Maseko v R (8/11) [2011] SZSC 18 (31 May 2011);

 

 

IN THE SUPREME COURT OF SWAZILAND

 

 

HELD AT MBABANE                  CRIMINAL APPEAL CASE NO: 08/11

 

In the matter between:

NDUMISO OBERT MASEKO                               APPELLANT

 

AND

 

THE KING                                                            RESPONDENT

 

CORAM:                                                               RAMODIBEDI, CJ

                                                                             MOORE, JA                                                                                               TWUM, JA

 

DATE OF HEARING:                                           4^th MAY 2011

DATE OF JUDGMENT:                                        31^st MAY 2011                       

COUNSEL DEFENCE                                        APPELLANT IN PERSON

COUNSEL FOR CROWN                                            MR. A. MAKHANYA

 

Summary

 

Criminal Law and Procedure – rape of 13 year old female by uncle; - trial before Magistrate at Simunye; - corroboration, evidence of complainant’s father who witnessed the rape; - offence accompanied by aggravating circumstances – section 185 ibis of Criminal Procedure and Evidence Act 67 of 1938, as amended; - Conviction by trial Magistrate; - accused referred to High Court for sentencing, (SS292, 293 of the Criminal Procedure and Evidence Act); - Procedural defects in trial by Magistrate; - Directive by High Court Judge, Magistrates to be given transcript of the defects in the proceedings to avoid future pitfalls. High Court Judge confirmed conviction; appellant sentenced to 13 years imprisonment; Appeal against conviction and sentence to Supreme Court of Appeal.  Appeal dismissed.

 

 

 

JUDGMENT

DR. S. TWUM  J.A.

 

[1]    This is appeal from the judgment of Annandale J. sitting at the High Court, Mbabane, dated 1^st June 2010.  The matter came to the High Court Judge as a referral from the Magistrate sitting at Simunye, under SS.292 and 293 of the Criminal Procedure and Evidence Act, 67/1938 as amended.

 

[2]    The particulars of the offence were that in or about the 6^th of October, 2009, the appellant unlawfully and intentionally had sexual intercourse with Nokuthula Maseko, a minor female of 13 years without her consent.  It was further alleged that the rape was accompanied by aggravating circumstances as envisaged by section 185 ibis of the Criminal Procedure and Evidence Act 67/1938 as amended.

 

[3]    The Trial

The appellant was arrested and charged as particularized above.  He pleaded not guilty and was tried before the Magistrate sitting at Simunye.   The following salient and relevant facts were disclosed by the evidence.

 

 

 

[4]    The Facts

On 6^th October, 2009, Nokuthula Maseko, the complainant (hereinafter, “PW1”) resided at Mafucula with her father, Mhlupheki Maseko, her mother, Ntombi Msibi, and her brother, Mduduzi Maseko, aged 8 years.  She was 13 years, having been born on 2^nd July 1996.  She attended Hlamkeni Primary School at Mafucula.  She was in Standard 3.

 

PW1 testified that at about 6.30 am in the morning of 6^th October, 2009, she was at home with her brother Mduduzi Maseko and Majahanele Maseko, the appellant.  She had prepared fire to boil water to have a bath.  She was going to school.  She said one Thulani Maseko went to her and told her that her uncle, the appellant, wanted Mdu’s cell number.  She said her uncle, was then in his parental home outside, next to another house.  She shouted the number to him and he recorded it.  She wrote the number on her left hand as requested by the appellant.  She said the appellant called her and said he wanted to see the number.  She went to his house.  There, she gave him the number.  She said the appellant took the pen from her.  He pretended to hand it back to her but as she tried to take it from him, he grabbed her on her left hand, pulled her, picked her up and lay her on his bed.  She said she told him to leave her alone.  She tried to bite him on his chest to free herself but to no avail.  Rather he pinned her down on the bed.  She was wearing no underwear.  She was lying on her back on the bed.  She said the appellant lifted up her skirt and lay on top of her.  He then removed his belt from his jean trouser, opened the zip, brought out his penis and inserted it in her vagina and succeeded in ravishing her.

