IN THE HIGH COURT OF SWAZILAND
HELD AT MBABANE CRIM. CASE NO. 127/2007
In the matter between:
CORAM : Q.M. MABUZA –J
FOR THE CROWN : MISS L. HLOPHE OF THE
DIRECTORATE OF PUBLIC
FOR THE ACCUSED : MR. B.J. SIMELANE OF BEN J.
SIMELANE & ASSOCIATES
 The Accused was charged with the crime of rape; it being alleged that upon or about the 16th June, 2006 at or near Makhwekweti area in the Lubombo Region, the said Accused an adult male did intentionally have unlawful sexual intercourse with one Zincane Velephi Dlamini a female minor of 14 years old without her consent and did thereby commit the crime of rape.
 The crime; it was alleged; was accompanied by aggravating factors in the following manner:
The complainant was very young at the time of the rape;
The Accused intimidated and threatened to stab the victim with a knife;
The Accused was violent towards the victim;
The Accused exposed the complainant to sexually transmitted infections such as HIV/AIDS as he did not use a condom at the time of the rape.
 The Accused pleaded not guilty to the said offence: his defence being that the complainant consented to sexual intercourse with him.
 The Crown led a total of seven (7) witnesses and the defence led three witnesses.
 PW1, Zincane Velephi Dlamini and the complainant testified that she was born on the 22nd March 1991. She was in Grade 7 on the 16/6/2006. The trial herein began on the 3rd June 2010. The complainant’s age was immediately put in issue as if meant that on the 16 June 2006 when the rape occurred she was about 15 years old and could consent to sexual intercourse and not 14 years and being incapable of consent (doli incapar). In an attempt to prove her age as 14 years old at the material time the Crown called the complainant’s mother as well as a bone expert Dr. Dundun.
 PW5, Idah Khathazile Dlamini is the complainant’s natural mother. She testified that the complainant was born during March 1991 and she produced the complainant’s birth affidavit. Her evidence was that she did not give birth to the complainant at a hospital where records of birth are kept. As a result she was unable to give a precise date of birth. She gave birth at home and after sometime she went to the hospital to have the complainant weighed. At the hospital she was given a card to enable her to go and register the birth of the complainant. In order to get the card she estimated to the nurses the time when the complainant was born. The result is that the complainant’s date of birth is recorded as 22 March 1991. PW5 who is completely illiterate further testified that a month had not passed when she went to the hospital with the complainant and the nurses relied on the information that she had given them to complete the hospital card with the details of birth of the complainant.
 PW7, Dr. Kingsley Dundun an orthopedic surgeon was called to give expert evidence in a bid to assist the Crown with regard to the complainant’s age. He testified that he treated bones and joint diseases such as fractures, infections in the bones and joints and degenerative diseases such as arthritis. He testified that on the 8/6/10 he examined the complainant to try and determine her age. He interviewed her mother PW5 who gave her birth date as 1991.
 Dr. Dundun after examining the complainant concluded that her skeletal development indicated that she was presently aged between 18 – 19 years old. He conceded under cross-examination that the method used was not precise. He stated that the margin of error in the determination of age using one’s skeletal development had a margin of error of about a year either less or more; and that she could be about 20 years of age or 19 years minimum.
 The age range for full fusion of the skeletal bones in respect of the complainant indicates that she may have been 15 or 16 years at the time of the alleged rape. When she gave her evidence she was fully developed physically and mature even for an eighteen year old: more like 19 years old. Dr. Dundun further stated that it was accepted that gender was a factor in skeletal development; and that it was generally accepted that women matured and fused quicker than men. I agree with Mr. Simelane that the Crown failed to prove that the complainant was 14 years as on the 16th June 2006.
 Having made the finding that the complainant was 15 or 16 years old at the time of the alleged rape she no longer falls into the age range wherein she is irrebuttably presumed to be incapable of consenting to sexual intercourse. At 16 years of age she is capable in law of consenting to sexual intercourse.
