THE HIGH COURT OF SWAZILAND
K.P. NKAMBULE –J
CROWN P. DLAMINI
ACCUSED IN PERSON
accused is charged with the offence of rape. It is alleged that on or
about the 9th July 2002 and at or near Zombodze area in the
Shiselweni region the said accused did wrongfully, unlawfully and
intentionally have sexual intercourse with one Nombulelo Thandeka
Maphanga, a Swazi female minor of six years, without her consent.
the accused is charged with the offence of indecent assault in that
upon or about the 9th July 2002 and at or near Zombodze area in the
Shiselweni region, the said accused did wrongfully, unlawfully and
intentionally placed his penis on Nombulelo Thandeka Maphanga's
crown called a total of five witnesses. PW1, Xolile Myeni told the
court that both accused and complainant axe her neighbours. According
to this witness on the 9th July 2002 she asked complainant to give
her some avocado pears from a nearby Maphanga homestead. Complainant
then asked if she can tell her a story. Complainant then related how
the accused called her for food and thereafter grabbed her, stripped
her of her panty and proceeded to have sexual intercourse with her.
to PW1 she asked complainant whether she told her mother of what had
befallen her. She said she did not tell her mother as the accused had
threatened her that should she tell her mother he would kill her.
arrival from work PW1 then asked complainant to relate the story to
her mother, which she did.
Jenneth Nxumalo told the court that complainant is her daughter and
that she was born in 1996. According to this witness on the 9th July
2002 she left her homestead to attend to her neighbours who were
bereaved. She left her children at the homestead of the accused as
they are related.
also went to the bereaved homestead to assist in erecting a tent. PW2
spent the night in the homestead. After the funeral on the following
day PW2 returned to her homestead and, because she was tired after
spending the night without sleeping she went straight to bed.
Monday morning she woke up and went to work. When she went to work
she used to leave the children at PWl's homestead.
six days from the day of the funeral she went from work to collect
her children from PW1's homestead. PW1 then enquired from complainant
whether she had told PW2 about the matter. Complainant then related
to PW2 that accused had raped her.
to PW2 complainant told her that the accused after having given her
some food enquired from her if she needed a Christmas present.
Complainant's response was that she did not need any present. Accused
then grabbed the complainant and put her on the bed. She said the
accused then inserted his penis in her vargina.
mother, PW2 asked where her panty was when this happened. Complainant
answered and said the accused did not remove the panty, but simply
put his penis by pushing the panty away.
should be remembered that PW1 told the court that complainant told
her that the accused removed the panty before they had intercourse.
One of the versions must be untrue.
to this witness (PW2) she took the complainant home and observed her
private parts. PW2 stated that complainant's vargina had some whitish
staff. She then washed the child. On the following day the child was
taken to Hlatikulu Government Hospital where she was examined by a
the complainant Nombulelo Thandeka Maphanga born in 1996 gave an
unsworn statement due to the fact that she does not understand what
it means to tell the truth. She could not understand the nature and
religious sanction of an oath. It is dangerous to rely on the
evidence of this witness - more particularly because it was not
corroborated by the evidence of PW5, the doctor. Such evidence needs
findings of the medical doctor who came and gave evidence is that the
hymen was intact. Further that there was no evidence of penetration.
He further stated that all the areas around the child's private parts
were normal. She had no discharge; and that she could not even insert
a finger in complainant's vargina as the examination seemed to be
would be unsafe as well to convict the accused of the alternative
charge of indecent assault. As already mentioned that the evidence of
the complainant cannot be relied upon, then the accused cannot be
found guilty of indecent assault.
the foregoing and conclusions the accused is found not guilty. He is
accordingly acquitted and discharged.