IN
THE HIGH COURT OF SWAZILAND
APPEAL
CASE NO.6/2004
In
the matter between:
REX
VS
MFANZILE
MKHWANAZI
CORAM
BROWDE
JA
STEYN
JA
TEBBUTT
JA
FOR
THE CROWN
FOR
THE APPELLANT IN PERSON
JUDGEMENT
Steyn
JA
The
appellant was tried in the High Court on two counts of rape. He
pleaded not guilty to both counts. At the conclusion of the evidence
he was convicted on both counts. He was sentenced to a term of
imprisonment of 12 years on each count, the sentences to run
concurrently.
2
The
appellant who appeared before us in person challenged both the
validity of his convictions and the propriety of the sentences
imposed. In order to address these issues I summarize the evidence as
follows;
In
respect of count 1 it is alleged that during the months of August and
September 1999 the appellant raped the complainant one Lovergirl
Simelane a minor girl, 14 years of age. It was also the Crown's
contention that the rape was attended by certain aggravating factors
i.e.
The
appellant raped the complainant on several occasions during the
period in question.
The
appellant in so doing breached a trust relationship in as much as he
had accepted responsibility for looking after her (the complainant).
She
was a girl of tender years and virgin when he raped her.
The
appellant used no protection when having sexual intercourse with
her.
On
count 2 the Crown alleged that he had during the months of June and
July 2000 raped one Hloniphile Simelane all year old minor who in law
is incapable of consenting to sexual intercourse and therefore had
committed the crime of rape. Similar aggravating features as in
respect of count 1, were also alleged by the Crown.
It
was common cause that the appellant was an uncle of both of the.
complainants. His sister who is the mother of the two complainants
had entrusted her two daughters to the care of their uncle while she
visited her husband at his place of work in Big Bend from time to
time.
3
The
complainant on count 2 was called to give evidence as PW1 and
testified as to the appellant's conduct both in respect of the
allegations contained in count 2 as well as of his sexual exploits
with "Lovergirl* the complainant on count 1. She described how
sexual intercourse took place with both of them from time to time
during 1999 and 2000 whilst their mother was away and that this
occurred on many occasions.
The
complainant on count 1, (Lovergirl) gave evidence as PW3 and her
testimony corroborated that deposed, to by PW1. The sexual abuse
occurred on several occasions with both of the complainants and
always when their mother was absent.
Whilst
PW1 had not undergone a medical examination, PW3 did. She was found
to have been sexually assaulted over a considerable period of time.
The examining doctor also diagnosed her as being HIV positive and
that she had sustained a sexually transmitted disease (STD). He found
her father who was prior to his death a co-accused with the
appellant, to be similarly infected with a STD and that he tested
positive for HIV. No active STDs were seen on the examination of the
appellant and he was not found to test positive for HIV.
The
probabilities point strongly to the fact that PW3's father had had
sexually relations with his daughter. This is so because although she
denied this in evidence, PW3 had disclosed the fact that her father
had sex with her at Big Bend, to Dr. Nunn who had examined her. It
was this false denial as well as the fact that he did not manifest
any STD or HIV infection which was used by the appellant as the
lynchpin of his appeal on count 1.
Whereas
the false denial by the witness of her father's conduct must impact
negatively on her credibility, the fact of the appellant's sexual
4
health
is explicable by virtue of the fact that he had sex with Lovergirl
before her father and not thereafter.
The
accused also relied on the fact that no medical evidence was
addressed to corroborate the testimony of PW1 and that PW3's evidence
was also not corroborated by these two witnesses. However, these two
witnesses corroborated one another in material respects. Two other
witnesses also gave confirmatory evidence. These were the aunt of PW1
(PW2) who testified that PW1 came crying to her whilst being chased
by the accused. On being questioned, PW1 told her that appellant "was
used to raping her". The aunt (PW2) advised her to tell her
parents and her mother.
The
appellant was summonsed and was present when the witnesses repeated
the charge of rape by the appellant to both the mother and the aunt.
According to the witness the appellant did not deny the charge but
"just looked down".
The
investigating officer PW5 also gave evidence implicating the
appellant in regard to the alleged rape of PW3. She says the
appellant did not give them any problems in response to the charge
but said that he was "tempted" and that he was a Christian.
In
a carefully reasoned judgment Maphalala J analyzed the evidence and
in doing so pointed to the fact that in cases involving an alleged
rape where young girls are concerned the court should exercise
awareness of the special dangers inherent in cases of this kind. He
found that both girls impressed him as intelligent and confident and
that although no medical evidence was tendered in respect of count 2,
the direct and the circumstantial evidence taken cumulatively
confirmed that PW1 had been raped by the appellant. The trial Judge
then refers to a judgment of
5
this
Court by Tebbutt JA (ROY NDABAZABANTU MABUZA APPEAL
CASE
NO.35/2002 (unreported)} concerning the evidence of young children.
At page 4 of the judgment of this Court said the following;
"It
is clear, however, that the evidence of young children should be
accepted with caution. The imaginativeness and suggestibility of
children are only two of a number of elements that require that this
should be so. However, courts should not act upon any rigid rule that
corroboration must always be present before a child's evidence is
accepted (see R V MANDA 1951(3) SA 159 (A) at 163). The question
which the court should ask itself is whether the evidence of the
young witness is trustworthy. An admirable guide to this is provided
by the judgment of Diemont JA in WOJI V SANTAM INSURANCE COMPANY LTD
1981(1) SA 1020 (A) at 1028 A-E:
"Trustworthiness,
as is pointed out by Wigmore in his Code of Evidence para 568 at 128,
depends on factors such as the child's power of observation, his
power of recollection, and his power of narration on the specific
matter to be testified. In each instance the capacity of the
particular child is to be investigated. His capacity of observation
will depend on whether he appears "intelligent enough to
observe". Whether he had the capacity of recollection will
depend again on whether he has sufficient years of discretion "to
remember what occurs" while the capacity of narration or
communication raises the question whether the child has "the
capacity to understand the, questions put, and to frame and express
intelligent answers" (Wigmore on Evidence Vol.II para 5506 at
596). There are other facts as well which the Court will take into
account in assessing the child's trustworthiness in the witness-box.
Does he appear to be honest - is there a consciousness of the duty to
speak the truth? Then also –
"the
nature of the evidence given by the child may be of a simple kind and
may relate to a subject-matter clearly within the field of its
understanding and interest and the circumstances may be such as
practically to exclude the risks arising from suggestibility"
(per Schreiner JA in R V MANDA (supra))".
Having
done so the court a quo concludes as follows:-
6
"I
find that in casu the evidence of both PW1 and PW3 to have been
truthful and these two girls were "intelligent enough to
observe" what happened to them at the hands of the accused
person".
The
appellant pointed to some inconsistencies between the evidence of PW1
and PW3. We have had regard to these. All of them appear to be of a
minor nature and are certainly not serious enough to warrant a
rejection of their testimony or bring it into serious question.
The
sentence of 12 years appears to us to fairly reflect the abhorrence
with which the courts of this Kingdom view the crime of rape of young
girls and is in no sense out of line with that imposed by other
courts whose judgments came before us during this session. See in
this regard the comments of this Court in the case of S V MASUKU
APPEAL CASE NO. 16/04 delivered contemporaneously with this judgment.
For
these reasons the appeal is dismissed and the convictions and
sentences are confirmed.
J(H).STEYN
Judge
of Appeal
I
agree J. BROWDE
Judge
of Appeal
I
agree P.H. TEBBUTT
Judge
of Appeal
DELIVERED
IN OPEN COURT ON THIS 15TH DAY OF NOVEMBER 2004
