IN THE HIGH COURT OF ESWATINI
Held at Mbabane Case No.: 393/2013
In the matter between
MAGIYA VUSUMUZI DLAMINI
Neutral Citation: Rex Vs Magiya Vusimuzi Dlamini (315/2012)  SZHC 210 (11ht November 2019)
Coram: Hlophe J.
For the Crown: Mr S. Mdluli
For the Respondent: In Person
Dates Heard: 26/03/2019, 10/04/2019, 07/08/2019, 08/08/2019 19/09/2019, 22/10/2019, 24/10/2019
Date Judgement Delivered: 11th November 2019
Criminal Law – Accused charged with Rape and Attempted Rape – Necessary elements for rape to be said to be proved – Identity of the accused – Fact of Sexual intercourse – Lack of consent – Attempted Rape when proved – Whether offences proved against the accused.
 The accused stands charged with two counts of rape together with one of attempted rape. The incidents of rape are alleged to have occurred on two occasions at KaNdinda area in the Manzini District while that of attempted rape is said to have occurred once at the same area.
 The accused is a biological father to the complainant who is alleged to have been between 12 and 13 years at the time and was attending grade 4 at Mphini Primary School.
 In an attempt to prove its case, the crown led four witnesses in all. These were PW1 Thab’sile Maria Shongwe, PW2 Thandazile Mtsetfwa, PW3 Tetfulelo Tandzile Dlamini (the complainant) and PW4, 3419 Assistant Inspector Nontobeko Teresa Vilakati. The Defence on the other hand led two witnesses, namely DW1 Magiya Vusumuzi Dlamini (the accused) and Canaan Elias Shongwe. Owing to what transpired during the hearing of the matter, this court called the accused’s biological mother (the paternal grandmother of the complainant) who was introduced and treated as a witness of the Court.
 The evidence before me revealed the following facts in the crown’s case. According to PW1, Thab’sile Shongwe, who was at the time the class teacher to the complainant, Tetfulelo Tandzile Dlamini, on a certain day she was teaching her students on a topic covered under social studies to the effect that “a relative can be an animal or an enemy.” It was during the discussion of that topic that she ended up warning the students about matters of abuse which could be suffered in the hands of relatives. PW1 says that the following day one of her students wrote her a letter which read as follows:-
“Dear Mrs Shongwe
Sawubona ye Mrs. Nginenkinga ngiko ngingaketi nga 7.00AM. lenkinga ingivelela ekhaya babe utsi angadla bese sewufuna kulalanami. Manje mine ngiyahlukubeteka.
Ngibhala lencwadzi ngobe ngiyesaba kukutjela ngalendzaba yami. Sengize ngiyehla nasetifundvweni. Manje mine ngulokutsi Make angihlalinaye. Nginenkinga kakhulu ngaloku. Ngihle ngihamba ngingakadli. Nanyalo ngiyagula.
Tandzile Tetfulelo Dlamini
 In a nutshell, the complainant who was at the time a girl of twelve years, was informing her teacher about her predicament at home where she was alleging that her father was abusing her sexually particularly when he came home drunk; something that had had so negative an effect that her performance had since dropped. She was apparently asking for her intervention and help. She clarified that she could not tell her verbally because she was afraid or embarrassed to do so.
 The teacher in question told court that she informed her superior in the form of her senior colleague to whom she handed over the matter. She only heard that the headteacher eventually got involved when the matter was taken further.
 According to PW2, Thandazile Mtsetfwa, the mother of the complainant, sometime in 2012 she was confronted by the complainant who told her that her father had raped her during her mother’s absence from home. This was at the time she was at work in Malkerns where she used to stay in order to be closer to her place of work. She said she confronted her husband the accused who denied having had sexual intercourse with PW3. He instead alleged that he had seen her playing sex games with one Skhumbuzo Dlamini, who was her age mate and was fathered by the accused’s elder brother. Although she did not report the incident to the Police, she clarified that she did report it to her mother in law, the biological mother to the accused, who she also asked to look after the complainant and to in fact ensure that she spent nights with her at her homestead to avoid the accused.
