THE COURT OF APPEAL OF SWAZILAND
Appeal Case No.733/04
the matter between:
PHUPHUTHA MANANA APPELLANT
THE KING RESPONDENT
: R.N. LEON J.P.
the appellant : In Person
the Crown : A. Makhanya
appellant was convicted of having raped the complainant in her home
in the early morning hours of the 25th of November 2001. He was
sentenced to 15 years imprisonment, backdated to the date on which he
was taken into custody. He has appealed against both conviction and
complainant's evidence is that she was asleep in a bedroom, together
with her 4 month old baby and her 11 year old brother, when a man
burst through the door which had a faulty lock at about 2 am. She
turned up the wick of the lamp to see a stranger carrying what she
described as a "bolted stick". He produced a knife, grasped
her by the
pressed her down on the bed and told her to undress. She resisted. He
then cut off her blue panty with his knife and raped her three times,
and would have done so a fourth time but found himself unable to. She
thereupon asked to leave the room on the pretext of wanting to fetch
food for her baby, but he followed her to another room where she
picked up a table knife and they grappled. She stabbed him somewhere
above the left shoulder and the knife broke. He then made her wash
the wound she had inflicted on him and told her to wash her private
parts. He said he would kill her if she laid a charge against him. He
then left her, by which time it was about 4.30am and he had been
molesting her for some two and a half hours. She had seen his
features and noticed that he had a rotten tooth, and she also had
taken note of the sandals he was wearing, as well as the bolted stick
that he carried.
evidence was corroborated by her young brother. He confirmed that a
strange man kicked the door in and entered their room He saw the
bolted stick. He heard the man ordering his sister to lie down and he
saw him cut off her panty with a knife. He added that he also saw the
man stuff a tissue into the baby's mouth, and he saw that the man had
a rotten tooth. When the man lay on his sister he was ordered to
cover his head with his blanket and not to look. He said that
eventually his sister went to another room, followed by the man, and
he was unaware of what happened in that room.
the departure of this man the complainant roused her neighbour who
testified that at about 5am. the complainant came to her in tears
bleeding from wounds to her neck and said she had been raped. The
complainant then went to the Police to report the crime.
Police Officer to whom she reported confirmed that the complainant
had injuries to her neck, as well as on her thigh, and she handed him
a torn blue panty. She was able to give him a full description of her
assailant, his teeth and his sandals and a stick he carried. He took
her to the hospital, after which he went with her to her home where
she gave him a broken table knife. Later that day the complainant
recognised the man who had raped her standing among a group of people
and he was arrested. It was the appellant
from his hut the Police recovered a bolted stick, a pair of sandals
and a knife. He had an injury to his neck and he was taken to the
hospital to be examined.
appellant was examined by the same Doctor who had examined the
complainant. The Doctor testified that the appellant had a wound to
the left side of his neck that was compatible with a stab wound.
regard to the complainant the Doctor found abrasions on both sides of
her neck, and three puncture wounds to her left thigh. In the course
of her evidence the complainant had said that her assailant had
injured her thigh with his knife. The Doctor went on to say that her
genital organs bore signs of violent intercourse, the fourchette was
red, there were bacteria and spermatozoa and a foul discharge.
Crown also led evidence of a properly conducted identification parade
at which the complainants' young brother, as well as the complainant
herself, identified the appellant unhesitatingly as the intruder who
had burst into their room.
the complainant and her young brother identified the bolted stick and
the sandals that the Police found in the appellant's hut as the stick
that the intruder had carried and as the sandals that he wore.
his defence the appellant said that it was not he who had entered the
complainant's room and raped her. He conceded that he had a wound to
the side of his neck, but claimed that this had been inflicted by an
acquaintance with a screwdriver. That assertion was not corroborated
by anyone. For the rest of it he said that he was at home for the
whole of the night on which the complainant was raped. He called his
brother to testify on his behalf, but all that the brother could say
was that there was a cleansing ceremony that night at their home
which he did not personally attend because he had to work that night.
When he came home in the morning the appellant was asleep. He could
give no evidence at all as to where the appellant was between 2 and
was done to the complainant that night is not in dispute, and the
only issue is one of identification. The evidence that the appellant
was identified beyond all reasonable doubt as the intruder is utterly
compelling and in my view the trial court has not been shown to have
erred in any respect whatsoever in accepting it as conclusive.
for the sentence, I can find no fault. It was an appallingly bad case
of rape, protracted ad nauseam with violence by an armed assailant in
the presence of a young boy at the dead of night in the home of the
victim. The learned trial judge did not misdirect himself in any way
in passing sentence and it is certainly not a sentence that creates
any sense of shock in the light of the facts of the case.
the appeal is dismissed and the conviction and the sentence are both
IN OPEN COURT ON THIS.26th DAY OF NOVEMBER 2004