IN THE COURT OF APPEAL OF SWAZILAND
APPEAL CASE NO.29/99
In the matter between:
MANDLENKHOSI M. NGWENYA
CORAM : BROWDE JA
: STEYN JA
: TEBBUTT JA
FOR THE CROWN :
FOR THE APPELLANT : IN PERSON
This is an application for leave to appeal. I refer to the applicant as the appellant. He was charged with having committed the crime of rape. In the alternative he was charged with the crime of having unlawful sexual intercourse with a girl under the age of 16 years. He pleaded not guilty to both the main and the alternative charge. After hearing evidence the Court acquitted appellant on the rape charge, but convicted him on the alternative charge. He was sentenced to six years’ imprisonment. His appeal to the High Court having failed he now seeks leave to appeal both against his conviction and sentence.
Counsel for the appellant advanced two grounds upon which he challenged the conviction. The first ground was that the appellant was denied the opportunity to engage the services of an attorney when the attorney who appeared for him in the trial court withdrew from the case. The second ground upon which he challenged the conviction was that his guilt was not established beyond a reasonable doubt, because, so he submitted, there was no medical evidence corroborating the evidence of the complainant that she had in fact been raped. I deal with the second ground of appeal first.
The case against the appellant was a powerful one. Not only did the complainant give a straightforward and convincing version of the events, but her evidence was corroborated in the most conclusive manner possible by her mother PW1. She, having had her suspicions raised, followed the appellant and her daughter, came upon them in a maize field and, caught the appellant whilst he was engaged in having sexual intercourse with her 11 year old daughter. She said that as she was approaching she heard appellant shouting, “Wait my sister-in-law, I am about to finish.” Complainant’s mother says that she pounced on appellant and tried to throttle him. When she was unsuccessful, she hit him on the head with a tin of coca cola and raised an alarm at the same time. This latter evidence was confirmed by PW2, a neighbour who came upon the scene at the point when the assault with the coca cola tin took place. Appellant was still “undressed” at this point.
It is true that it does assist a court to be able to rely on medical evidence which corroborates the testimony of a complainant in a case involving a sexual assault. However, in the present case, the guilt of the appellant was established so conclusively that there would have been no need to have had recourse to medical evidence.
However, there was medical evidence and although much of it was inconclusive, the examining doctor did find that the complainant’s vagina was enlarged. He also found that the hymen was absent and that there were some traces of blood in the vagina. The cause of the enlargement of the vagina according to the doctor was penetration. The examination was painful and this was caused by recent penetration.
The appellant testified. His evidence was a bare denial. Not surprisingly his testimony was rejected by the trial court. As stated above, the case against the appellant was powerful and convincing.
There are therefore no prospects of success on this ground of appeal.
As to legal representation, I would say the following. In the trial court there were no less than 40 postponements. Many of these were at the request of the defence. Moreover, on at least two of these occasions counsel for the appellant failed to appear despite being advised of the date of the hearing. The presiding Magistrate exhibited a great deal of tolerance in allowing the case to be postponed repeatedly because counsel was unavailable.
At the close of the Crown case on the 8th October 1997, Mr. Nxumalo for the appellant applied for an adjournment and case was postponed to the 30th November. On this date counsel for the appellant applied for a further postponement “in order for him to consider other aspects of the case and also because his client is ill today, suffering from an illness he does not know.” The matter was then postponed till the 7th January 1998.
On this date Mr. Nxumalo failed to appear. The appellant, according to the record applied “for a final adjournment of the matter to another date and if he (his attorney) is not available even then, the matter must proceed.” It is also recorded that the public prosecutor stated that “the postponement should be final as Mr. Nxumalo has all along presented problems in this case…..”
The trial court then granted the “final postponement.” The Magistrate went on to say, “The matter will proceed on 21st January 1998 at 9.00 hours with or without legal representation.”
On this day Mr. Nxumalo appeared and stated that he was withdrawing as attorney of record due to the fact that he “has not been adequately instructed to continue with the matter.”
The appellant then asked for a further indulgence. After having heard him and the prosecutor, the court ruled as follows:
“Having heard the application and objection and gone through the record the court orders that the matter proceeds as per accused’s request of 7th January 1998 and views this application as a delaying tactic as the matter is very old having first been brought to court on 17th February 1997 and has been postponed for many occasions at the instant of the defence. Further that Mr. Nxumalo’s withdrawal could not have taken accused by surprise as he came prepared to proceed even in his absence and in this case justice must be done and seen to be done without the court being seen to be favouring the defence without due consideration of the expectations of the other side or being overly indulgent to the defence. The court has been too indulgent to allow the matter to take almost a year to proceed all at the instance of the defence.”
I do believe that the version of the events set out above, demonstrate conclusively how unmeritorious the application for leave to appeal on this ground is. The appellant and his counsel, at all times, received fair and just consideration and treatment by the trial court. Whilst the right to representation is important, so are the rights of the witnesses and of society. Not only has the inconvenience that witnesses are subjected to when cases are repeatedly postponed have to be borne in mind, but their ability to recall events can be seriously and negatively affected by lengthy delays in the presentation of their evidence. This is the more so where the complainant is a young girl of 11 years of age. Also, society has a right to justice, and justice delayed is justice denied.
Finally under this head I point to the fact that the appellant was legally represented throughout the Crown case. He was only obliged to present his evidence and that of his witness when his counsel withdrew at the close of the Crown case.
There are therefore no prospects of appeal also in this respect.
There is an appeal against the sentence of six years’ imprisonment. It is true that the sentence is the maximum prescribed for this offence by law and that the appellant is a first offender. However, this case falls in the most serious category of cases of this kind. Indeed the appellant was most fortunate not to have been convicted of rape. He showed a callous disregard for the rights of this young girl, planned the escapade and persisted in his unlawful conduct even upon being confronted with the complainant’s mother. There is no merit in the challenge directed at the manner in which the Court exercised its discretion in determining an appropriate sentence.
For these reasons the application for leave to appeal is refused.
J.H. STEYN JA
J. BROWDE JA
P.H. TEBBUTT JA
Delivered in open Court on this …… day of May 2000.