IN THE SUPREME COURT OF SWAZILAND
CRIMINAL APPEAL No. 01/2011
HELD AT MBABANE
In the matter between:
VUSUMUZI LUCKY SIGUDLA APPELLANT
AND
REX RESPONDENT
CORAM : RAMODIBEDI, CJ
EBRAHIM, JA
MOORE, JA
HEARD : 16 MAY 2011
DELIVERED : 31 MAY 2011
SUMMARY
Criminal law – Rape – The appellant indicted in the High
Court on two counts of the rape of two young girls aged 6 years and 4 years respectively – Corroboration – Cautionary approach satisfied – Conviction and sentence confirmed – Appeal dismissed but part of the sentence ordered to run concurrently in order to ameliorate the harshness of the cumulative sentence of 26 years imprisonment imposed by the High Court.
RAMODIBEDI, CJ
[1] The appellant was indicted in the High Court on two counts of rape involving young girls aged 6 years and 4 years respectively.
[2] It was alleged in respect of count 1 as amended that on or about 10 November 2009, and at or near Mpofu area in the Hhohho District the appellant intentionally had unlawful sexual intercourse with Tandzile Nkonyane, a girl aged 6 years as pointed out in the preceding paragraph.
[3] Insofar as count 2 was concerned, it was alleged in the indictment that on or about 29 August 2009, and at or near Lugandvuleni area in the Manzini District the appellant intentionally had unlawful sexual intercourse with Takhona S’celimpilo Dladla, a girl aged 4 years as stated earlier.
[4] After hearing evidence in the matter the High Court (Annandale J) found the appellant guilty as charged on both counts. He sentenced him to 13 years imprisonment on each count. The sentences were ordered to run consecutively, thus amounting to an effective sentence of 26 years imprisonment backdated to 10 November 2009.
[5] Briefly stated, the evidence in respect of count 1 disclosed the following. The complainant in count 1, Tandzile Nkonyane (PW3), gave evidence through an intermediary in terms of s223 bis of the Criminal Procedure and Evidence Act 1938. As the section provides, this was to ensure that the child in question would not be exposed to undue mental stress or suffering when testifying in the case. She testified that she was 6 years old. She was doing Grade 1 at school. On the day in question she was in the company of her playmate called Bhuti, playing by the roadside. The appellant called them and sent Bhuti away to a certain shop to buy chips. She remained with the appellant, who then took her to a nearby bush under the pretext that she must pick mangoes for him. It was there that he raped her. She remained unshaken in cross-examination.
[6] In his evidence Mchumanisi Mabuza, alias Bhuti (PW6), a seven year old boy confirmed PW3’s evidence that while they were playing, the appellant sent him to a certain shop to go and buy chips. The appellant remained behind with PW3. Subsequently, the appellant sent him on another false errand to go and pick mangoes for him.
[7] Bhuti’s mother, Jane Vilankulu (PW7) also testified that on the day in question she saw the appellant, who was carrying a slingshot, proceed to a nearby forest in the company of the complainant in count 1, Bhuti and one Mukelo. She followed them out of curiosity but could not see them. She later met Bhuti and Muleko minus PW3 who had remained with the appellant in the forest. She subsequently met PW3 who confirmed that she had stayed behind with the appellant in the forest. She was carrying a plastic which contained a dead bird, money and a grasshopper. PW7 became suspicious. She took PW4 to her grandmother. The two of them lifted PW3’s skirt. They observed “some sperms on her thighs.” PW3 reported to them that the appellant had raped her. The matter was in turn reported to the community police.
[8] The Crown also relied on the evidence of Daniel Mabuza (PW8) who testified as a community policeman. He confirmed that he saw sperms on PW3’s thighs. Crucially, he testified that when the appellant was finally caught and arrested he was in possession of a slingshot used for killing birds. This tallies with the evidence of the prosecution witnesses. It is the clearest indication that the dead bird which PW3 was seen carrying came from the appellant.
