IN
THE HIGH COURT OF SWAZILAND
Held
at Mbabane
Criminal
Case No. 317/2002
In
the matter between:
REX
Vs
MUSA
HLATSHWAKO
Coram
Annandale, ACJ
For
the Crown Mr. P. Dlamini
For
the Defence In Person
JUDGMENT
The
tragedy of a young and innocent little girl whose frail body is
abused by a depraved and vile man can never be allowed in any decent
and moral society. All concerted efforts to eradicate the scourge of
the
2
vilification
and sexual abuse of all women, but especially so in the case of young
girls in Swaziland, has proven to be futile to a great extent,
especially so in the case of the complainant in this matter.
The
accused person, who through lack of financial means had to conduct
his own defence, pleaded not guilty to two counts of rape. For the
reasons below, it is helpful to quote the charges verbatim.
"COUNT
ONE
The
accused is guilty of the crime of RAPE.
IN
THAT upon or about 24th July, 2001 at or near Mbabane area, in the
district of Shiselweni, the said accused did wrongfully and
intentionally have unlawful sexual intercourse with Pinkie Gabsile
HIatslmako, without her consent, and did thereby commit the crime of
Rape.
COUNT
2
The
accused is guilty of the crime of RAPE.
3
IN
THAT upon or about 27th February, 2002 and at or near Mbabala area,
in the district of Shiselweni, the said accused did wrongfully and
intentionally have unlawful sexual intercourse with Pinkie Gabsile
Hlatshwako, without her consent, and did thereby commit the crime of
RAPE."
From
the onset, it is necessary to stress, yet again, the Importance of a
correct formulation of an indictment. For justice to be done, and to
be seen to be done, and also for reason of affording an accused
person a fair trial, it is necessary to restate that the crown (the
prosecution) bears an onus to prove the guilt of an accused person
beyond a reasonable doubt, not beyond any doubt and also not to raise
a reasonable suspicion or a balance of probabilities. The accused
person has an absolute and inalienable right to be properly informed
of the details of the charge, which it proved, will substantiate his
guilt. It is therefore imperative that the formulation of the charge
be precise, accurate and correct.
The
Criminal Procedure and Evidence Act, 1938 (Act 67/1938) sets out the
essentials of an indictment in that it "...shall set forth the
offence with which the accused is charged, in a manner, and with
sufficient particulars as to the alleged time and place of committing
such offence and the person ...against whom ... such offence is
alleged to have committed, as
4
ale
reasonably sufficient to inform such accused of the nature of the
charge." (Section 122)
Where
theft is charged, the dates between which a deficiency occurred may
be alleged, in other prosecutions some leeway is also afforded.
Various presumptions are also catered for. Section 148 comes to the
rescue of otherwise insufficient or defective indictments, for
instance, it provides for an extention of time three months before
and after an alleged date to be deemed sufficient enough, under
certain circumstances, to inform the accused of the date of the
alleged offence.
Essentially
though, the accused person has to be succinctly and properly informed
of the case he is to meet, which is to be proven by the prosecution.
Over
and above '"docket' disclosure, the established procedure in
Swaziland is that the indictment is accompanied by a summary of"
evidence that the crown intends to prove at the trial. The source of
the summary is the police investigation docket or file, containing
the statements made by witnesses during the investigation phase and
it is thus so that the summary of
5
the
evidence of a particular witness is precisely that, I will revert to
the summary of the complainants evidence further down. The essence is
that the indictment is 'amplified' to the same extent of further
particulars sought and advanced, which provide the details of the
case an accused person is to meet at the trial.
In
the course of this trial, the evidence of five witnesses for the
crown was heard and documentary evidence was also admitted. The
accused testified in his own defence.
The
complainant (PW2) testified that the accused is her "brother",
meaning that his father is a brother of her father. On the 27th
February 2002, he had intercourse with her 'at the back of the
kraal'. This was not the first time, as he had also done so the
previous year while they were 'at the river.' It needs to be recorded
that the date of the incident referred to here was in the form of an
affirmative answer to a leading question by the crown's counsel - "Do
you recall the events of the 27th February 2002?" Later in the
trial it transpired that the complainant was very vague and uncertain
insofar as her ability to recall specific dates are concerned. At
best, she was able to distinguish between the years 2000 and 2001,
but not the months of a year,
6
nor
specific days of any particular month. It is however not the question
of
precise
or imprecise dating which leads to the end result.