 PW2 said that she was later informed by her mother in law that the accused arrives late at night and demands that the children, who included the complainant be released to him. Her mother in law, who had obviously become uncomfortable with the accused behavior, suggested that she takes complainant to her biological mother (the maternal grandmother to complainant), to stay there so that she avoids contact with him. This was implemented but on a certain day after she had asked her mother to allow complainant to go to the accused’s home to fetch a goose she had purchased which needed to be taken to her mother’s place. The complainant reported to her that when she got there, the accused grabbed her and had forced sexual intercourse with her. She said she reported this incident to her biological mother (the complainant’s maternal grandmother).
 It was against this background that she was called to the Malkerns Police station on a certain day for a discussion. Upon arrival, she said she found her daughter, the complainant and the headteacher of her school, there. The complaint her daughter had made to her teacher in writing was relayed to her, prompting her to confirm to the police that indeed the child had twice reported incidents of her being raped by her father. She, PW2, and her daughter PW3, Tetfulelo Tandzile Dlamini, were taken to Mankayane Government Hospital for examination. The Doctor who attended the complainant prepared a certain Report thereafter.
 She also testified that she recalled an incident which occurred after the birth of her youngest child. On this day, which was months after her daughter’s examination by the Doctor at Mankayane Government Hospital, she had gone to her home at Kandinda where the accused stayed. She had recalled the complainant from her biological mother’s place to join her at her marital home because she believed nothing would befall her in her presence. Owing to the fact that she had a new born baby at the time, and the fact that there was only one double bed in a two roomed flat, where only one such room was used as a bedroom, she had decided that the accused and their two sons were going to share the bed whilst she, Tandzile and the new born, were going to sleep on a mat on the floor. It was in the early hours of the morning that whilst asleep, she was alerted by Tetfulelo of the accused’s presence inside her blanket. Tetfulelo extended her hand to her and shook her as she drew her attention to what was happening. The accused was allegedly trying to undress or remove Tetfulelo’s panties while he was himself naked.
 She woke up and asked him what he was doing there and he allegedly said that he had lost his way as he had meant to go out. She said this infuriated her so much that she told the accused that she was leaving for good because of what he was doing, trying to rape her daughter in her presence. She indeed left their matrimonial home that day, went to inform the accused’s biological mother about what had just happened and that she was as a result leaving that homestead for good.
 PW3, the complainant, Tandzile Tetfulelo Dlamini, corroborated the evidence by her teacher on how she reported her predicament of sexual abuse in the hands of her own father. She testified how she had, after attending a class for Social Studies conducted by her teacher, which had the effect of cautioning students about incidents of abuse at the hands of relatives, she had decided to write to her teacher and inform him about her situation. She further testified about how she had been taken to the Malkerns Police Station and subsequently to the Mankayane Hospital where she was examined by a Doctor who subsequently prepared a report and confirmed that she had been penetrated sexually at some point. She said she had actually been raped twice by her father.
 Clarifying how the First rape ordeal had occurred she testified, that sometime during the second term of 2012, she had been called by her father who told her to come and take her mother’s place next to him on the bed. Although she said she had refused to do that, the accused had grabbed her, undressed her and went on to have sexual intercourse with her without her consent. This sexual activity had resulted in her being hurt as she had had to bleed. He warned her not to inform anyone about that, threatening to kill her if she ever did.
 In the following morning she said she had reported that ordeal to her paternal grandmother who did not do anything about it. She had also called her mother who responded by arranging with her paternal grandmother that she be allowed to spend the night with her so as to avoid her father at night. Despite this arrangement she said that her father would arrive late at night drunk and insisted that she and the other children go to his homestead with him. This happened over many times whereafter he would make overtimes to her but she would refuse. She talked of one particular incident where her father tried to undress her such that they literally had to fight over her pants as she held tight to them as he tried to undress her, resulting in the zip to her pants being torn. After reporting this incident to her mother, she removed her from her paternal granny’s place and took her to her maternal granny’s place to reside there.
 Although she enjoyed a respite after that arrangement she said she was to later experience the second sexual ordeal. On that particular day she had been sent by her mother to telephonically go to her father’s homestead and thereat to take her goose (bird) to her granny’s place where she was staying. This was during the year 2013. She had found her father at home who she said asked her to perform with her the same sexual act they had previously embarked upon. Although she had refused to do so, he had over powered her, undressed her and again inserted his manhood into her private part. She immediately reported this incident to her mother who confronted him about same.