 The complainant denied that she consented to sexual intercourse with the Accused. Her evidence is that at that time that she was raped during June 2006 she resided at Makhwekweti in the Lubombo region. She lived with her parents and attended Makhwekweti Primary School Grade 7.
 On the 16th June 2006 she together with other school children had gone to watch a soccer match and netball. She was with Gabsile Gamedze (PW3), Phephile Thabile Ndlangamandla (PW4). After watching the netball match, the three girls went to pass water in the bush. Thereafter the Accused and some friends of his namely, Mpendulo Ndlangamandla, Mfanzile Mavuso stopped her while the Accused held her firmly by the hand and took her forcefully to his friend one James Dlamini’s home where they spent the night. When the Accused held her hand, the complainant states that she cried out but the Accused and his friends exclaimed that she was playing. They walked with her and stopped in the shade of a tree for ten minutes about three hundred metres away from the sports ground. She informed the court that there were many people at the sports ground comprising of teachers and pupils. Gabsile (PW3) returned to the sports ground while Phephile (PW4) stood apart and talked with James Dlamini.
 The Complainant testified that when she cried out, both PW3 and PW4 heard her; nobody else did. After ten minutes standing in the shade at about 3 pm the complainant, Accused, Mfanzile and Mpendulo left for James Dlamini’s house while the games continued. They walked an entire ten (10) Kilometres and arrived at about 9.00 p.m.. The complainant testified that she did not go willingly. They did not meet anyone along the way. Upon arrival the complainant and the Accused used James’s room. She asked to go and have drink and tried to raise an alarm but the Accused threatened to injure her with a knife that she saw for the first time outside James’s hut. She could hear people talking and making wise nearby at a kitchen. Mfanzile and Mpendulo went their separate ways upon arrival.
 When the complainant and the Accused at James’s home went into James’s room, he lay on the bed while she remained standing. The Accused whilst still dressed moved from the bed into a grass mat on the floor while she remained standing. She eventually joined him on the mat. He invited her to undress and she refuels. He again threatened her with the knife and she undressed and so did he and they both slept on the mat. He had sexual intercourse with her and again after a ten minute interval. She felt pain. He did not use a condom. She did not consent to having sex with the Accused. After having sex they slept until morning. She stated that the Accused used to propose love to her on many occasions but she had rejected his proposal.
 In the morning James came to tell the Accused that the complainant’s mother PW5 was looking for the complainant. The Accused thereafter accompanied the complainant to the gate of her home which was some distance away as it took one and a half hours to get there. It was not yet sunrise when she reached home. Upon arrival at her home, the complainant’s mother PW5 asked her where she was coming from: she told her. They slept thereafter and in the morning both the complainant and PW5 went to the Accused’s home. The Accused was not at home but PW5 spoke with his mother; thereafter the complainant and PW5 returned home.
 After some time the complainant went to report the matter to the police at Sithobelweni. The police took her to the clinic at Sithobelweni where she was examined by
Dr. Phiri (PW2) from there she was taken to Hlatsi Government Hospital where she was further attended to.
 It was put to her during cross-examination that she had eventually accepted the Accused’s proposal during a lobola ceremony at a Mkhaliphi homestead during an Easter weekend during 2006. She denied having accepted the Accused’s proposal then even though she admitted that she had attended the lobola ceremony. It was put to her that subsequent to her having accepted the Accused’s proposal, the Accused and his friend Mphendulo paid her a visit one night. She confirmed the visit at night but in re-examination stated that she could not remember if they had spoken at all with the Accused. She recalled that she was asleep when she found them seated in the house. They left later that same night. The hut in which the complainant slept in was separate from the main house. It was put to her that her father went to he Accused’s home to confirm for himself that the Accused and the complainant were having a relationship. She denied that her father had done.