Thereafter,
she testified that in 2001, they had intercourse 'in front of the
kraal'. She then said that in 2002 they had intercourse 'at the
garden', where they had gone to pick tomatoes. In all, during the
years 2001 and 2002 the accused is said to have had intercourse with
her some four times, two of which she reported to her mother, which
led to two medical examinations of herself, at Nhlangano in 2001 and
Hlatikulu in 2002.
She
says that one Mthokozisi (PW4) witnessed the events. She also stated
that she did not record a statement with the police, quite
emphatically so.
Under
cross examination, the accused contested her evidence, putting it to
her that her evidence is what her mother told her to say, with her
mother having an axe to grind with him and trying to avoid having him
as an extra mouth to feed during a shortage of food.
7
During
the hearing of this evidence, and noting that a summary of her
evidence has been filed together with the indictment, the source of
which ordinarily being a statement made to the police, I asked some
questions to this witness. She was adamant that she had made no
statement to the police. When asked where the information would have
been obtained to draft the summary of her own evidence, which' also
contains the dates and places of the incidents alleged in the
indictment and the places where it would have occurred, she said that
it is her mother who said so, as was alleged by the (undefended)
accused in cross examination.
Further,
when asked how many times she has had intercourse, contrary to her
evidence-in-chief where she had it as four times, she now increased
it to ten times.
When
further asked by the accused why it did not appear in the police
statement, which would be used to formulate charges against him, that
he was not also alleged to have had intercourse with her at the
kraal, the over and the garden, she responded by saying it is because
she did not tell her mother about it. This is in stark contrast to
her earlier version that indeed she told her mother about it.
8
The
so called eye witness, Mthokozisi (PW4) who was called to verify what
he would have seen happening. At the time he testified, he was a
young boy of thirteen, who experienced quite some difficulty in
conveying to the court whether he understood the difference between
true and false evidence. He was asked about the date(s) his evidence
would relate to and he vaguely placed it somewhere in the year 2001.
His
evidence is that he saw the accused 'sleeping' with the complainant,
lying on top of her. This he says he saw from a vantage point of
climbing on top of the poles at the kraal, with the other two (as
indicated) some 30 paces away. They were in a bare area of the
garden.
According
to the complainant, the intercourse in 2001 occurred at the kraal and
the incident in the garden during the following year, 2002, Although
both the complainant and this child were quite vague about times of
events they testified about, they each place the event in the garden
in different years.
9
The
mother of the complainant, Zanele Mavimbela (PW5) was also called by
the crown to testify. She said that on the 24th July 2001 she noticed
that her daughter walked with a limp. On enquiring, she was told that
it was due to pain under her heel but that on checking it, she found
nothing wrong.
Sometime
'later' or after 'a long time' or 'subsequently', she again noticed
that her daughter had a difficulty to walk and this time seriously
questioned her. To her horror, she was then told that the accused had
raped her child.
Eventually,
after relating it to an elder aunt who undertook to speak about it to
the accused and again due to a difficulty of the complainant to
properly walk, she took her to a hospital, was referred to the police
when making her story known and subsequently the complainant was
medically examined at the Nhlangano clinic. The accused was then
arrested but released a month later to write his December exams.
The
medical practitioner who conducted this examination could not be
located to give viva voce evidence, but with the informed consent of
the
10
accused,
the doctor's report was admitted as evidence, exhibit "B".
According to the report of the 3rd August 2001, the complainant (7
years of age at the time) had a perforated hymen and a perforation of
her fourchette. The doctor recorded an opinion of "evidence of
sexual activity".
The
ordeals of the complainant apparently continued, as she again
reported to her that she was raped by the accused. This time, she was
told where it would have occurred, namely in the bush where they had
gone to cut logs. Yet again, on the 27th February 2002, she became
suspicious when on her return from Mbabane, she found the accused and
her child exiting the grandmother's hut. On questioning her child,
she was told that the accused had raped her on top of the
grandmother's bed, whereas the accused said that they did nothing.
Despite
this, she did not make a report to the police or to take the child to
a doctor, but instead took the child to stay at her parental
homestead. She eventually reported the matter to the complainant's
father who in turn alerted the police, resulting in a medical
examination on the 4th March 2002.
11
Dr.
Torya who examined the complainant testified in court about Ms
observations and finding. The crux of his evidence is that he could
not come to any firm finding to conclude recent rape or sexual
intercourse. He noted that her hymen was torn but that it would have
much been longer than six days prior to the examination and that it
could have been caused by other causes than sexual activity.
