IN THE SUPREME COURT OF SWAZILAND
HELD AT MBABANE CRIM. APPEAL NO. 21/2010
In the matter between:
CORAM : A.M. EBRAHIM J.A.
: DR. S. TWUM J.A.
: I.G. FARLAM J.A.
FOR THE CROWN : L. HLOPHE
FOR THE APPELLANT : IN PERSON
Criminal Appeal – conviction reduced from rape to c/s 3(1) of the Girls’ And Women’s Protection Act 1920 – Criminal Procedure – Evidence – of children – Proper approach to a consideration thereof – Evidence of a single witness – Cautionary rules relating to sexual offences – Whether Court may take into account what said in mitigation after conviction
 The appellant was convicted by a magistrates court of rape. The charge sheet alleged that on 29 March 2009 he unlawfully had sexual intercourse with a 12 year old girl without her consent. It was further alleged that the offence was committed in aggravating circumstances as defined in s 185 bis of the Criminal Procedure and Evidence Act 67 of 1938, in that:
(a) when he committed the offence, the appellant did not use a condom, thereby putting the girl at risk of contracting a sexually transmitted disease;
(b) the girl, being a minor, was incapable of consenting;
(c) the appellant destroyed the virginity of the victim;
(d) the appellant breached the trust the victim had in him as a relative.
 The last two issues can be disposed of rightaway. The appellant was not a relative at all; he was the boyfriend of the girl’s mother, with whom he been having a liaison for a few months. In her evidence in chief, the girl said that she had been raped on a previous occasion. No details were given.
 The evidence against the appellant on the completion of the hearing before the magistrate was in my view rather thin.
 The complainant related how early one morning the appellant had sexual intercourse with her where she lay on the floor under the blanket which had covered her. Her mother was away at work. Only the complainant’s infant sister was present. The appellant promised to give her some money. When her mother came back that evening, the complainant made no report to her. The mother, in her evidence, stated that when she got home the complainant was not at the house. The appellant was there, and said that the complainant had gone to play. When the complainant returned at about 1800, she was asked by her mother why she was late and why she had not done her chores, to which the complainant did not respond. The witness found this unusual as the complainant normally would answer her mother’s questions. The complainant said that she was scared to report the matter to her mother.
 The following day, the appellant drove the complainant to school. She says that he promised he was going to fetch money, but it seems he never did. At school, the complainant wrote a note to her class teacher, requesting him to talk to her mother as she herself was too scared to tell her mother that she had been raped by her mother’s boyfriend. The teacher, who was called as a Crown witness, confirmed the fact that the note was handed to him and identified it.
 In cross-examination, the complainant admitted being happy that she was to have a father. She said that she agreed to go to school with the appellant because she was scared. She also said she was scared of her mother and of the teacher.
 The police were called and the complainant was taken to a hospital for a medical examination. I will deal with the medical evidence later on.
 On the same day, the appellant went to South Africa, where he remained until 25 April. On his return to Swaziland, he was arrested. Evidence was led of the appellant’s arrest and how he was subsequently taken by the police for medical treatment as he was complaining of being unwell. The relevance of this medical evidence is not clear; it adds nothing to the case against the appellant and one wonders why it was led. Similarly, the evidence of arrest is irrelevant; it adds nothing to the case against the appellant.
 The medical report about the examination of the complainant was produced, by consent, as an exhibit. The report was read to the appellant, who was told that if he needed the doctor to be called, that would be done. The appellant is recorded as saying that there was nothing to clarify and that he would not need the doctor to be called.
 The report concluded that “sexual abuse” could have occurred, though obviously the doctor could not say who the perpetrator might have been. In my view, the magistrate erred in failing to insist that the doctor be called. “Sexual abuse” is too vague a term to be conclusive or even helpful. The term encompasses acts other than sexual intercourse. Clearly, there was much to be clarified in the report, in particular, not only what form the sexual abuse took, but when it occurred.
 The only evidence supporting the complainant, then, is the evidence of the mother and the evidence of the complaint made to her teacher, possibly supported by the medical evidence.
 At the trial the appellant made an unsworn statement. His story was a complete denial of any sexual assault. He said that before the alleged rape he had bought shoes for the complainant’s younger brother but not for the complainant; she had, it seems, refused to accept shoes from him because he was not her father. He said that on the day of the offence he had woken her up to get her to do her chores. She had refused to do them, and later went out for most of the day. He related how the next day, after taking the complainant to school, he went to South Africa.