 It was over these incidents that she had decided to report to her teacher by means of the letter she wrote referred to above, which triggered the eventual charges faced by the accused, after she had been taken to Mankayane hospital for examination, although she was not arrested immediately thereafter.
 The incident forming the basis of the attempted rape, occurred sometime after she had reported her ordeal to her school teacher in terms of the letter she had written to her. On this particular incident, her mother had visited her marital home with all her children, including a new born baby, Nkosensha. Given that they were using one room of the two roomed house they had as a bedroom, her mother had decided that because of her new born baby, she was going to spend the night on the floor with Tetfulelo Tandzile and the newborn, by sleeping there. The accused meanwhile was to spend the night on the double bed with the male children. It was in the wee hours of the morning that she testified about her waking and finding his naked father, the accused, having entered her blankets such that he started undressing her as he obviously wanted to have sexual intercourse with her. She had alerted her mother about what was happening to her.
 The complainant’s mother woke up and immediately enquired from the accused what he was doing and he had lied saying that he had lost his way from the toilet. Her mother woke up that morning and called her relatives and informed them she was leaving that home, because the accused was not respecting her as he was now trying to have sexual intercourse with her own child in her presence.
 It was this incident that resulted in PW2, calling all children with her and pay her goodbyes to her mother in law, explaining to her how the accused had, in her presence, attempted to have sexual intercourse with Tetfulelo Tandzile Dlamini.
 It transpired from the evidence later that it was as a result of this incident that her maternal grandmother informed the community police who reported instantly and took the accused to the Malkerns Police where he was arrested and charged with the incidents of rape referred to above to including that of attempted rape.
 The accused cross – examined the complainant’s mother at length. Among the questions she put to her was that about who the father of her youngest child was. This was the child referred to as the new born at the time the alleged attempted rape occurred. This Court was taken aback with this question whose answer shocked it even more. PW3, stated that the child concerned was not fathered by the accused, although she had initially made him believe the child was his. It came out this had been disclosed to him whilst he was in custody where it was never disputed he had spent some five or so years before he was released on bail.
 This answer brought about all sorts of suspicions including that the accused could be a victim of deceit about having raped the complainant. In fact her credibility was shaken a great deal. In the accused had portrayed himself as a victim of a sustained scheme to portray as a rapist. In order to ensure he was removed from society for a longtime.
 The Investigating Officer testified on what her role was in the matter. She narrated the events from the time she received the headteacher of Emphini Primary School who was in the company of the Complainant. These two had reported about how the complainant had written a letter informing her teacher that she was being abused sexually by her father whenever he came back drunk in the evenings. She had also revealed that he had already had sexual intercourse with her on two occasions without her consent from what she was informed. This witness testified as well on how she took the Complainant and her mother for medical examination at the Mankayane Hospital. She revealed further that the Doctor concerned had also prepared a report in terms of which he confirmed that the child had sexual intercourse in the past because her hymen had been torn even though she had healed at that point. She told court how she had repeatedly failed to effect an arrest on the accused notwithstanding her numerous attempts to do so. She would not find eminent his place. Even after the attempted rape incident had been reported, she had not been able to effect on arrest which was only done by the community police following a report made by the accused’s own mother.
 The Medical Report as prepared by the Doctor who examined the complainant was handed into Court in terms of Section 223 bis of the Criminal Procedure and Evidence Act of 1938 as amended. This was because the Doctor who had carried out the examination was an expatuate who had left the country and could not be reached for him to testify. The section in question allows the handing into court of such a report for it to be considered as evidence. The significance of the said report in this matter is when it confirms on its remarks position that the complainant was examined by the Doctor who concluded that although she had healed as of that time; she had previously been penetrated sexually given that her hymen had been torn.
 In his defence, the accused close to give sworn evidence after his right as triggered by the closure of the crown’s case were explained to him. In his testimony the accused denied having had sexually intercourse with his daughter Tandzile Tetfulelo Dlamini at any point. He attributed the discovery by the doctor who examined the complainant to an incident where she was found in a compromising position with her cousin Skhumbuzo Dlamini, whilst they were playing home situations as the husband and wife of that homestead. Ofcourse this assertion had been disputed by the crown witnesses who denied any such incident between Skhumbuzo and the complainant. PW3 and 4 saw the incident as an attempt by the accused to evade accounting for his own conduct.