 It was put to her that during the ten minutes they stood together with the Accused in the shade he was trying to persuade her to spend the night with him. She denied this. It was further put to her that the reason her friends left her alone with the Accused in the shade was because they knew that she had a relationship with the Accused. She denied this. Asked why she did not scream to Gabsile and Phephile to rescue her when the Accused had forcibly taken her hand and led her away; she responded that she had cried out.
 Asked why the people, students and teachers watching the games did not respond to her cry her response was that the Accused told her that she was joking. Asked why Phephile who was languidly talking to James her boyfriend did not respond to her cry she responded that perhaps she was afraid. Asked why Gabsile casually left her in the company of the Accused which the complainant was shouting and screaming and failed to call for assistance instead joined the may people at the sports ground; her response was that Gabsile may have told some people as she was among the people who were looking for her at night.
 She was asked why she did not seek help from homesteads along the route she and the Accused took home. Her response was that there were no homesteads on either side of the road; the few that were there far away. She asked why she did not raise a hue and cry along the way as they met students, Mpendulo’s brother and even a teacher from the school. Her response was that she did not see the teacher. Asked why she did not raise an alarm to Mpendulo, James and Mfanzile that the Accused was taking her against her will. Her response was that she was afraid as she did not know what they had all agreed to about her.
 It was put to her that she had left the sports ground willingly and that this was evidenced by the fact that she and Accused casually strolled behind James, Mfanzile and Mpendulo who walked on ahead. She denied this.
 The complainant was asked why she did not shout for help to the people she could hear talking in the kitchen at James’ home. She responded that she did shout but that the Accused produced a knife. It was put to her that there were children playing in the yard near James house where she stood upon arrival and asked why she did not alert them that she was there against her will; she denied that there were any children. It is important to note that in her evidence in chief she did not mention that she raised an alarm by shouting. She states that after shouting the Accused produced a knife and threatened her with it. The Accused through cross-examination and in evidence denied that he produced a knife with which he threatened her. When asked why she did not bolt for it between 9.00 p.m. and 1.00 a.m. She replied that she was afraid of the knife and the door was locked.
 She conceded that the Accused woke her up at about 1.00 a.m. and informed her that her parents were looking for her. It was put to her that her response was that she wished to sleep awhile longer but denied saying this. When the Accused and Mpendulo accompanied her home and Mpendulo asked her what she would say to her parents she responded that she was old enough to know what she would tell them. She denied this and said she had responded that she would tell her parents where she had been.
 Gabsile Gamedze (PW3) gave evidence that she recalled the events of the 16/6/2006. She attended the same primary school as the complainant and on this day she too had attended the sports tournament. When she gave evidence she was 20 years old; she was 16 years on the 16/6/2006. She was in Grade 6. When the soccer ended she went to urinate in the company of the complainant and Phephile (PW4). She stated that there were some boys near where they urinated. While she was walking along she looked back and saw that the complainant was held by the Accused. The Accused was in the company of Mpendulo Ndlangamandla and James Dlamini. The complainant did not look like she was happy being with the boys. When PW3 had finished urinating she returned to the sports ground and when the match ended she went home. She did not observe anything more because the complainant was standing with the Accused someone they all knew in the area. PW3 confirmed that there were elderly people at the sports ground but she did not report to anyone that she had left the complainant with the Accused; PW3 reported to her mother when she got home that PW1 was not happy. She was asked by Miss Hlophe why she did not report to anyone when she had left the complainant unhappy. She replied: “because it was someone whom we know and he is known in the local area”. Asked if to her knowledge the Accused and the complainant were in love she replied that she did not know.
 PW3 when cross-examined revealed that she and PW4 relieved themselves in a pit latrine and that it was correct that there were no toilets as the complainant had stated. PW3 further stated that had the complainant raised an alarm she would have been heard at the sports ground as there were many elderly people who were watching the match as well as students.