 At the end of the evidence, one is left in some doubt. The complainant was not innocent, irrespective of her age. She had previous sexual experience. She knew all about condoms. The court should have asked her for some details about her previous sexual encounter(s). She described it as rape. When did it occur? Who was the perpetrator? Could the medical evidence have been equally relevant to that incident? Is the complainant blaming the appellant for something that someone else did? What was she up to all day, after the alleged rape? Was she with a boy friend? We just do not know.
 This is not to say that the appellant is innocent, but at that stage of his trial that there must be, at least, some doubt. At the trial after the completion of the evidence the appellant was committed for sentence to the High Court in terms of section 293 (3) of the Criminal Procedure and Evidence Act 67/1983 as amended which provides as follows:
“if any person is brought before the High Court in accordance with subsection (2) such court shall enquire into the circumstances of the case and, if after consideration of the record, it is satisfied of the accused’s guilt, it shall thereafter proceed as if such person had pleaded guilty before it in respect of the offence for which he has been so committed.”
 In the case of the STATE V RAMATSWIDI  1 B.L.R. 452 at para G – H it was stated:
“it would appear to me that the object of this section is to enable this court to consider the evidence on the record and the judgment of the court a quo and to make up its own mind as to whether the conviction was in the circumstances proper. This court is not bound by the finding of the trial court in relation to the question of the accused’s guilt …the court is in my view entitled to assistance although the question of whether it is satisfied on the correctness of the conviction must solely rest with this court.”
 There are further weaknesses in addition to those outlined above, in the way the learned magistrate dealt with this matter.
 The complainant in this case was for all intents and purposes a single witness in relation to the incident in which she was embroiled with the appellant. There is nothing to suggest in the magistrate’s judgment that she took the required precautions when considering the evidence of this “single witness.” See R v Mokoena 1932 O.P.D. 79; R v Bellingham 1955 (2) S.A. 566 (A.D.)
 Furthermore she does not appear to have applied her mind to the cautionary rule when considering children’s evidence. In the case of R. v. MANDA 1951 (3) S.A. 158 at 163 at para C to F. SCHREINER, JA. stated as follows:
“The imaginativeness and suggestibility of children are only two of a number of elements that require their evidence to be scrutinized with care amounting, perhaps to suspicion. It seems to me that the proper approach to a consideration of their evidence is to follow the lines adopted in the case of accomplices (Rex v. Ncanana, 1948 (4) S.A. 399 (A.D.)) and in the case of complaints in charges of sexual assault (Rex v. W., 1949 (3) S.A. 772 (A.D.)). The trial court must fully appreciate the dangers inherent in the acceptance of such evidence and where there is reason to suppose that such appreciation was absent a court of appeal may hold that the conviction should not be sustained. The best indication that there was proper appreciation of the risks is naturally to be found in the reasons furnished by the trial court.”
 See also Eric Makwakwa v R Cr. A 2/2006.
 It is also apparent from the evidence that the complainant was 12 years and 2 months old, just over the age of consent. So legally she could have consented to having sexual intercourse with the appellant – which would have the effect of making the offence one of sexual relations with a young person rather than rape. I will deal with what the appropriate charge, should a conviction be returned on the facts of the case, later in this judgment.
 The trial magistrate also made no mention in her judgment of the cautionary rule on sexual offences although the need for her to have done so has to some extent fallen by the wayside. In the case of S v J 1998 (1) SACR 470 (SCA) OLIVIER JA on behalf of all members of the FULL BENCH stated:
“In my view, the cautionary rule in sexual assault cases is based on an irrational and outdated perception. It unjustly stereotypes complainants in sexual cases (overwhelmingly women) as particularly unreliable. In our system of law, the burden is on the state to prove the guilt of an accused beyond reasonable doubt – no more no less. The evidence in a particular case may call for a cautionary approach, but that is a far cry from the application of a general cautionary rule.”
 In the case, however, of S v VAN DER ROSS 2002 (2) SACR 362 (C) the Court sounded the following caveat regarding the abolition of the cautionary rule.
“The judgment in S v J 1998 1 SACR 470 (SCA) does not mean that trial courts are free to convict in an indiscriminate and reckless manner where the charge is of a sexual nature. It also does not mean that in those cases courts no longer have to be cautious. On the contrary, criminal courts should be encouraged to exercise extreme caution before they convict people on serious charges, such as rape.”
