence evidence

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At 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.

The 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.

3. The arguments.

Mr. 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.

The 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 following;

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"There 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,

and in any case it is unnecessary that semen should be emitted.,.".

Mr. 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.

The 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 accused person.

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:

"No 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".

The 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 Act.

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4. The court's analysis and conclusions thereon.

The 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.

"The 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).

I 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

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be wished away or down played in this matter. The evidence of PW1 (mother) and (PW3) places the accused on the spot.

Coming 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.

In 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.

In the result, the accused is found guilty of the rape of the Hlengiwe Ngcamphalala

Who was 2 years old at the time.

S.B. MAPHALALA

JUDGE