THE HIGH COURT OF SWAZILAND
APPEAL CASE NO. 21/94
the matter between:
: A.F.M. THWALA
THE APPELLANT : MR. FINE
THE CROWN : MR. KILUKUMI
appellant was convicted of the crime of rape. The Magistrate
sentenced him to four years imprisonment.
appeal is against conviction. The grounds of appeal are as follows:
the court a quo erred in law in finding that the complainant was
corroborated in all respects in this matter.
the court a quo erred in law and in fact in rejecting the accused's
version, which version might possibly be true.
Crown led that the evidence of Sibongile Lindiwe Shongwe who is step
grandmother of the complainant. She describes how she noticed that
the complainant (Busi Msibi), was not walking in the normal way that
she usually walked. She asked her what happened. She told her that it
happened on a Saturday. She then examined her private parts and
noticed that there was some rash and a discharge.
discharge was pus. She then took the child to the police. From the
police they went to a garage where the appellant worked. When they
came to the garage with the police, the complainant identified the
appellant as the person who raped her. The witness then took the
complainant to hospital where she was examined by the doctor. This is
the brief summary of her step grandmother's evidence.
Crown then led the evidence of Dr. Petros Igor who examined the
complainant. He stated that from his examination he did not see any
sign of assault. She was not a virgin because she had no hymen. She
had a venereal disease i.e. GRICHOMONIASIS. The period was three to
four days. It is an infectious disease. He could not say when
intercourse had taken place. The hymen had healed. He could not say
whether the complainant was raped or not. The doctor said the person
who had intercourse with the complainant must have the infection. He
said the test which can reveal the disease is urine test or secretion
from the prostrate gland if it is chronic.
the course of the trial, the Magistrate in terms of section 342 of
Act 67 of 1938 . granted an order that all necessary steps be taken
for taking necessary specimen from the accused for the analysis for
grichomoniasis. This then became an issue which the Crown was
required to establish in support of its case. It became an important
corroboration of the evidence of the complainant if established. The
Crown also called Nkambule who worked at the garage with the
appellant. He saw the complainant standing outside the garage where
they work. The accused gave the complainant a lift. He did not know
which direction they followed. The time was about 2:00 p.m. He said
appellant came back after 15 minutes. Ivan was in the car when
appellant gave the complainant a lift. The appellant came back with
Ivan. The complainant did not come back with them.
Crown then called the complainant, an 11 year old girl. She described
how she ended arriving at the garage where the appellant works, Her
story is not clear how she went to the garage and what for, but it is
not disputed that she went there as she is supported by the appellant
and Nkululeko. She said it was her first time to see the appellant.
It appears according to the record that the complainant was uneasy or
afraid when she gave her evidence. She continued to tell the court
that appellant, his friend and she took the street towards St.
Theresa. His friend alighted from the car next to a flat near St.
Theresa. Appellant then drove the vehicle via Fairview to Nazarene.
She told the appeallant that she was going to Ngwane Park. The
appellant took the Kakhoza direction and then took the Sidvokodvo
road. He told the complainant that he was going to Ngwane Park.
then described how the appellant raped her near the turn off to
Ngwane Park after he had parked the car under a tree. He gave her El.
He then took her to Ngwane Park. She went home and found her sister
and she did not report. She only reported to her step-grandmother
when she was questioning her how she was walking. She then described
how she identified the appellant.
was then cross-examined by Defence Counsel. She again stated in
answer to Defence Counsel that Ivan alighted at St. Theresa and that
he did not accompany them for the rest of the journey. The witness
started crying and she did not answer Defence Counsel's questions
satisfactory. The person who could clarify or corroborate the
complainant at this stage was Ivan. Ivan could say whether he
accompanied the appellant up to Ngwane Park and came back with him to
the garage as testified by Nkululeko Nkambule. Unfortunately the
Crown did not call him.
Magistrate tried to nurse the complainant but she was afraid or shy
to answer all questions put by the Defence. Although the Magistrate's
judgment is carefully reasoned, it lacks the support of the analyses
of the samples which were ordered by the court to be taken from the
appellant who submitted himself to be examined. The court was of the
opinion that the tests must be carried out to find out if the
appellant could infect the complainant if he had the venereal
appellant could infect the complainant if he had the disease before
the alleged rape or be infected if the complainant had it prior to
the alleged rape. It was for the Crown toput its case beyond doubt
more especially as the complainant is a child to tender age. The name
of Ivan was mentioned by the child and Nkululeko who said appellant
came back to the garage while the child said she was left near St.
Theresa. The Crown had all the time to call Ivan.
find myself in difficulty to confirm the conviction. The complainant
did not answer defence questions satisfactory because she cried most
of the time. The Crown did not take the appellant to be tested for
the venereal disease which became part of the evidence which was
required to corroborate the girl. It also failed to call Ivan to
rebut the evidence of the appellant and Nkululeko that appellant
returned with him to the garage and that he was with him through out
the journey to and fro Ngwane Park.
reluctantly allow the appeal. Conviction and sentence are set aside.