IN THE COURT OF APPEAL OF SWAZILAND
APPEAL CASE NO.35/02
In the matter between:
ROY NDABAZABANTU MABUZA APPELLANT
AND
THE KING RESPONDENT
CORAM LEON JP
STEYN JA
TEBBUTT JA
FOR THE APPELLANT IN PERSON
FOR THE RESPONDENT N.M. MASEKO
JUDGMENT
Tebbutt JA:
The appellant was convicted by the Magistrate of Lubombo on two counts of rape and one of contravening Section 3(1) of the Girls and Womens Protection Act No.39 of 1920 (the Act). In the first two cases the complainants were girls aged 11 and 9 years respectively and in the third a girl aged 12 years. He was sentenced to 9 years imprisonment on each of the rape charges, to run concurrently with one another, and 5 years imprisonment on the third charge to run consecutively to the 9 years i.e. an effective 14 years imprisonment. An appeal to the High Court against his convictions and sentences was dismissed and he now appeals to this Court.
The procedure adopted by the appellant in bringing his appeal was incorrect. Section 4(2) of the Court of Appeal Act NO.74 of 1954 provides that where an appeal to the High Court in a criminal case is dismissed by that Court, the appellant must first obtain the leave of the High Court to appeal to this Court. It is only where such leave is refused that he may then petition this Court for leave to appeal to it.
This Court has held that this procedure must be followed in all appeals from the High Court to this Court where the appeal is dismissed by the former and that the Registrar must not accept appeals or applications for leave to appeal to this Court unless the procedure set out in Section 4(2) is followed (see MAXWELL MBONGENI NDWANDWE V REX APPEAL CASE NO.13 OF 2000). That direction to the Registrar is repeated here.
The appellant neither sought nor obtained the leave of the High Court to appeal to this Court nor did he seek this Court’s leave to do so. Despite this, and as he was unrepresented and Mr. Maseko for the Crown did not object thereto, the Court condoned his failure to follow the correct procedure and heard the appeal. It would, however, issue a clear warning that it may not be prepared to do so in the future.
The facts upon which the appellant was convicted can be briefly stated. On 6th October 1996, a Sunday, the three children were playing at their home. Their parents had gone to church. The appellant called them all into the kitchen of the house where he said that they “should fall in love with him”. He instructed each of the girls in turn to remove their panties and to sit on his lap with their backs to him. He unfastened the zip on his trousers and took out his penis and then inserted his penis into the vagina of each of the girls. All the girls were present and watching while the appellant did this to each of them in turn. He then gave them E5. The mother of one of the girls said that the latter had told her fully of what the appellant had done to them. She reported the matter to the police and all three girls were then medically examined. The appellant, who was not legally represented, did not challenge these facts, his cross-examination being directed to peripheral and largely irrelevant matters. The medical reports verified the evidence of the children, their examination of them confirming that penetration [of them] had occurred in respect of each one of them. It was on the above evidence that the Magistrate based his conviction of the appellant, holding that as the girls aged 9 and 11 were legally incapable of consenting to sexual intercourse, the appellant was guilty of raping them while in the case of the older girl, he was guilty of contravening the Act, she being under the age of 16 years as provided in Section 3(1) of the Act.
The appellant’s grounds of appeal as originally drafted are the following:
(a)
that although the court record states that his right to legal representation were explained to him, the record does not reveal that what the court said to him represented a full explanation to him of his rights.
(b)
That the court in convicting the appellant wrongly relied on-
(i)
the uncorroborated evidence of young children;
(ii)
the evidence of the mother, which was hearsay;
(c)
that the sentence is excessive.
The appellant who argued his appeal in person did not pursue the first two of his original grounds of appeal and correctly so. There is no substance in either of them. In regard to the first submission, the record reads as follows:
“The rights of accused to legal representation explained. The accused states that he has no money, he will conduct his own defence. God will be with him”.
It is clear that the appellant knew exactly what his rights were and that the court’s explanation of these to him must have been sufficiently full for him to have appreciated what they were.
As to the mother’s evidence, it is trite that evidence of a complaint by a victim in a rape case is always admissible. This ground is also, therefore, without substance.
The only point of any merit, which was also adverted to by the Magistrate in his judgment, is whether the corroboration required of evidence in sexual offences and that required in applying the cautionary rule in respect of the evidence of minor children, could come from the evidence of another minor child. Although the appellant did not argue this point before this Court, it was raised in his original grounds of appeal and I will therefore deal shortly with it.
In England, under Section 38 of the CHILDREN AND YOUNG PERSONS ACT OF 1933, which requires corroboration of the evidence of young children, it has been held that such corroboration cannot come from the evidence of another child, which equally requires corroboration (see REX V MANSER 25C.A.R 18). No similar statutory enactment exists in Swaziland and that case has no application here.
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 158 (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 506 at 596). There are other factors 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))”.
In the present case the evidence of the children was given well. Each one of them saw what happened to the others and their stories are substantially the same on all material aspects. The appellant did not deny what they had said. On appeal before us he said he was “joking” or “playing” with the children and did not appreciate that what he was doing was wrong. While the children may have thought it was some game they were playing with him, the appellant, who is a man in his 50s and clearly, from the way he presented his argument, not a fool, could not have believed that he was doing nothing wrong by his sexual antics with these little girls. He was in my view clearly correctly convicted on all three counts.
As for sentence, he received which has subsequently become the minimum sentence prescribed by law on the first two counts, which were ordered to run concurrently. It cannot be contended that these sentences were excessive. The sentence of five years on the third count was a fair and appropriate one. The Magistrate cannot be faulted for not letting it also run concurrently with the others. Sentencing lies in the discretion of the trial court and this Court will only interfere with a sentence of the trial court if the latter has misdirected itself or the sentence is excessive in the sense that it substantially exceeds that which this Court would have passed. Neither of these factors exist in this case and the sentences must therefore stand. The appellant submitted that they should have been backdated to the date of his arrest in July 1996. He was, however, only in custody for four months before being released on his own recognisances until the day he was sentenced. This does not warrant this Court’s reducing in any way, or backdating at all, the sentences in question.
In the result the appeal is dismissed and the convictions and sentences are confirmed.
P.H. TEBBUTT
JUDGE OF APPEAL
I agree R.N. LEON
JUDGE PRESIDENT
I agree J.H. STEYN
JUDGE OF APPEAL
Delivered in open court this day of November 2002.