 Siphephile Ndlangamandla (PW4) also attended the same primary school as the complainant and PW3 during June 2006. She too was 20 years old when she gave evidence; she was 16 years old on the 16/6/2006. She was in Grade 6. She too attended the sports tournament on the 16/6/2006. When the soccer had finished she together with PW1 and PW3 went to urinate in a forest went to urinate in a forest. When they returned they saw the Accused, Mpendulo Ndlangamandla and Mfanzile Mavuso. Mfanzile and Mpendulo held the complainant and she shouted hey! The witness was then called by James her boyfriend while Gabsile moved away. PW4 later left to board her transport and left PW1 still being held by the Accused’s two friends. She too testified that there were many people about eighteen metres away from where PW1 was held up. She testified that after shouting hey! PW1 kept quiet. Before PW3 left she looked at PW1 who looked disinterested; PW3 did not report to anyone as she believed that the boys would let PW1 go. PW3 stated that she did not know whether the complainant and the Accused were in love.
 PW4 admitted during cross-examination that she and James were in love.
 PW5, Idah Dlamini the natural mother to the complainant testified that on the morning of the 16/6/2006, the complainant left for school as there was a soccer match; she did not return. When she inquired of one of PW1’s school mates she received a report which ultimately led her soliciting assistance from the chief’s runner to approach the Accused home; but the Accused was not at home. She went looking for the Accused at various homes of the Accused relations but did not find him. Because it was late she returned home and along the way met some boys including James Dlamini. She informed him that she was looking for PW1 and threatened to go to the police. PW1 returned home at about 1.00 a.m.
 When the complainant entered into the house PW5 posed some questions to her. The following is an except of what took place:
 PW5 further testified that the following morning she together with the complainant went to the home of the Accused in order to discuss the issue of whether the Accused and the complainant were in love but the Accused was not at home. PW5 spoke to his parents who requested her not to report the matter until it had been discussed; but they never came. She then decided to report the matter to the police, she went with the complainant to make a report. She informed her husband but he did not say much as she had already reported the matter to the police. Instead they talked about the matter of the Accused entering the complainant’s hut at night.
 When PW5 was cross-examined she disclosed that her husband paid a visit to the Accused’s parents in order to get both the Accused, the complainant and their parents to discuss the issue whether they were in love or not as the complainant had denied everything. PW5’s husband also wished to discuss the issue of the Accused visiting the complainant at night; because when asked about it the complainant had said that she did not know. PW5 seemed upset that the discussions never took place. When asked whether the complainant had informed her that the Accused had proposed to her; PW5 agreed. She stated that the complainant upon returning from her night at James’s hut had informed her that the Accused had earlier proposed to her while she was at a Mkhaliphi’s home attending a lobola ceremony; but that she had refused his proposal. She further stated that the complainant was responding to questions put to her by PW5.
 PW5 admitted that she was angry when the complainant arrived at 1.00 a.m; and that is why she plied her with many questions. She stated that even though she was angry at the complainant she was not so angry as to shout at her. She spoke to PW1 nicely and did not threaten to assault her. She stated that she began to believe the complainant’s version of the story because when they had gone to the Accused’s home he was not at home because he had run away when he heard that the complainant’s parents had come to talk with him and his parents about the matter.
 Further cross-examination of PW5 revealed that the complainant had told her mother that when she left the sports ground for James home she was forced to walk by being pushed from behind. She did not tell her mother that she walked freely. She did not tell her mother that she had spent ten minutes in the shade of a tree talking alone with the Accused. When her mother asked why she did not raise an alarm after PW1 had gone to relieve herself, PW1 informed her that the people at the sports ground would not have heard her as they were far. When Mr. Simelane informed PW5 that evidence had been led which showed that the sports ground was only 18 metres away she disagreed with Mr. Simelane.
