HIGH COURT OF SWAZILAND
Case No. 150/2002
S.B. MAPHALALA – J
the Crown MRS S. WAMALWA
the Accused IN PERSON
accused person is charged with the crime of rape. It is alleged by
the Crown that upon or about 22nd February 2001, and at or near
Ludzeludze area in the district of Manzini, the accused did
wrongfully and intentionally have unlawful sexual intercourse with
Zonke Dlamini without her consent, and did thereby commit the crime
Crown further alleges that the rape is accompanied by aggravating
circumstances as envisaged under Section 185 (bis) of the Criminal
Procedure and Evidence Act 1938, in that:
the time of the commission of this offence, complainant was a female
child of eleven (11) years; and 2
the time of the commission of the crime, complainant was a virgin.
Crown furthermore, alleges on the alternative that the accused is
guilty of contravening Section 3 (1) of the Girls and Women's
Protection Act No. 39 of 1920.
accused person is conducting his own defence and has pleaded not
guilty to the charges levelled against him. The Crown is represented
by Mrs. Wamalwa.
summary of the Crown evidence which included that of the complainant,
her employer Zodvwa Maseko, one Zama Khumalo who apprehended accused
person and the investigating officer 3952 Constable M. Masilela was
to the effect that on the day in question complainant on her way back
to the shop when she was accosted by the accused who grabbed her and
led her to a nearby forest. Accused forced the complainant into a
field where he forced her to have sexual intercourse with him. When
accused had finished having sexual intercourse with her the accused
ordered her to proceed home while he fled into the bush. The
complainant reported the matter at home to her employer PW2 Zodvwa
Maseko. PW2 related to the court that PW1 (complainant) was her maid.
On the 22nd February 2001, she sent her to a shop. PW1 went to the
shop but came home crying. PW1 reported that she had been raped and
she saw that complainant was wet with semen on the dress she was
wearing. The complainant had thoms on her head and her dress was
soiled. The complainant then led her to the scene of crime. She
reported the matter to the police. She also took the complainant to
RFM Hospital for examination.
third Crown witness PW3 Zama Khumalo told the court that he was one
of the people who apprehended the accused person after they were
asked by PW2 to look around for the perpetrator. The witness related
as to how they went about looking for the culprit with others
including one Papa Masangane. He told the court that they questioned
the accused person about the rape of PW1 and the accused person
stated that he was tempted by the devil. Accused took this witness
and other people to the scene of crime. Accused was later handed over
to the police.
3952 Constable Makhosini Maseko related how he went about the
investigations in this case.
his defence the accused person gave a lengthy account under oath. In
essence he denied ever committing this offence and that he does not
even know the complainant.
was contended for the Crown that a case has been proved against the
accused person beyond a reasonable doubt. It was argued that the
evidence of the complainant has been corroborated by the evidence of
PW2 and PW3 in all material respects. On the absence of medical
evidence of penetration the Crown relied on the dicta in the Court of
Appeal case of The King vs Abraham Ngwenya and another Criminal
Appeal Case No. 33/96 (unreported) where the following was stated by
Leon JA (as he then was): and I quote:
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 inevitable 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).
accused on the other hand pointed out a number of contradictions in
the Crown's evidence and contended that at least he was entitled to
the benefit of the doubt.
have considered the evidence adduced before me in toto and the
submissions made for and against a conviction in this case and I have
come to the considered opinion that on the facts the accused person
is entitled to the benefit of the doubt. The absence of the medical
report, in my view has dealt a death knell to the Crown case. In casu
there is no direct and circumstantial evidence, which cumulatively
points in that direction and that direction only as mentioned in
Abraham Ngwenya (supra). The evidence of the "soiled dress"
might have been this evidence in pointing in that direction and that
direction only. However, the dress was not produced by the Crown as
it appears to me that the contradictions in the Crown evidence as
pointed out by the accused person in his submissions put to question
the credibility of the witnesses, more particularly that of the
sum, it would be unsafe to convict the accused on the evidence
presented and therefore I give him the benefit of the doubt.
the result, the accused is found not guilty and is acquitted