IN
THE HIGH COURT OF SWAZILAND
CRIM.
CASE NO. 189/02
REX
VS
JETHRO
MAGAGULA WEDRICK
MAPHALALA SIFISO MAGAGULA .
CORAM
K.P. NKAMBULE –J
FOR
CROWN FOR APPLICANTS
JUDGEMENT
11/11/04
The
Accused is facing an indictment of a total of seven counts. Accused
No. 1 was initially charged with Wedrick Maphalala who has since died
and Sifiso Magagula who is at large after he was released by the
court in terms of Section 136 of the Criminal Procedure and Evidence
Act. Before the Accused pleaded the prosecutor applied for the
withdrawal of counts No. 4, 5 and 6. He further applied for
separation of trials in so far as Accused No. 3 is concerned. All the
applications were granted.
1
In
count No, 1 it is alleged that Accused No. 1 is guilty of the crime
of rape in that upon or about the 1st of April 2000 and at or near
Motshane in the region of Hhohho the said accused, did intentionally
have unlawful sexual intercourse with one Khosi Sophie Dlamini,
without her consent and did thereby commit the crime of rape.
In
count No. 2 it is alleged that A1 and A2 are guilty of the crime of
robbery, in that upon or about 1st April 2000, and at or near
Motshane area in the Hhohho District, the said Accused acting jointly
and in furtherance of a common purpose did unlawfully and with
intention of inducing submission by Khosi Sophie Dlamini and Olive
Simelane, did take and steal from them certain property in Annexure
'A' their property or in their lawful possession and thus robbed them
of same.
In
count No. 3 it is alleged that they broke in the house there situate
of July Dlamini at Ekupheleni and stole items in Annexure 'B' valued
at E8,000-.
In
count No. 7 Accused No. 1 is charged with contravening Section 11 (3)
of the Arms and Ammunition Act of 1964 as amended, in that on the 6th
day of February 2000 he was found in possession of essential
components of a single barrel short gun serial No. 60990 without a
valid permit or licence.
Accused
No. 1 pleaded not guilty to all the counts. The crown then called PW1
Khosie Sophie Dlamini. This witness told the court that on the night
of 1st April 2000 whilst asleep at her place of employment at
Motshane in the homestead of Olive Simelane she heard Thobile her
sister, screaming saying there were strangers in the house.
2
In
the room in which she was sleeping PW1 was with Ntombi Mabuza. They
woke up and locked their room. After some time they heard someone
tying to open the door. He however failed to open. The person then
ordered PW1 and Ntombi to open the door threatening that if they did
not he would forcefully break the door and then deal with them. As
PW1 proceeded to open the door the person outside forcefully opened
the door from outside.
As
the person entered the house PW1 was able to see him as the light
from the passage which is adjacent to the door leading to their room
was lit. Accused who was wearing a cap took it off when he was
fumbling for the switch providing light to the room. PW1 was able to
identify him because it was not her first time to see the Accused.
According to PW1 she schooled with the Accused who was older than
her. She had seen him around Motshane some few days earlier.
On
entering the bedroom the person ordered them to lie down. He
proceeded to search for money. He eventually got a sum of E150.00 PW1
had reserved as transport money for her child who was attending
pre-sphool. At that point in time the complainant also heard another
voice. This voice enquired if the radio was serviceable. Accused No.
1 then asked where the car keys were. In response PW1 told him that
the keys were with the driver.
They
both went out for some time. Accused No. 1 returned. He pulled the
blanket from the back of PW1 who was sleeping facing the direction of
Ntombi as they shared the bed. According to PW1 she heard accused
inserting his penis into her vagina from the back. She tried to
resist and as she was crying the Accused ordered her to stop making
noise. As she resisted by closing her thighs tight the Accused hit
her on the thighs
3
until
she gave up. After ejaculating the Accused stood up and left the
room.
Before
leaving they took the following items with them:
2
two in one blankets
1
single ply blanket
1
comforter
1
duvet cover
1
radio
1
framed mirror
some
candles and soap.
These
items were later recovered by Mbabane police who called PW1 and PW2
to come and identify them at the police station.
PW2
Olive Simelane told the court that on the day in question she was
woken up by her daughter who was raising an alarm saying there were
strangers in the house. She woke up and found three people in the
kitchen. One of them was carrying a gun. The three ordered them to go
to the bedroom. The three followed PW2 and the girl to the bedroom
saying they must produce money. They searched the room looking for
money. They found some silver coins in a moneybag and took them.
Thereafter they demanded the car keys.
They
proceeded in other rooms looking for money. In one of the rooms there
was a boy sleeping who had with him takings of the day from the shop.