 The accused further attributed the whole allegations against him to a scheme against him at the hands of his wife who he contended had fabricated the story too ensure that she avoided accounting for the child born out of wedlock after she was impregnated by another man as opposed to her husband. He wanted the court to believe that the complainant had made the story at the instance of her mother. After I had suggested that I would have to call his biological mother as the first person who was allegedly reported to by the complainant and PW2, he was quick to suggest that there was bad blood between him and his mother. He however could not clarify why his own biological mother had an issue with him.
 Whilst he denied any incident of him having had sexual intercourse with Tandzile, he tried to explain the incident when he was found inside Tandzile’s blanket when he allegedly tried to remove her panties. While he denied trying to remove her panties, he explained that he never entered underneath her blanket but that he was trying to engage his wife to ascertain whether or not his mother was aware of his unavailability that weekend. He undertook to bring one witness who was going to testify that he had not been home that weekend and therefore could not have communicated the alleged offence. This witness, he said, was one Canaan Elias Shongwe.
 When this witness was eventually called he denied having been with the accused on the day alleged and could not confirm that the accused had not been home that weekend. The accused ended up trying to explain that his own witness was not understanding because he was scared. This is because it was clear that the witness was not helping his cause.
 Owing to the allegations made by the accused’s wife and the complainant, that his mother had been informed about the complainant’s alleged abuse in at the hands of the accused which had at some point resulted in the children, particularly Tandzile, being caused to spend nights at her paternal granny’s place, I directed that she be called as a witness.
 When eventually called, the accused’s mother who introduced herself as Ken Maria Dlamini, confirmed that one day Tandzile’s mother had brought her to her so that she spends the nights with her at home from her father’s nearby home. Tandizile’s father was her biological son while her mother was her daughter in law. She said that she did not enquire from her why she was being asked to keep watch over Tandzile at night. She only suspected this because she noted that her son, the accused would when he came back drunk at night call at her house and demand that Tandzile and the other children be released to him. She said that it was because that prompted her to call her daughter in law, who was at work at Malkerns and informed her that the accused was in the habit of arriving late at night and demand to take away Tandzile with her who would only be returned very late in the night. Otherwise she claimed not to have been told directly by eating the complainant’s mother or tell about the abuse allegedly suffered by PW3 at the hands of her father, the accused.
 Her suspicious aforesaid she said resulted in her advising her daughter in law PW, that she better take Tandzile to her own maternal home so that her maternal grandmother keeps watch over her because she was not happy with the accused’s conduct.
 By way of comment I must say that, I find it strange that the accused’s mother, (Tandzile’s paternal granny) would accept without question the dontry being thrust on her of keeping watch over Tandzile at night, if she had not been explained to her that the reason for this was because the child was being sexually abused by the accused. I find that she is deliberately suppressing this because one she is a biological mother to a person being accused of having committed such embarrassing crime on her daughter which qualified him for some 15 years or so in imprisonment. I also find that she was not eager to own up to this because she fears being arrested and taken into custody herself for failure to action the complainant’s complaint. I will therefore find that the accused’s mother, had been informed about Tetfulelo’s predicament which is why she suggested she be taken to stay with her maternal grandmother.
 When the accused tried to discredit his mother by saying she was implicating him because of a bad relationship between the two of them, she disputed that emphatically and enquired if her paying for him the amount of E1500.00 to obtain bail would be consistant with her having an issue with him as he was then alleging. I must say for my phone that I am convinced that there was never any bad blood between the accused and his mother. I further find that the accused had indeed had sexual intercourse with Tetfulelo Tandzile Dlamini on the alleged occasions and that he was confronted with same by Tandzile’s mother after she had been alerted thereto by Tetfulelo Tandzile Dlamini.
 The position of our law is settled by now that for the crown to prove that there had been rape, it needs to prove the identity of the accused, sexual intercourse as a fact and the lack of consent. See in this regard the case of Mbuso Blue Khumalo V Rex, Criminal Appeal Case No. 12 of 2012.
