IN THE COURT OF APPEAL OF SWAZILAND
APPEAL CASE NO.
In the matter between:
MBHONO SHONGWE APPELLANT
AND
REX RESPONDENT
CORAM : BROWDE JA
: STEYN JA
: TEBBUTT JA
FOR THE APPELLANT : IN PERSON
FOR THE CROWN : MS. NDERI
JUDGMENT
Steyn JA:
At the hearing of the appeal the Court made an order in the terms set out below. We indicated that we would furnish full reasons for this order later. These reasons are the following.
Appellant was charged with rape. It was contended by the Crown that he had unlawfully had intercourse with an 11 year old girl. Aggravating circumstances were alleged. He pleaded not guilty but after a trial the High Court convicted him of rape and sentenced him to 12 years’ imprisonment. He has noted an appeal both against his conviction and sentence.
His grounds of appeal can be summarised as follows:
“i. The court a quo erred or misdirected itself in accepting the Crown’s evidence in as much as the witnesses may have set out to wilfully misinform the court;
ii. The court a quo erred or misdirected itself in convicting the appellant in absence of conclusive medical evidence;
iii. The court a quo erred or misdirected itself in convicting the appellant on uncorroborated evidence – particularly medical evidence.”
In his heads of argument he has expanded on these grounds. Whilst persisting in his challenge that it was not established that he had committed any sexual assault on the complainant; appellant directed the greater part of his argument to the contention that the Crown had failed to prove that penetration had actually occurred. I deal with these two challenges as follows:
1. Did the appellant sexually assault the complainant?; and
2. if he did so, did he commit the crime of rape, inasmuch as the State was obliged to prove that penetration in fact occurred. If it did not, of what crime if any should appellant be convicted?
The evidence on which the court below relied in convicting appellant was the following. The complainant testified that during 1998 she was living with her grandmother at Mafutseni. Residing with her in the homestead were her two cousins Hlobsile and Molly. She also confirmed that she knew appellant who is related to her.
On the day in question, appellant came to the homestead. She said that the following then occurred: “He then asked who would take the position of Molly Twala as his wife.” They thought he was joking and she jokingly replied that she would be taking her (Molly’s) place. Shortly afterwards and as her cousin Hlobsile was about to start washing the dishes, appellant sent her to fetch a griller from “a new house”.
After Hlobsile had left, appellant proceeded to unzip his trousers and to pull down complainant’s pants. She says appellant then “inserted his penis in her vagina”. She tried to cry out but he covered her mouth with his hand so that her shouts would not be heard. At his third attempt to penetrate her, appellant failed to close her mouth and she was able to shout for help from Hlobsile. Hlobsile then appeared and pulled complainant by her arm. Appellant then desisted but said that he would be coming back because he was not satisfied. She told her grandmother when the latter came home in the afternoon what had happened. The matter was then reported to the police.
In cross-examination complainant was asked by appellant:
“I want to know if my penis penetrated you?”
Complainant replied by saying “It did not penetrate because you were forcing penetration but it did not.”
Questioned by the Judge as to what she meant by her evidence when she said he inserted his penis in her, complainant replied:
“He inserted it into my vagina.”
When the Judge pointed out to her that she had said appellant did not succeed when she was being cross-examined by him, she replied:
“He put it in my vagina but he did not succeed.”
Complainant’s cousin Hlobsile (PW2) was called and corroborated the evidence of the complainant in material respects. For example she confirmed the comment appellant made about his “wife” Molly. She also deposed to the fact that she was sent on an errand in connection with a griller by appellant. She heard complainant calling her and peeped through the door and saw appellant on top of the cousin. She stated that upon enquiry complainant told her that appellant had raped her.
Complainant’s grandmother testified as PW3. She confirmed complainant’s date of birth as the 20th of May 1986. She was therefore 11 years (nearly 12 years) old when the alleged offence was committed. Appellant is her (PW3’s) husband’s brother. She was working in the fields on the day in question and on her return she received a report about what had happened. The report was consistent with the complainant’s evidence as related above.