When
cross examined, the complainant's mother was confronted by the
accused, accusing her of bearing a grudge against him. He repeated
that she disliked him as he was an extra mouth to feed during a
shortage of food and that she wanted him out of the way. She denied
it. She confirmed that her accusations of him were based on what she
was told by her young daughter in 2001 and 2002, now eleven years of
age, further that her suspicions were aroused by her uncomfortable
gait and finding the two of them exit a hut together. She did not
notice anything untoward when washing the child's clothes.
Notably,
her evidence about receiving a report of rape from her daughter at
the time they exited the grandmother's hut was not also mentioned by
the child in her own evidence, nor that she was raped on top of
12
the
grandmother's bed, as was vividly summarised by the crown prior to
the trial.
Also
notably absent is any mention of the equally vivid description in the
summary of evidence which gave rise to the first count of events in
July 2001 when the accused was said to have raped her inside his own
abode.
The
final prosecution witness (PW3) is the investigating officer who gave
his account of receiving complaints, eventually arresting the accused
and arranging for medical examinations. On cross examination, having
solicited evidence about an alleged confession, the now familiar
allegations of torture were made, as is frequently heard in so many
trials. I need not delve in any detail on this as no admissible
evidence about any 'confession' or admission was adduced by the
police officer, for serious consideration by the court, save the bald
allegations.
In
his own evidence, the accused gave an exculpatory version of events,
amounting to a denial of the crown's case. He gave his version of
events, placing himself away from the incidents as related by the
witnesses for the prosecution. He also said that the distance between
the kraal and vegetable patch is too far for Mthokozisi (PW4) to have
been able to see
13
what.
he narrated, a matter not canvassed with that witness. He was not
enticed to come forth with, any admissions during cross examination
by the crown's counsel and restated his defence as being loathed by
the complainant's mother for the aforementioned reasons.
On
a final analysis of the evidence, it needs re-mentioning that there
is no onus on any accused to prove his innocence but that it is the
prosecution who has to prove his guilt. In order to do so, reliable
evidence has to be placed before court, which in turn must prove and
substantiate the allegations in the charge.
In
the present matter, I have no choice but to draw an adverse inference
from the very substantial deviation between the summary of the
complainants evidence, sourced from her statement to the
investigating police officer, and her own evidence in court. The
different stories simply do not match. To make it worse, she denies
that she ever recorded a statement with the police, whereas the
police officer testified that she did. She stated that the source of
information is her mother.
14
In
her statement to the police, which I have to accept that she indeed
made, contrary to what she says, it is stated that the two charges
emanate from events that occurred in the hut of the accused and the
hut of her grandmother. This is totally at odds with her evidence
that each and every event, whether four or ten times, occurred in the
open.
I
accept that the complainant is now a young girl of eleven, seven or
eight years of age at the time of the alleged incidents. This does
not dispense with the requirement that evidence must be reliable at
minimum, to sustain any conviction. This is especially so in trials
where the complaint is of sexual nature, moreso when the evidence of
a child is considered.
The
medical evidence does not serve to be a safeguard of any sort. Both
examinations justify findings that sexual activity cannot be ruled
out, but even if taken as proof of sexual intercourse, neither report
supports an adverse inference of any sort against the accused. If it
was so that the girl was raped a few days prior to the second
examination, there was no evidence of forceful penetration resulting
in bruises or visible injury at the time she was examined. The first
medical examination is so inconclusive as to be peripheral at best.
15
The
contradictions in the evidence of the complainant and other
witnesses, as indicated above, does not auger well for a conviction
with any measure of certainty, let alone beyond reasonable doubt. The
law is clear and certain that the large measure of doubt by necessity
has to accrue to the
accused.
As
mentioned at the onset of this judgment, the tragedy of an abused
child cannot be condoned. If this unsuccessful prosecution has to
leave at least one positive legacy, it would be to alert the
authorities of the inadequate awareness of children and their parents
as to how such complaints are to be made and dealt with. Timeous
examination by sensitive doctors can vastly improve the lot of
molested girls. So can sensitised and specialised police officers who
become aware of complaints of sexual abuse. The prosecution service
could well learn from neighbouring jurisdictions where specialised
and dedicated sexual offence prosecutors thoroughly interview and
assess witnesses prior to prosecutions, sifting the cases and
ultimately obtain very high percentages of convictions.
16
In
the event, it is ordered that the accused be acquitted on both counts
of rape.
ANNANDALE,
ACJ
