THE
HIGH COURT OF SWAZILAND
Criminal
Case No.171/02
In
the matter between:
REX
Vs
SIPHO
DUBE
CORAM
:SHABANGU A.J.
For
the Crown ;Ms Wamala
For
the Defence : Accused in person
JUDGEMENT
8TH DECEMBER, 2004
The
accused is charged with rape it being alleged by the Crown that he is
guilty of rape,
"In
that upon or about the 16th April, 2000 and at or near Mangcongco
area in the district of Manzini, the accused did wrongfully and
intentionally have unlawful sexual intercourse with Vuyisile Bhembe,
without her consent and did thereby commit the crime of rape."
The
crown further gives notice in the indictment that it will contend
during the trial that the alleged rape was attended by aggravating
factors as envisaged under section 185 (bis) of the Criminal
Procedure and Evidence Act 1938, in that: -
2
"(a)
At the time of the commission of this crime, the complainant was a
female aged nine (9) years.
At
the time of the commission of this crime, complainant was throttled
by the accused. "
The
complainant gave evidence during the trial and testified that
sometime in April, 2000 she was at her grandparent's home when the
accused sent her to take his traditional beer and a slasher to his
(that is the accused's) house. The complainant was supported on this
aspect of her testimony by her mother. The complainant went on to
testify that she proceeded to the homestead of the accused who is
known in the area as Mdladlana. The complainant says she did not have
any prior knowledge of the accused before this day even though she
goes on to say later in her testimony that she had seen the accused a
few days prior to the alleged rape incident. She goes on to say that
as she walked towards the homestead of the accused she saw the
accused follow her. As she reached the accused's homestead the
accused showed her the hut she was supposed to go to for purposes of
delivering the traditional beer and slasher. The complainant further
testifies that she entered the hut but was blocked by the accused on
her way out. The accused allegedly closed the door thus preventing
the complainant from leaving. The complainant says the accused took
out a knife to threaten her. She says she cried and requested that
the accused allows her to go home because her parents were waiting
for her. There was allegedly some red ointment in the hut which the
accused is said to have picked up using his knife and smeared the
ointment on the complainants genital area. Following this the accused
is then alleged to have "lied" on top of the complainant
putting his penis in the genital organs and that when the complainant
cried the accused throttled her and "inserted his penis on the
'complainants' buttocks." The complainant also states that the
accused hit her with a knobstick on the lower part of her vagina. At
this stage the complainant's mother arrived outside the hut shouting
the name of the complainant. Apparently according to the
complainant's testimony her mother was moving from one hut to another
shouting her name in search for her. When the mother came to the hut
in which the complainant and the accused were allegedly in, the
accused is said to have proceeded to answer the door whereupon he is
alleged to have told the mother that the
3
complainant
was not there but had gone to the river with his wives. The
complainant testified further that whilst all this happened she was
lying inside the accused's hut. I might mention at this stage that it
does not appear that she attempted to raise an alarm at this stage.
This is strange because she heard the voice of her mother from
outside. After the mother left the accused is said to have opened the
door for the child and let her go. The child (complainant) left the
hut, proceeded to her grandparent's homestead and reported to her
mother. The matter was then reported to the Police who took the
complainant to hospital where she was examined by the doctor. Even
though the child was nine years at the time of the alleged incident
in April, 2000 by the time matter came to trial she was already
thirteen years.
The
accused denies the incident and claims that the evidence against him
is fabricated.
Later
during cross-examination the complainant states, in response to a
question by the accused that accused's penis "could not
penetrate" her vagina. The complainant's testimony during
cross-examination on this aspect of the matter is as follows: -
Accused's
(question): How old am I in relation to you to have done such a
thing.
Complainant's
answer: Yes you are old but what you did is what you did and it is
true. '
Accused
: You testified I inserted my penis into you how did you manage to
walk home after I had inserted my penis in your vagina because you
are too young. You ought to have been injured to such an extent that
you could not walk.
Complainant
: Your penis could not enter or penetrate my vagina Later on the
cross-examination proceeds like this
4
Accused
: Where were you injured or bruised during the alleged incident.
Complainant
: You were not able to penetrate my vagina because my vagina is too
small for a penis to enter me.
Later
the complainant testifies "you closed the door to your hut,
inserted your penis in my vagina and then at my back or buttocks. In
light of this last statement by the complainant the reliability of
the complainant's testimony on penetration is open to reasonable
doubt. It is trite that on a charge of rape there must be
penetration. (See R vs. V. 1960(1) SA 117 @ 119, R v. E 1960 (2) SA
691 (Fc) @ 692, Milton J.R.L., South African Criminal Law and
Procedure Vol.11 2nd edition). In the circumstances the accused
cannot be found guilty of rape. There is no medical report.
There
is however an alternative charge wherein the accused is charged with
contravening Section 3 (1) of the Girls and Woman's Protection Act 39
of 1920 "in that upon or about 16th April, 2000 and at or near
Mangcongco area in the district of Manzini, the accused did
intentionally have carnal connection with Vuyisile Bhembe, a female
aged nine years. In assessing the evidence on this charge also I am
required to exercise caution because of three reasons, namely the
only evidence implicating the accused of any offence under the
statute is that of the complainant who is a young child. There is
also the fact that this is a matter involving sexual allegations.
Whereas the Criminal Procedure and Evidence Act declares the evidence
of a single witness to be sufficient for a conviction I can only
convict the accused on this kind of evidence if the evidence is clear
and satisfactory in every material respect. Where the evidence of the
single witness, in this case, the complainant who is also a young
child is not clear and satisfactory in every material respect, the
provisions of the Criminal Procedure and Evidence Act cannot be
relied upon for a conviction. Where the witness contradicts herself
/himself in the witness box or does not give his or her evidence in
an ungarbled manner it cannot be said that his or her evidence is
clear and satisfactory in every material respect. (See R VS. MOKOENA
5
1932
OPD 79 @ 80. S VS. ARTMAN 1968 (3) SA 339 A @ 341B, S VS. SNYMAN 1968
(2) SA 582G; S VS. MGENGWANA 1964 (2) SA 149 (C). It is trite that in
cases of a sexual nature 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. (See HOFFMAN AND
ZEFFERT S.A. Law of Evidence 3rd Edition page 455). As already
pointed out above it cannot be said that the complainant's evidence
is clear and satisfactory in all material respects. This is because
having said during her testimony in chief, that the accused inserted
her penis "in her" the complainant later said in
cross-examination that the accused penis did not penetrate her
vagina. In her testimony she did not raise an alarm when according to
her evidence her mother was at the door of the accused's hut with the
latter. The complainant's testimony on her prior knowledge of the
accused is vague to say the least. There is also the fact that the
denial by the accused that he sent the complainant to take his
traditional beer to his homestead is denied by the accused who says
he does not drink alcohol or traditional beer. This appears to be
supported by the complainant's grandmother and mother who admitted
during cross-examination that the accused does not drink. In the
circumstances I am not satisfied that it would be safe to convict the
accused even of the alternative charge including indecent assault. It
follows that he is acquitted and discharged of both charges.
ALEX
S. SHABANGU
ACTING
JUDGE
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