 When PW5 was asked if the complainant had informed her that there were people talking in the kitchen when PW1 arrived at James’s house; PW1 could have raised an alarm, PW5 responded that the complainant had told her that she had tried to go these people but that the Accused had dragged her away and threatened to assault her; he threatened her with a knife which he was carrying.
 The Accused was arrested on the 17 June 2006 and charged with the crime of rape it being alleged that he raped PW1 by 4123 Detective Constable M. Mathunjwa (PW6). It was PW6 who took the complainant to the Health Centre at Sithobelweni where she was examined by Dr. Phiri (PW2). When PW6 testified he merely gave the general aspects of the matter viz. that the complainant informed him that she had been forcefully removed by the Accused from the sports ground and taken to James Dlamini’s home where the Accused raped her twice. She revealed that the Accused had a knife.
 He revealed during cross-examination that the complainant had informed that she was taken at knife point from the sports ground and the Accused threatened to stab her along the way with it. It did not occur t PW6 to ask for the knife in order to produce it as an exhibit.
 PW2, Dr. Phiri testified that on the 17th June 2006 he examined the complainant and completed Form RSP 88, the police medical report (Exhibit A). he presented his findings to be that the complainant was menstruating; having started the previous day. She had bruises on both thighs and on the labia majora and minora. Her hymen was destroyed. She had not been sexually active; he was able to determine this by examining her. He could only insert one finger in her vagina and the examination was painful for her. He informed the court that had she been sexually active he would have been able to insert more than one finger; the norm being two fingers. He found remnants of her destroyed vagina and this would not have been the case had she been sexually active. He informed the court that the use of the fingers is referred to as digital examination and this method determined the level of penetrative sex. If two fingers can be inserted there is no pain then the person is deemed to be sexually active. She was clinically depressed but PW2 conceded that this may have been caused by other factors such as her parents anger towards her other than sexual activity. The Crown closed its case.
 DW1, Phumlani Mavuso next took the witness stand. He testified that he resided at Sithobelweni and that the complainant and he had a relationship during 2006 and that as on the 16 June 2006, she was his girlfriend. He had proposed love to her on two occasions. The first occasion they both were from church. The second time was on Good Friday and at a Mkhaliphi homestead where a lobola ceremony was taking place. Because she was busy with some chores they agreed to meet and talk later. Later on he walked the complainant home and he repeated his proposal and she accepted. He met her again on another day he had gone to her home with Mpendulo and he sent Mpendulo to go in and call her; but she never came. Seeing that it was getting late and she was not coming, the Accused and Mpendulo went to the hut that the complainant slept in. then Accused went in to the room while Mpendulo kept guard outside the door.
 The complainant asked who had come in and he replied that it was he. She did not raise an alarm. He spoke with her and asked why she had not come when he sent Mpendulo to call her; she replied that it was because she was busy. The Accused told her that he wished to meet with her. She agreed and told him she could meet him on a Saturday at 12.00 p.m. as she would have finished her chores by then. He left with Mpendulo.
 On the Saturday he waited for her at the appointed place but she did not show. He went to her home and finding nobody there he returned to his home. He next saw her at the school games at Sithobelweni on the 16/6/2006. The Accused was with Mpendulo, Mfanzile Mavuso and James Dlamini. When the last game was about to end the Accused asked Mpendulo to send his sister to go and tell the complainant that he wished to see her. When she arrived he held her by the hand and walked with her to the shade of a tree where they talked for about 10 minutes. Also in the shade of the tree were Mfanzile, Mpendulo and James who were standing next to the school fence not far away.
 The Accused asked the complainant to visit him at his home but she responded that she could not do so as her brother a soldier and of whom she was afraid was at home. He persuaded her to visit him and she agreed. They walked to James’s home together with Mfanzile and Mpendulo. They first took a road thereafter a footpath because the complainant was afraid that they might meet her brother on the road. They took a footpath which bypasses some homesteads. The homesteads were about 6 metres and some 13 metres from the footpath. The complainant walked ahead of him.