 The issue of the cautionary rule relating to sexual offences in Swaziland was dealt with by ZIETSMAN J.A. in SANDILE SHABANGU v THE KING CA 15/07 [available on the internet on the Swazi Legal Information Institute Website] at pages 8 and 9 where he stated:
“In the present case the trial judge (Mamba J) adopted the reasoning in the Jackson case and came to the conclusion that the cautionary rule in sexual assault cases is outmoded and should no longer be part of the law of Swaziland. I agree. My conclusion is that the approach set out in the Jackson case [ S v J, supra] is to be applied in Swaziland. The evidence in a particular case may call for a cautionary approach but there is no general cautionary rule applicable to the evidence of complainants in rape cases.”
 This does not mean that the nature and circumstances of the alleged sexual offence need not be considered carefully.
 In the case of SEREMILWE v THE STATE  BLR 223 at 225 KORSAH JA noted:
“it often has been stated, in offences of a sexual nature, the complainant must first be found to be a credible witness otherwise the case against the accused cannot proceed further. One of the tests usually applied in assessing the credibility of a victim is whether the complaint has been made without undue delay but at the earliest opportunity which, under all the circumstances, could reasonably be expected to make it…”
See also S v BANANA 2000 (3) SA 885 (25) at 895 E - G.
 A further weakness in the judgment of the learned magistrate was her assertion that it was unlikely that seven witnesses called by the Crown in support of its case against the appellant had somehow agreed to fabricate their evidence against him. The appellant in his unsworn statement did not assert that the seven witnesses for the Crown had conspired to fabricate the case against him. On the appellant’s version of events he said that the only witness whose evidence was untrue was the complainant herself. In my view the magistrate therefore misdirected herself in concluding in her judgment that the appellant’s version of events was highly improbable in the light of the evidence of the seven witnesses and as a result this had corroborated the allegations against him.
 The learned judge a quo before whom this matter came for in terms of section 293 (3) of the Criminal Procedure and Evidence Act 67/73 confirmed the conviction and held that the magistrate had not misdirected herself. He then proceeded to deal with the issue of sentence.
 It is at this stage the appellant whilst pleading made the following statements:
“My stay in prison has taught me a lesson. I have learnt a lesson to respect females regardless of age, that I should treat them with respect and dignity. I have also learnt a lesson that females are not sexual objects where one can just relieve himself as long as he gets money. (my underlining)
My Lord it is a lesson I have learnt that it is not right. My Lord I have also learnt a lesson that when I get out of prison, when I go back home, I have to respect females – when I go back home, my arrest and stay in prison is what I will be talking about to my colleagues and other males back home telling them that committing a crime like the one I have committed is not good - . (my underlining)
My Lord as this case was also reported in the newspapers, I take the opportunity to apologise to all the females in the country, Swaziland in what I did my Lord. I was the one who was supposed to take control of the situation -.(my underlining)
These then are the litany of weaknesses I have gleaned from the record of this matter.
 What regard, then, can be taken of these statements he made before the learned judge a quo in the High Court? What then is he admitting to? To rape (in the sense of forcing himself on the complainant)? To have intercourse with this young girl with her consent? In my view his remarks could certainly be construed or an admission of the latter in contravention of section 3 (1) of the Girls’ and Women’s Protection Act, 1920 which provides for as follows:
“3. (1) Every male person who has unlawful carnal connection with a girl under the age of sixteen years or who commits with a girl under that age immoral or indecent acts or who solicits or entices a girl under such age to the commission of such acts shall be guilty of an offence and liable on conviction to imprisonment not exceeding six years with or without whipping not exceeding twenty-four lashes and with or without a fine not exceeding one thousand Emalangeni in addition to such imprisonment and lashes.”
 In the case S v VAN WYK 1997 (1) SACR 345 (T) appears the following passage in the Headnote:
“The appellant noted an appeal against his conviction on count number 7, a count of housebreaking with intent to steal and theft, and against the sentences which had been imposed on him as well as the cumulative effect thereof.
