IN THE SUPREME COURT OF SWAZILAND
HELD AT MBABANE APPEAL CASE NO.21/2010
In the matter between
SITHEMBISO SHONGWE APPELLANT
CORAM A.M. EBRAHIM J.A.
DR. S.TWUM J.A.
I.G FARLAM J.A.
Heard : 4 May 2011
Delivered : 31 May 2011
For the appellant In Person
For 1st respondent Ms L. Hlophe
I.G. FARLAM JA:
 I have had the advantage of reading the judgment prepared in this matter by my Brother Ebrahim. I agree with him that the conviction should be altered to one of contravening section 3(1) of the Girls’ and Women’s Protection Act of 1920, and the sentence altered to one of five years imprisonment. In view of the fact, however, that I have arrived at this conclusion by a route which differs in some respects from that set out in his judgment it is necessary for me to state my reasons.
 In my view it is not permissible to have regard to what was said by the appellant in his plea in mitigation in the High Court. In this regard I agree with the ratio decidendi of the decision of the South African Appellate Division in S v Mooi and Another 1990 (1) SACR 592 (A), in which it was held at 610 H that
‘evidence given in extenuation cannot at any stage be relied upon to set aside, vary or substantiate the preceding finding on the guilt of a person on a murder charge. This conclusion, one need hardly add, does not affect the right to apply to lead further evidence in terms of section 316 of the Act [the counterpart in practical terms of section 11 of our Court of Appeal Act 1954].’
 Although as appears from the extract from the judgment quoted the charge in Mooi’s case was one of murder and the evidence given by the appellant on which the State sought to rely was given during the enquiry as to whether extenuating circumstances were present, the ratio also applies, if anything a fortiori , where the evidence is given in mitigation after an accused has been convicted. This was accepted to be the case by the Transvaal Provincial Division in the South African case of S v Van Wyk, 1997 (1) SACR 345 (T) where the court, under protest as it were, followed what it accepted was theratio in Mooi’s case (at 360 F), although it suggested that the matter should be reconsidered in the future from the viewpoint of what the court considered to be ‘gesonde verstand en praktikaliteit’ (common sense and practicality).
 As I have said, I do not agree with this approach. In my view if an admission made by an accused in evidence or submission after conviction can be used without more to bolster an otherwise inadequate Crown case the danger exists that innocent persons will be convicted simply because they lied in a mistaken endeavour to get a lighter sentence.
 The approach adopted in Mooi’s case is sounder because in a case such as this the Crown can apply, even on appeal, to reopen its case to prove the admission made by the accused. The accused will in such a case have the right to give evidence to explain away, if he can, what he has said.
 As far as the facts of this case are concerned I am satisfied, as I have said, that the appellant should have been convicted under the Girls’ and Women’s Protection Act, 1920. It follows that what I have said in paragraphs 2 to 5 above is obiter.
 I agree with my Brother Ebrahim’s criticism of the way the Crown case was presented in the court of first instance and that the magistrate misdirected herself in the ways he sets forth. It follows that this court is constrained to decide the case itself on the record.
 I am of the view that the Crown succeeded in proving that the appellant had intercourse with the complainant on the morning of Sunday, the 29th March 2009. Apart from the complainant’s evidence there was the evidence of her mother, who said that her daughter returned home late that evening, at about 6 p.m. She was asked why she had come late and not washed the dishes or cleaned the house but she failed to reply, although she normally replies to her mother’s questions and cleans the house and washes the clothes and the dishes. The appellant told the complainant’s mother that he would return on the Tuesday but he did not do so; in fact he only returned to Swaziland on the 24th April. He had the complainant’s mother’s mobile telephone with him. She telephoned him twice, after which he turned the telephone off. There was also the medical report by the doctor which indicated that someone had had intercourse with the complainant and that there had been penetration.
 After his rights had been explained to him the appellant elected to make an unsworn statement. Although this statement was part of the evidential material before the court (R v Cele 1959 (1) SA 244 (AD) at 252 F-G) the fact that in deciding to make an unsworn statement the appellant deliberately chose to avoid taking the oath and being subjected to cross examination detracts from the evidential value of the statement (Cele at 252 H and 256 E-F).
 As it appears further from Cele’s case (at 257 A) ‘an unsworn statement, though technically to be regarded as evidence, is certainly not entitled to the same weight as testimony; but it must nevertheless receive due consideration by the trier of fact, and be accorded such weight as, in the particular circumstances of the case, the trier of the fact considers that it deserves.’
 The effect and probative value of unsworn statements made by accused persons was considered by this court in Sandile Shabangu v the King (an as yet unreported decision delivered on the 22nd May 2008 in Criminal Appeal 15/2007.) In that case the following was said:
‘(A)n unsworn statement which cannot be tested by cross examination, carries less weight than evidence given under oath. Some consideration must however, be given to the statement. If the statement contains allegations of fact which are not disputed by evidence given by the Crown witnesses such allegations must be considered and a decision made as to the weight, if any, to be attached thereto. On the other hand, if the statements made are in conflict with, and are disputed by, evidence given under oath, very little, if any, weight can be attached thereto.’
 In this case, in the light of the Crown evidence which I have summarised, I do not think that the accused’s denial that he had intercourse with the complainant can be accepted.
 But that is not the end of the matter. In order to prove that the appellant was guilty of rape (as opposed to a contravention of the Girls’ and Women’s Protection Act) the Crown had to prove that the complainant did not consent. The appellant’s conduct as described by the complainant’s mother is as consistent with his having committed a contravention of the Act as it is with his having committed rape.
 An extraordinary aspect of the Crown case was that despite the fact that the rape was allegedly committed on the Sunday the complainant only made a complaint to her teacher on the following Tuesday. She explained that she was afraid of her mother, which was why she complained to her teacher and not her mother. But she went to school on Monday and waited until the following day to make the complaint. Neither the prosecutor nor the magistrate asked her why she did not complain on Monday. It is true that it only became clear from the teacher’s evidence that the complaint was made on the Tuesday, but the complainant was not recalled for further examination on the point. This raises doubts as to her credibility on the issue as to whether she consented.
 In her evidence the complainant said before he got on top of her the appellant promised to give her money. She did not resist or shout for help, though she told him it was painful when he inserted his penis in her vagina.
 Section 3 of the Girls’ and Women’s Protection Act, 1920, as far as is material, provides as follows:
‘(1) Every male person who has unlawful carnal connection with a girl under the age of sixteen years or who commits with a girl under that age immoral or indecent acts or who solicits or entices a girl under such age to the commission of such acts shall be guilty of an offence and liable on conviction to imprisonment not exceeding six years with or without whipping not exceeding twenty-four lashes and with or without a fine not exceeding one thousand emalangeni in addition to such imprisonment and lashes.’
(2) If, upon the trial of any person for the crime of rape, the court is satisfied that the accused person is guilty of an offence under sub-section (1), but is not satisfied that he is guilty of the crime of rape or of an assault with intent to commit rape, it may acquit the accused of rape and find him guilty of an offence under sub-section (1) and thereupon he shall be liable to the punishment provided therein.’
 In all the circumstances of the case I am not satisfied beyond reasonable doubt that the complainant did not give her consent to have intercourse with the appellant. I am, as I have indicated above, satisfied that he had intercourse with her and that she was under the age of 16 years.
 It follows that he was proved to have contravened section 3 (1) of the Girls’ and Women’s Protection Act.
 As I have said earlier I agree with the sentence proposed by my Brother Ebrahim.
JUSTICE OF APPEAL
DR S. TWUM
JUSTICE OF APPEAL