IN THE SUPREME COURT OF SWAZILAND
CRIMINAL APPEAL NO.36/2010
HELD AT MBABANE
In the matter between:
SIBUSISO MAKOSH-KOSH DLAMINI APPELLANT
AND
REX RESPONDENT
CORAM : RAMODIBEDI, CJ
DR. TWUM, JA
FARLAM, JA
HEARD : 3 MAY 2011
DELIVERED : 31 MAY 2011
SUMMARY
Criminal law – Rape – Appellant convicted of rape by a Magistrate Court – Committal to the High Court for sentence in terms of s292 of the Criminal Procedure and Evidence Act 1938 – the High Court confirming the conviction and sentencing the appellant to 12 years imprisonment – Appeal against both conviction and sentence dismissed.
JUDGMENT
________________________________________________________________________
RAMODIBEDI, CJ
[1] The appellant has appealed to this Court against a conviction for rape recorded by a Magistrate’s Court and subsequently confirmed by the High Court. He has further appealed against a sentence of 12 years imprisonment recorded by the High Court (Annandale J) following his committal to the High Court for sentence in terms of s292 of the Criminal Procedure and Evidence Act 1938. The sentence was backdated to 7 October 2009.
[2] It was alleged in the charge sheet that upon or about 1 October 2009 and at or near Mkhokhi area in the Lubombo District, the appellant wrongfully, unlawfully and intentionally had sexual intercourse with Khetsiwe Sikhondze a female aged 22 years without her consent. The appellant, who conducted his own defence, pleaded not guilty to the charge.
[3] The complainant, Khetsiwe Sikhondze, testified for the prosecution as PW1. She said that she was the appellant’s girlfriend before the incident giving rise to the charge. It was her evidence that on the night of 1 October 2009, she was selling cigarettes at Kamvelo Bar. The appellant called her but she refused to go to him. He then dragged her by her jacket to his house. She raised an alarm along the way but to no avail. He then slapped her across the face with an open hand on two different occasions. To crown it all, the appellant raped her, not once but twice during the night inside his house. She was pregnant at the time.
[4] Thando Nokuthula Mtsetfwa (PW2) provided crucial corroborative evidence in support of the prosecution case. She stayed with the complainant who is her sister-in-law. She testified that on the morning following the attack on the complainant she saw the latter emerge from the gate “with her hands on the face crying.” She said that the complainant kept screaming, “kosh-kosh” – no doubt referring to the appellant. Indeed, the complainant finally told PW2 that the appellant had raped her. Crucially, the appellant did not cross-examine this witness. There is, therefore, no basis to doubt the veracity of this damning piece of evidence against the appellant.
[5] The appellant gave evidence in his own defence. He admitted having had sexual intercourse with the complainant but claimed that it was consensual. He further admitted assaulting her but he said that this was because she was in love with someone else.
[6] The appellant’s own witness, Vusi Gamedze, gave damaging evidence against him. He confirmed that he heard the complainant crying while she was in the company of the appellant inside the house. In my view this piece of evidence provides ample corroboration of the complainant’s lack of consent in the circumstances. But the damage goes further. Under cross-examination Vusi Gamedze said the following:
“A. I met the accused in the morning around 8.00-9.00am and he told me that the girl is going to lay a charge against him because she has not agreed to come with him at home.”
[7] It is trite that the evidence of a complainant in a sexual offence such as rape requires to be treated with caution. The trial court should warn itself of the danger inherent in convicting on the uncorroborated evidence of the complainant. This principle is designed to ensure that innocent people are not convicted for crimes they have not committed but which are simply a fabrication which may in turn be motivated by various reasons.
[8] In the present case I consider that there is simply no danger of a wrong conviction. As will be recalled, it is not disputed that the complainant reported the alleged rape to PW2. She was crying as she did so. As this Court said in Roy Ndabazabantu Mabuza v The King, Appeal Case No. 35/02 (unreported) it is trite that evidence of a complaint by a victim in a rape case is always admissible. In any event, I repeat for emphasis that the appellant’s own witness, Vusi Gamedze, provided sufficient corroboration to the effect that the complainant was heard crying while inside the appellant’s house. This evidence provides ample proof that the complainant did not consent to sexual intercourse.
[9] It follows from the foregoing considerations, in my view, that the appellant was correctly convicted of rape. I turn now to sentence.
[10] As a matter of first principle I consider that in determining an appropriate sentence it is the duty of the trial court to take into account the triad consisting of the offence, the offender and the interests of society. This obviously involves a balancing exercise between these competing interests. Properly executed, the balance in turn invariably leads to a balanced sentence to which there can be no valid objection to be made in law.
[11] This Court has repeatedly stressed that the imposition of sentence is a matter which lies within the discretion of the trial court. An appellate court will ordinarily not interfere with sentence imposed by the trial court in the absence of a material misdirection resulting in a miscarriage of justice. This principle is now so well-established in this jurisdiction that it is hardly necessary to cite any authority.
[12] No misdirection has been shown to exist in the present matter. The court a quo duly took into account the triad referred to in paragraph [10] above. In my view, the sentence of 13 years imprisonment was fully justified in the circumstances. Appropriately stiff sentences in rape cases are called for in order to curb the scourge of soaring statistics of rape offences in this country.
[13] In the result the appeal is dismissed. Both conviction and sentence are confirmed.
___________________________
M.M. RAMODIBEDI
CHIEF JUSTICE
I agree __________________________
DR. S. TWUM
JUSTICE OF APPEAL
I agree ___________________________
I.G. FARLAM
JUSTICE OF APPEAL
For Appellant : In person
For Respondent : Miss L. Hlophe
