THE HIGH COURT OF SWAZILAND
the matter between:
: SAPIRE ACJ
APPELLANT : IN PERSON
CROWN : MR. NSIBANDE
appellant Joseph Khoza was charged with the crime of housebreaking
with intent to commit rape.
allegation being that on the 20th July 1994 at or near Nkhaba area in
the Hhohho region he unlawfully and with Intent to commit rape broke
and entered the house of one Ncamsile Dlamini and intentionally had
unlawful sexual intercourse with Ncamsile Dlamini an adult without
her consent and thereby committed rape.
the appellant was called upon to plead, he stated and I quote:
cannot recall whether I did or did not commit the offence alleged;'
and the Learned Magistrate entered a plea of guilty.
the complainant Ncamsile Dlamini stated that on the 20th July 1994
she was asleep at her house when she heard a bang at the door and
somebody forced his way in and grab hold of her by the shoulders. She
could see an object similar to a knife this person was carrying. He
took her out of the house into a half-finished house and had sexual
intercourse with her there. After having had sexual intercourse with
the complainant the person then said he was feeling cold and asked
that they go back and he also wanted money from her. She told him
that she only had E4 which the person took. The stranger then asked
the complainant to go out with him and they went out and the stranger
said he had a companion who had since gone away. He then suggested to
the complainant that they went back into the complainant's room where
he continued to have sexual intercourse without her consent. The
stranger then asked for some matches which the complainant provided
and he wanted to know what time it was. PW1 stated that she was not
in a position to identify the person but he was wearing a woollen cap
and spoke in some broken bit of Zulu and was not fluent in that
language. The stranger left and promised to come back and give her
some goodies if she did not report the matter.
he had left the complainant went to make a report of what had
happened to her to PW2 one Elizabeth Sikhondze. According to
Sikhondze she was crying. I must point out that the evidence of PW2
is not for purposes of corroboration but for
of consistency that the report she made was consistent with her
there was PW3 Jeremiah Mhlanga who was an 'indvuna' of the area and
kept order there. He stated that he knew the accused and he had been
doing some lose jobs at his place. According to him on the 21st July
1994, this could be an error because it could not have been 21st, the
accused had disappeared at home from 6pm and at 10pm he became
anxious what could have happened to him. A child had been sent to
give him some food but could not find him.
looked for the accused and traced him and asked him where he had been
The accused first said he had been at a place called Ejubukweni. He
subsequently said he could take this witness to the place where he
had spent a night with a woman LaDlamini. The appellant took the
witness to the same homestead of PW1 and showed him a half-built
structure and said that is where he had sexual intercourse with a
woman. This is the evidence which is corroborative of the evidence of
had not known about this but in the meantime some boys came to inform
him and amongst other things told him what the person had been
wearing on his feet. They traced the spoors which led them to where
the accused resided.
the accused was given the opportunity to cross-examine the witnesses
he never challenged them about this evidence especially the evidence
of PW3 Jeremiah Mhlanga. He was concerned about work he did for Mr.
Mhlanga and whether Mhlanga had paid him the correct amount and
whether he and Mhlanga had gone to cut some logs.
woman was obviously an old woman who had children but there was also
handed-in the certificate by the doctor which indicated that infact
there had been sexual intercourse. The doctor found semen in the
woman's vagina. That was the evidence upon which the Learned
Magistrate had to decide whether or not the accused was guilty.
the accused himself was asked whether he wanted to say something, he
choose to give evidence on oath and all he said was that; 'I want to
tell the court I never committed any rape.' and stated that nobody
was an eyewitness to the alleged crime and that is all he said.
Learned Magistrate had to decide on the evidence before him and I am
satisfied with the evidence which was overwhelming against the
appellant that he was the person who committed the housebreaking with
intent to rape the complainant Ncamsile Dlamini.
can find no misdirection on the part of the Learned
in so far as the conviction is concerned. I would therefore dismiss
the appeal against conviction and confirm the judgment by the Learned
appellant has also complained about the sentence being too harsh,
unreasonable and depressing and causing a sense of shock. There had
been numerous decided cases to the effect that where a weapon is used
in subduing the victim before a commission of rape, the minimum
sentence should be at least 9 years. The aggravating feature of the
appellant's action here was that he had broken into the premises
occupied by the complainant, used a knife and raped her. I can
similarly find no reason to interfere with the sentence passed by the
Learned Magistrate. In the result, I also dismiss the appeal and
confirm the sentence of 8 years which was imposed on the appellant.
M. MATSEBULA S W SAPIRE