 

[5]    PW1 said while this was going on her father arrived from work.   He stood at the door to the appellant’s home and watched what was going on.   She told the appellant to stop what he was doing but he continued.  She said her father entered the room.  He asked the appellant what he was doing to her as he found them still engaged in the act.  She said the appellant tried to apologize to her father who told him that he would report the matter to the Maseko family.

 

[6]    PW1 continued her evidence in chief by saying that during the sexual act something came out from the appellant’s penis into her vagina. It was white in colour and sticky.  She said she had learnt about condoms from school.  She said the appellant did not use a condom.  She confessed that that was not the first time her uncle had made sexual advances to her.  She said he had tried to rape her before but he did not fully succeed.  She said she resisted him then.  She added that she had no reason to fabricate this offence against him.  She said before the incident their relationship was smooth.

 

[7]    In her cross-examination, PW1 denied that she was not a truthful witness. She also denied half-hearted plea of alibi from the appellant that on the day of the incident he was not at home.  She insisted that he was.  She also denied that she was schooled by her parents, especially her father, to lie to the court about him.  Asked by the appellant if she shouted when he grabbed her, she replied by saying that she rather cried out aloud.  Curiously and significantly, he did not ask her any question about her evidence that the appellant was caught red-handed by her father raping her; or that he followed her father and apologized to him.

 

[8]    The complainant’s father, Mhlupheki Maseko (PW2) gave evidence which corroborated PW1’s evidence in all material respects.  His testimony was short, clear and given without emotion.  He said the appellant was his brother.  They had the same father but different mothers.  He said he returned from work on the 6^th October, 2009, at 6.00 am to be greeted by a sordid and nauseating spectacle – the appellant was busily making love to his daughter, PW1.  He asked the appellant why he was treating her daughter as his wife as he was making love to her.  He said the appellant reluctantly stopped his dastardly act and followed him as he walked away from the appellant’s room.  The appellant apologized to him.  He cross-examined PW2, who rebuffed a suggestion from the appellant that there was a conspiracy between him and PW1 to frame him with the crime.  PW2 said the matter was reported to the police.  The victim was taken to hospital the same day for treatment.  A medical report was also issued on PW1.

 

[9]    The investigation officer who testified as PW3 stated that on the 6^th October 2009 the police received a report of rape.  He said he got a radio message from Constable Dludlu to the effect that the suspect, i.e. the appellant was trying to escape to South Africa through Mananga border gate.  He said he called D/Constable Dlamini based at Mananga. A few minutes later, the appellant was arrested and taken to the police station.

 

[10]  When the appellant was charged with the offence, he pleaded that he was not guilty.  He admitted that he was arrested at the Mananga border gate. He denied making love to PW1 and suggested that the entire prosecution was due to a feud which existed between him and PW2.  He said that explained why PW1 had been schooled by PW2 and the Prosecutor to lie to the court and frame him with the offence.

 

[11]  As has been pointed out above, the appellant was tried before the Magistrate at Simunye and was convicted as charged. On account of his limited sentencing jurisdiction the appellant was referred to the High Court, Mbabane for sentencing pursuant to SS.292 and 293 of the Criminal Procedure and Evidence Act 67/1938, as amended.  The record shows that the learned High Court Judge carefully examined the record of proceedings in the Magistrate’s court and noted a number of irregularities as will hereinafter be particularized.

 

[12]  When the appellant appeared before the High Court Judge, His Lordship asked him whether he had received a copy of the record of proceedings in the Magistrate’s court and he confirmed that he had. Next, His Lordship advised him that he was entitled to be represented by a lawyer in the sentencing proceedings.  The appellant said he would speak for himself.  His Lordship then proceeded to go through the evidence taken at the court a quo with the appellant.