They took all the money.
After
the thugs were gone PW2 went to the bedroom where PW1 was sleeping.
She reported that Accused No. 1, whom she knew very well,
4
raped
her. They then tried to connect the telephone wires which had been
cut by the thugs and phoned the police. Police came in the morning
and took statements.
After
some weeks they were called to the police station to come and
identify the missing items. They did identify some of the items.
PW3
Ntombi Mabuza corroborates PW1 and PW2 in material respect. This
witness also told the court that he knew the Accused before. She
further said she was able to identify the Accused as a result of the
light which came from the passage. This witness further stated that
whilst the Accused was searching for money he recognised PW1 and
enquired if she was staying at the homestead.
According
to this witness after Accused and his friend had completed the search
for money they went away. After some time Accused returned alone. He
switched off the lights. They could, however hear his voice whilst he
was speaking. As he switched off the light PW3 heard PW1 crying. At
the time the Accused had entered the bed in which they were sleeping.
He entered from the back of PW1 who was sleeping facing PW3.
PW3
told the court that she heard the movement of the bed reminiscent to
movement made by people having sexual intercourse. After some time
the movement stopped and the Accused got out of the bed. PW1 reported
to PW3 that the Accused had raped her.
PW4,
Mfanimpela Mavuso, told the court that during the year 2000 he stayed
at Mnyokane. On the relevant time he was under arrest and in custody
of Mbabane Police. In furtherance of their investigations police went
to his house at Mnyokane. He accompanied the police. On arrival there
the police conducted a search and found items he did not know.
5
According
to this witness he had left Sifiso Magagula, Accused No. 3. The
police took the items as they fitted the description of the items
taken at Motshane regarding count No. 1 and No. 2.
Regarding
count No. 3, the crown called PW5, July Dlamini. This witness told
the court that on the day in question he left his homestead together
with his children and went to church. On his return he found that his
house had been broken into. The following items were missing;
One
T/V set
One
firearm
One
radio
He
then called the police who came and took a statement. On the
following day he went searching for his items around the area. He
found his T/V set just below his homestead. On the 10th April 2000
police came to fetch him so that he could come and identify some
items which had been recovered. On arrival at the police station he
identified his gun and the Hi-fi set.
2418
Sergeant J. Gumedze was introduced as an expert witness. He told the
court that whilst on duty 2553 Detective constable Mamba brought a
short gun for testing and that after testing the gun he concluded
that it was not serviceable as it failed to discharge a bullet. The
serial number of the gun was 60990, a single barrel short gun.
PW7,
Sam Magwegwe Mamba, told the court that he knew the Accused who
rented a room at his parental home at Ngwenya at the time of the
incident. According to PW7 Accused came to him and offered to sell
him the radio which is the subject matter in count No. 3. PW7 told
the
6
Accused
that he did not have money. The accused enquired if he could find any
person who could buy the radio. PW7 told him that there was someone
who could buy it but was working at Oshoek Border gate in the
Republic of South Africa side.
PW7
went to fetch the buyer who looked at the radio and liked it. The
buyer in the company of PW7 went to Mbabane and withdrew money. They
gave the money to Accused and took possession of the radio. After a
few weeks the Accused came in the company of police and demanded to
be shown the person who bought the radio. PW7 led the police and the
Accused to the buyer of the radio.
PW8,
3692 Detective Constable Dlamini, told the court that whilst
investigating a case of theft, they had the suspect one Mfanimpela
Mavuso. They proceeded to the suspect's place of residence at
Mnyokane in furtherance of their investigations. He was in the
company of 2353 Detective Constable Mamba and 3704 Detective
Constable Malinga.
On
arrival in the house they found Sifiso Magagula. On searching they
found a watch which had the inscription "O.M. Simelane".
There was a double decker radio and some items which fitted the
description of items stolen from Mrs. Olive Simelane's house
(complainant in count No. 2).
On
the 5th April they proceeded to a Mamba homestead at Ngwenya. This is
the homestead where Accused rented a room. The Accused led the police
to one Gobizandla Mamba (PW7). This witness led the police to the
person who bought the hi-fi set which was stolen from complainant in
count No. 3.
7
According
to PW8 the Accused further led them to Mafutha area in Motshane where
he produced a single barrel gun which was stolen from complainant on
count No. 3.
From
the accused's house police recovered the blanket which was identified
by the complainants on count No. 2 Olive Simelane and Khosi Sophie
Dlamini.