With regard to the conviction on count number 7, the Court on appeal requested additional heads of argument on the question of whether evidence in respect of mitigating circumstances could be utilized on appeal in support of the conviction and whether concessions made by accused’s advocate in his submissions on sentence could be used on appeal in support of the appeal. This request referred to certain evidence which a co-accused had led in mitigation of sentence which implicated the appellant in the commission of the offence in count number 7 and to certain concessions which the appellant’s advocate had made prior to sentencing. The Court applied the law as it was before the amendment of s 277of the Criminal Procedure Act by s 4 of Act 107 of 1990. The Court was of the opinion that in certain circumstances, with due regard to the possibility of prejudice to the accused, from the point of view of common sense, there was merit in looking back on appeal at the evidence as a whole, including that which ensued after conviction. (Emphasis added) The Court held however that the admission of liability by the appellant, whether by the action of his advocate or by his own conduct in not giving evidence under oath, was covered by the rationale in S v Mooi 1990 (1) SACR 592 (A) at 610 I and the Court on appeal was accordingly not entitled to take account of such admissions in support of the conviction or otherwise. The Court added however that this was a matter which in the future ought to be reconsidered.” (emphasis added)
 In his work John Reid Rowland Criminal Procedure in Zimbabwe, chapter 25 at p 27 states:
“Facts arising since the trial would seldom, if ever, be of relevance to conviction; but if they ever could be the practice is that, apart from exceptional circumstances (such as, for instance, cases involving the interests of children), the judgment of the trial court is regarded as right or wrong according to the circumstances which were in existence at the time. However, as explained below, when it comes to sentence, the appeal court may take into account events which occurred after the date of sentence. It is no longer correct to say that any mitigating factors, for example, which have since come into existence are a matter for the executive to take into account in exercising its prerogative of mercy: R v Verster 1952 (2) SA 231 (A); R v Mudzivereyi 1963 R & N 255; 1963 (3) SA 80 (SR): S v Watungwa 1976 (2) RLR 158 (A); S v Seedat 1977 (1) RLR 102 (A).”
Further on, at p 27, it is stated:
“In an appeal against sentence, the appeal court must, if it thinks that a different sentence should be passed, quash the sentence passed at the trial and pass such sentence as it thinks ought to be passed. In so doing, the court may take account of events which have occurred since the conviction and has a discretion, additional to that of the trial court, to pass such sentence as it thinks is just and equitable, having regard to all the circumstances obtaining at the date of the appeal: S v Hawa 1981 ZLR 526 (S).” (emphasis added)
 If mitigating factors that have come into existence after sentence has been passed may be taken into account by an appeal court, so too should aggravating ones. The latter could presumably not be used to justify an increase in sentence on appeal, but could justify declining to reduce the sentence. Similarly, if facts that have come into existence after conviction may be used to cast doubt on the conviction, there is no logical reason why any facts arising since the trial should not be used to remove doubts about the conviction. Thus, in principle, I see no reason why a confession made after the trial – provided it is made in circumstances which do not permit of any doubt as to its genuineness and voluntariness – should not be taken into account by an appeal court in satisfying itself that a conviction is in order. To exclude such a confession would be wholly artificial and illogical and would be very hard to explain to the man in the street. In this case, the confession (to some sexual demeanour) was made to the judge who passed sentence, so there can be no question of doubting its voluntariness. It does support the complainant’s story. So on that basis, I believe the statements he made should be taken into account and I accordingly do so. This, then, would satisfy a conviction of section 3 (1) of the Girls’ and Women’s Protection Act, 1920 and I so find:
 The appellant now stands convicted of a less serious offence than rape though the aggravating features are the relative age of the appellant to the age of the complainant, and the fact that he was her mother’s boyfriend. He is old enough easily to be a father. The mitigating features if one call them that would be that the offence occurred only once and because her prior sexual conduct the complainant was no innocent.
 The penalty provided for under the Girls’ and Women’s Protection Act is imprisonment not exceeding six years with or without whipping not exceeding twenty four lashes and with or without a fine not exceeding one thousand Emalangeni in addition to such imprisonment and lashes.
 Having regard to serious features of this case and the mitigating features I am of the view that a sentence of five years imprisonment would meet the justice of the case.
 Accordingly the conviction and sentence is set aside and substituted with a conviction of contravention section 3 (1) of the Girls’ and Women’s Act, 1920 with a sentence of five years imprisonment.
 In conclusion I wish to express the hope that if at some stage in the future the issues raised both in my judgment and that of my Brother Farlam comes before this Court for decision an opportunity for a more detailed examination and analysis of the issues raised in this matter will present itself. I would also draw the attention of the investigation, prosecution and finally the judicial organs to take note of some of the flaws and pitfalls which have emerged during the course of this case and to take guidance from what we have said in our judgment.
 The following order is made:
The conviction and sentence is set aside and substituted with a conviction of contravening section 3 (1) of the Girls’ and Women’s Protection Act, 1920 and a sentence of five years imprisonment is substituted.
JUSTICE OF APPEAL