THE COURT OF APPEAL OF SWAZILAND
the matter between:
JOHANNES DLAMTNI APPELLANT
: LEON J.P
the Appellant : In person
the Respondent : Mrs Wamala
appellant was charged with rape but was convicted of assault with
intent to rape and was sentenced to 5 years imprisonment. He has
appealed against both conviction and sentence.
evidence against him is to the effect that he entered the room where
the complainant was asleep, that he lay behind her, inserted his
penis between her thighs and ejaculated.
is his niece and she was only 7 years old at the time. He is a man in
complainant woke up when the appellant was thrusting between"
her thighs and he put his hand over her mouth to stifle any screams.
When he removed his hand however, she cried out and her cries
attracted her grandmother who came from elsewhere in the house in
time to see the appellant leaving the child's room.
complainant was in tears and her grandmother, who is the appellant's
stepmother, asked the child why she was crying. The complainant told
her that the appellant had put his penis between her thighs while she
was sleeping. The grandmother berated the appellant in a raised voice
and the sound of her scolding was heard by a brother of the appellant
who came to the complainants' room to ascertain what the commotion
grandmother examined the complainant and said that she saw a white
discharge that looked like semen on her thighs, which she wiped clean
with a cloth. She also saw what appeared to be semen on the sheet on
which the complainant had been sleeping.
appellant's brother corroborated the evidence of the grandmother and
he also saw the white discharge on the complainant's thighs.
appellant chose to testify but directed his evidence almost entirely
to the circumstances of his arrest. He was unrepresented and was
informed by the learned trial judge that it was important for him to
deal in his evidence with the testimony of the complainant, his
step-mother and his brother, but all he had to say about this
evidence was that he had not sexually abused the complainant. In
addressing us the appellant's only submission with regard to the
merits was that all the evidence against him has been fabricated by
his step-mother. He has offered no reason as to why she would wish to
do such a thing and I have no hesitation in dismissing his contention
my view the trial court correctly held that the evidence led by the
Crown proved beyond a reasonable doubt that the appellant assaulted
the complainant in the manner she described.
do not consider however that the evidence establishes an intention on
the part of the appellant to penetrate the complainant, and Mrs
Wamala for the Crown, felt unable to support the conviction of
assault with intent to rape. She agreed that the appropriate verdict
should have been one of guilty of indecent assault. That, in my view,
is correct, and the conviction of assault with intent to rape is
accordingly set aside and is substituted by a verdict of guilty of
regard to sentence, the appellant's only submission, other than to
complain that he should not have been sentenced at all because he
contends that he is innocent of any offence, was to urge us to
backdate his sentence to the date of his arrest in September 2002.
to passing sentence in September 2004 the learned trial judge
expressly asked the appellant when he was arrested, and was told the
date of his arrest. Immediately thereafter, with that information
fresh in his mind, the trial judge passed the sentence of 5 years. It
cannot be contended therefore that the time that the appellant had
spent in custody while awaiting trial was overlooked when sentence
the conviction has been altered to one of indecent assault I do not
consider that a sentence of 5 years imprisonment, not backdated, so
that the effective period of incarceration is 7years, is one that
should be reduced. The nature of this indecent assault on so young a
child is seriously reprehensible and is the kind of crime that has
become disturbingly prevalent.
the appeal against sentence is dismissed.
on the.23rd day of November 2004