 

[13]  The learned Judge said he had some problem with the fact that the complainant gave her evidence in the Magistrate’s chambers.  He said the Magistrate did not make any order as to whether the proceedings were to be held in camera or behind closed doors.   He said the prosecutor did not request that the proceedings be held in camera or behind closed doors and the Magistrate did not state any reason why the evidence of PW1 was not taken in open court.  He opined that that irregularity offended against the rule that criminal proceedings should be conducted in open court unless there were special circumstances noted on the record.  Further, His Lordship stated that he was unsure if the Magistrate really satisfied himself that PW1 understood the difference between what was truth and what was not.  Indeed, he said he was not sure whether the complainant took an oath or gave her evidence on affirmation.

 

[14]  The learned High Court Judge next took the appellant through the evidence of PW1 particularly in relation to how she said she was raped and the point where PW2 caught the appellant red-handed, as His Lordship put it, “ravaging his needs”.   His Lordship told the appellant that his brother surprisingly walked calmly away from that dastardly act.  He told the appellant that the record showed that after he had finished his fiendish act, he got up from the complainant and followed his brother and tried to apologize to him.  He recounted the evidence of PW1 to the effect that after she had been ravaged by the appellant, some white substance was emitted from his male organ and she also saw some of that substance on her private parts which she rubbed off.  Finally, His Lordship told the appellant that in her evidence the complainant said she knew what a condom was.  She said the appellant did not use a condom.

 

[15]  The appellant was given an opportunity to comment on the evidence.  He was told he could give further evidence in elaboration of his defence to the charge.  The record shows that the appellant did not come across as someone who was vigorously challenging the evidence of PW1 directly involving him in a serious crime.  He did not raise a defence sufficient to absolve him from being the perpetrator of the crime.  He put it to PW1 that she had been schooled by her father and the prosecutor to lie to the court.  But no evidence was led to substantiate that line of cross-examination.  He did not even suggest to PW1       that he never had any intercourse with her that day; nor did he challenge her identification of him as her uncle who stays close by from time to time.

 

[16]  In my experience, this is a most thorough examination of the record of the proceedings of a Magistrate’s court during a criminal trial pursuant to section 293 of the Criminal Procedure and Evidence Act, 67/1938 as amended.  Yes, various defects or anomalies were detected by the Learned High Court Judge but he stated unequivocally that despite the said defects or anomalies, he was in no doubt whatsoever that the prosecution proved its case against the appellant beyond any reasonable doubt and that the appellant was guilty as charged.

 

[17]  In prosecutions of sexual offences, one major hurdle the prosecution must surmount in order to secure a conviction, is corroboration.  Incasu, the evidence of PW2 was so cogent and corroborative of PW1’s evidence of the rape that in my opinion if the trial Magistrate had returned any verdict other guilty, it would have been perverse.

 

        I have combed the record with the detachment I am able to muster and I entirely agree with the conclusion reached by the learned High Court Judge that the trial Magistrate correctly convicted the appellant of the offence he was charged with.  I also affirm the sentence of 13 years’ imprisonment imposed on the appellant, particularly, as he showed no remorse.  The sentence of 13 years imprisonment is within the range between 11 and 18 years laid down by this court in Ngubane Magagula v. The King Criminal Appeal No. 32/2010. Further, he should count himself lucky that PW2 maintained his composure and did not succumb to a natural urge to attack him violently when he came upon him unexpectedly, raping his daughter.

 

[18]  The order of this Court is that:

 

(1)    The appeal against conviction and sentence is dismissed as unmeritorious.

 

(2)    The sentence of 13 years’ imprisonment meted out to the appellant is hereby confirmed.

       

DELIVERED IN OPEN COURT AT MBABANE THIS 31^ST DAY OF MAY 2011.

 

 

 

                                                                    DR. SETH TWUM

                                                                    JUSTICE OF APPEAL

 

 

 

I agree:                                                        M.M. RAMODIBEDI

                                                                   CHIEF JUSTICE

 

 

 

I agree:                                                        S.A.  MOORE

                                                                   JUSTICE OF APPEAL