 In the present matter, the identity of the accused is not in issue. He was well known to the complainant as her father. The incidents cited by her had happened in the open after some alleged discussions between the accused and her daughter Tetfulelo Tandzile Dlamini. I am convinced that this element has been proved beyond a reasonable doubt. See in this regard Rex Vs Nkosingiphile Zwane High Court Case No: 29/16  SZHC 77 and the judgements referred to therein.
 As regards the element of proving sexual intercourse beyond a reasonable doubt, the Medical Practitioner confirmed after having been asked to examine the complainant, that there had been penetration even though it happened sometime back. These circumstances of this element are consistant with what the story by the accused. When she reported to her teacher both incidents of rape had already lapsed. Furtherstill the complainant had reported these incidents to her mother and to her grandmother just as I have found in my evaluation of the evidence. See the case of Rex Vs Sicelo Dlamini (34/16)  SZHC10 (4 December 2016) and that of Nkosinathi Sibandze Vs Rex, Supreme Court case no:31/14.
 I would mention in passing that so settled is this position that in proving sexual intercourse as a fact, the slightest entry of the male organ into the woman’s private part (the vagina) sexual intercourse would have been established and by extension rape would have been proved. This position is so established that the hymen itself need not be torn. In this matter, hymen was torn which therefore puts it beyond doubt. See PMA Hunt’s book, The South African Criminal Law and Procedure, 2nd Edition, Juta and Company, 1982 at page 440.
 With regards the lack of consent as one of the elements that needed to be proved, it is clear from the facts that this is shown to be proved in two ways at least. At first, the complainant who was in my view a credible witness told court that when he first tried to persuade her to have sexual intercourse with her (that is to take her mother’s place on the bed as it was put) she refused. Her refusal however did not deter him as he then forced himself on her, undressed her and went on to have sexual intercourse with her. This was forced sexual intercourse which is indicative of the lack of consent.
 This position is worsened by the fact that the complainant has been shown to have been a child of 12 years in 2012 and 13 years in 2013. The common law position is that a girl of less than 14 years cannot consent. In instances where she can be shown to have consented, our law takes it that she cannot consent and as such sexual intercourse with such a person is rape. Now that it has been shown that there was sexual intercourse committed on the complainant by the accused when she was still below the consenting age, there should not be a doubt that sexual intercourse with her was rape. See in this regard the cases of Rex Vs Mgcineni Mamba, High Court criminal trial no:217/07 and that of Rex Vs Justice Magagula Criminal Case No.330/03.
 It cannot possibly be disputed that from the facts of the matter, it has been shown beyond a reasonable doubt that the complainant was raped by the accused. Consequently I have come to the conclusion that it has been proved beyond a reasonable doubt that the accused raped the complainant.
 The second count was for attempted rape after it was alleged that the accused had attempted to rape the complainant on the night preceding the day on which the accused was arrested. The facts showed that the accused was found inside the blanket covering the complainant whereupon he was trying to undress Tetfulelo Tandzile Dlamini. Two witnesses, who I have already found to be credible corroborated each other in this regard. Tandzile, upon being woken by the conduct of the accused who was trying to undress her, thus forcing her to hold tight on her pants, drew the attention of her mother to what was happening.
 For there to be found that there was an attempt the position of our law is that the accused must have gone beyond mere preparation. In other words this conclusion can be drawn once it is shown that there had been the end of the beginning and was at the beginning of the end.
 From my observation of the unequivocal facts, I am rather skeptical to conclude that the accused had gone beyond mere preparation if he had not even managed to undress her. What is undeniable though is that as he was trying to undress her, he was doing so in an indecent manner. Accordingly I am of the view that the facts established an indecent assault as opposed to an attempted rape. It is not difficult in such a scenario to find the accused guilty of indecent assault which according to Section 185(2) is a competent to a charge of attempted rape.
 I am convinced that the facts of the matter show that whilst the accused person may not be guilty of attempted rape, he cannot however escape being found guilty of indecent assault.
 Taking into account the foregoing facts. I have come to the conclusion that the accused be and is hereby convicted of
45.1. Rape of the complainant on the two instances established by the evidence.
45.2. Indecent assault of the complainant as he, whilst naked, tried to undress her as he found her inside her blankets.
N. J. HLOPHE
JUDGE – HIGH COURT