Before
the crown counsel closed his case he made an application in terms of
Section 22 (1) of the Criminal Procedure and Evidence Act as amended
to hand into court a medical report regarding count No. 1. The
Accused objected to the handing in of the medical report and asked
that the doctor be brought so that he could cross-examine him. The
crown counsel had a difficulty in that as the doctor who was an
expatriate had returned to his country of origin. The court ruled in
the Accused's favour.
In
his defence the Accused told the court that he never went to the
homestead of Olive Simelane and was nowhere near the scene of crime.
He told the court that he was not the person who was seen by both PW1
and PW3 on the night in question. He further told the court that the
crown failed to medically prove that penetration did take place
regarding count No. 1.
Regarding
the items which were found in his room at Ngwenya and later
identified by PW2 and PW1 as those stolen during the night of rape
and robbery, the Accused said the blanket belonged to him and that
the black bag was not found in his possession.
8
Regarding
count No. 3 the Accused told the court that the radio belonged to
Wedrick Maphalala (A2). He said he was asked by A2 to sell the radio
on his behalf.
Regarding
count No. 7 the charge sheet states that the offence was
COMMITTED
communicated
at Mnyokane. However, there is no evidence supporting this
allegation. After careful consideration I come to the conclusion that
the crown has not been able to prove its case beyond reasonable
doubt. Accused is found not guilty. He is acquitted and discharged.
On
count No. 1 and No. 2 there is overwhelming evidence that. A1 and his
friends broke and entered PW2's house. They were seen by both PW1 and
PW3. These two witnesses knew Accused very well. Accused was PW1's
schoolmate. She could not have mistaken him for someone else. She had
earlier told the court that she had recently seen the Accused around
the area.
Regarding
count No. 1 the Accused challenged the fact that the crown did not
lead medical evidence. It was the Accused who refused that the
rnedical report be handed in. He was within his rights to do so. Of
course in rape cases medical evidence should always be led or a
report handed in by consent wherever that is possible. However,
failure to lead medical evidence does not, in my opinion, mean that
such failure renders the case of the crown fatal to a conviction.
There
is no rule in our law which states that a court cannot convict in the
absence of corroborative evidence of penetration. After having said
that I must also mention that it is incumbent upon courts to always
exercise caution because of the nature of such cases.
However,
in the absence of corroboration of the actual penetration there may
be direct
9
and
circumstantial evidence which cumulatively points in that direction
and in that direction only.
The
evidence of PW3 was substantially similar to that of complainant on
count No. 1. She was in the house when the Accused broke the door to
their bedroom and entered. She saw the Accused when he forcefully
opened the door and tried to find the switch to light the bedroom.
PW3 told the court that as the Accused fumbled for the switch he took
off his cap, and as the light from the passage which was adjacent to
the door of the bedroom was on she could see all that was happening.
As the Accused was searching for money he was talking to both PW1 and
PW3.
On
his return for the second time they immediately recognised his voice.
Again PW3 corroborates PW1 in material respect. PW3 said as the
Accused came in they recognised him through his voice. This was 10
minutes after the first attack. This witness told the court that she
heard PW1 crying. Thereafter she heard movements reminiscent of
people making sexual intercourse. Clearly this witness could hear the
movement of the bed as PW1 was in the same bed with PW3.
This
evidence again is consistent with the evidence of PW1 and
inconsistent of the denial on the part of Accused. Although there was
no medical evidence to support that of complainant on count No. 1, my
opinion is that complainant's evidence was supported in the direct
and circumstantial evidence of PW3. I therefore regard the evidence
of PW1 and PW3 as true on both count No. 1 and count No. 2, and that
of Accused as false beyond reasonable doubt. It therefore follows
that the Accused is found guilty on count No.1 and No. 2.
Regarding
count No. 3, the Accused asked PW7 to get him the buyer of the radio
which was finally found in the possession of a certain South
10
African
police officer with the help of both the Accused and PW7. The Accused
told the court that he was asked by one Wedrick Maphalala, who is now
late, to sell the radio on his behalf.
However,
according to PW7, Accused told him that the radio belonged to both of
them and that they were paid by a certain gentleman for services
rendered. Clearly if the Accused was truthful he could not tell a lot
of stories. It is clear that he was trying to shift the blame to the
deceased. He has therefore, failed to reasonably explain how he was
found in possession of recently stolen items. The only inference that
this court can draw is that he broke and entered into the house of
July Dlamini and stole the items. He is found guilty as charged on
count No. 3.
In
summary therefore, the Accused is found guilty of rape in count No.
1; guilty of robbery in count No. 2; guilty of house breaking and
theft in count No. 3, He is found not guilty on count No. 7,
K.P.
NKAMBULE
JUDGE
11