When cross-examined by the appellant about the report PW3 allegedly received from the complainant, the witness responded by saying that she was informed by the complainant that “you (appellant) were pushing inside with your penis but because she is too young you did not penetrate.”
The complainant was examined by a gynaecologist the following day; i.e. the 2nd of May. The relevant aspects of his evidence were the following:
He recorded that “the hymen looks absent,” there was a whitish discharge, the examination was painful. There was no lesion or wound on the penetration. The vaginal entrance was said to be small for her age. He could not confirm any sexual assault by medical assessment.
Appellant testified. All he said in evidence in chief was that he does not know anything about the offence and that he was innocent. He confirmed that he was at the complainant’s house that day and that he had sent PW2 with the griller. He admits that he was in the kitchen with PW1 (the complainant). He also admits telling her that she was his wife, but that he left then, telling her that he would be coming back. He suggested that the grandmother PW3 had schooled the two young girls to lie.
The trial court analysed the evidence. It accepted the evidence of the two girls and rejected that of the appellant and found appellant guilty as charged.
The evidence of these two young girls has to be scrutinised with great care. They are young and impressionable. There is also no independent corroboration of their story. However, it is inconceivable that they could have manufactured in detail such a complex set of facts and to have related it to their grandmother and to the Court both consistently and without any discernable discrepancies. This is the more so despite a forceful, vigorous cross-examination by the appellant.
I have no doubt that as to the first question posed above; i.e. whether appellant did sexually assault the complainant, the answer is that the evidence established beyond a reasonable doubt that he did so.
The second question is more difficult to answer. As would appear from the responses of the complainant she was clear that “penetration”, as she understood the term, did not occur. Nevertheless she repeatedly asserted that appellant put his penis into her vagina. The dilemma faced by the court below is apparent from the judgment of the court a quo. In it the court says the following:
“There has been one problem worrying in mind, that is an answer by the complainant to the accused’s question that he did not penetrate her. Looking at the doctor’s report and also the evidence of complainant herself in her evidence in chief, she said in no uncertain terms that the accused penetrated her at least three times. I am convinced that notwithstanding the answer which was given by the complainant to the accused, it is clear to me that the accused did infact penetrate the complainant. This has been supported by Miss Nderi’s submission that even the slightest penetration suffices for purposes of rape and the fact that no sperms were found after the examination of the complainant’s private parts does not necessarily mean that the rape did not take place. I would accept that perhaps because of the disgusting act the complainant felt she should say she had not been penetrated. And also as Miss Nderi has correctly pointed out in my view that because of her age and inexperience in such matters as having sexual intercourse she could not have taken this to mean she was not penetrated in the true sense of the word because she knows nothing about this.”
With respect to the Judge below, I find this reasoning unacceptable. The fact that the complainant is inexperienced and unable to differentiate, does not entitle the court to give a different meaning to the word “penetrate” than its ordinary meaning. Whilst therefore it is certainly possible that some penetration did occur despite the complainant’s evidence to the contrary, it would not be justified to find this as having been proved beyond a reasonable doubt.
In my view the Crown failed to prove that appellant committed the crime of rape. However, he clearly attempted to rape this young girl. He abused the trust of the family of the complainant had in him and he attempted to violate a little girl of 12, causing her serious psychological damage. I believe he deserves a lengthy period of incarceration.
In the result the appeal succeeds in as much as the conviction on a charge of rape is set aside. In its place the appellant is convicted of attempted rape. Appellant is sentenced to seven (7) years’ imprisonment. The sentence of 12 years’ imprisonment is set aside.
_________________________
J.H. STEYN JA
I agree :
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J. BROWDE JA
I agree :
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P.H. TEBBUTT JA
Delivered in open Court this …….. day of May 2000.