[9] PW3’s grandmother, Loncwala Mngometulu (PW9), also confirmed in evidence that the complainant had sperms on her thighs. She was taken to hospital where she was examined by a doctor.
[10] Dr. Mapreka (PW2) who examined PW3 confirmed that her private parts were bruised. The hymen had a fresh tear. He concluded that vaginal penetration had taken place. This finding is not contested. It must therefore, be accepted as correct.
[11] Insofar as count 2 is concerned the complainant, Takhona Dladla (PW4), testified that she was 6 years old. She was doing Grade 6 at school. On the day in question she was playing with other children, namely, Qiniso and Lomthandazo. At some opportune moment the appellant lured PW4 behind a certain house using the pretext that she must go and pick up stones. It was there that he proceeded to rape her.
[12] PW4’s mother, Dolly Nokuphila, gave evidence as PW5. She told the court that the appellant was a visitor at her homestead on the day in question. At some point he was strangely seen “cutting the children’s nails.” Suddenly, he disappeared with PW4. PW5 went to investigate. She made a gruesome discovery which is best narrated by herself in the following terms:-
“I found Vusumuzi (the appellant) kneeling down and Takhona (PW4) was standing right in front of him and I saw he had made her pull down her trouser and his penis was inside her. When I emerged, he saw me and I saw him and then he said, ha! What is this? He stood up and I turned back and went to mother and he also followed me.”
[13] Quite understandably in the circumstances, PW5 says that she was “very shocked at what I had seen.” She cried. She requested the appellant to leave her homestead there and then. PW4 was taken to hospital for examination.
[14] Dr. Lyimo (PW1) examined PW4. Her hymen had fresh tears. He concluded that there had been vaginal penetration in her case.
[15] The appellant testified in his own defence. He simply denied everything. He did not call any witnesses.
[16] As can be seen from the above resume of facts the prosecution relied in part on the evidence of young children. This factor, coupled with the fact that the case involved sexual offences, enjoined the court to exercise caution. It is trite that in such a situation the court must remind itself of the danger inherent in the evidence of such witnesses. Because of their imaginativeness and suggestibility, young children are in particular prone to suggestions by others. Insofar as the cautionary approach is concerned see, for example, such cases as Roy Ndabazabantu Mabuza v Rex, Criminal Appeal No.35/2002; Eric Makwakwa v Rex, Criminal Appeal No. 2/2006; Fana Msibi v Rex, Criminal Appeal No.7/08.
[17] It is equally important to bear in mind that in this jurisdiction corroboration in rape cases is not strictly required. See, for example, Eric Makwakwa v Rex, (supra); Fana Msibi v Rex, (supra); Themba Donald Dlamini v The King, Appeal Case No. 14/98; Roy Ndabazabantu Mabuza v Rex, (supra).
[18] The court a quo duly cautioned itself in the matter. After seeing and hearing the witnesses, it rejected the appellant’s evidence and accepted that of the prosecution witnesses. It has not been shown that the court misdirected itself in any way. On the contrary, the prosecution presented a formidable case against the appellant on both counts. He did not seriously deny that he was in the company of both complainants in the forest at the material time in each case. The medical evidence corroborated each complainant insofar as vaginal penetration was concerned. It follows in these circumstances that the appellant was correctly convicted. His appeal against conviction on each count falls to be dismissed.
[19] It remains then to deal with the question of sentence. This Court has stated repeatedly that sentence is a matter which lies pre-eminently within the discretion of the trial court. An appellant court will generally not interfere with such sentence unless there is a material misdirection which has resulted in a miscarriage of justice. See, for example, Sam Dupont v Rex, Criminal Appeal No. 4/08 (and the cases cited therein); Jonah Tembe v Rex, Criminal Appeal No.18/2008.
[20] In terms of s5 (3) of the Court of Appeal Act, however, this Court has additional power to quash a sentence imposed by the trial court and to substitute it with an appropriate one if it thinks that a different sentence should have been passed.
[21] As stated in paragraph [4] above, the High Court sentenced the appellant effectively to 26 years imprisonment. Without minimising the seriousness of the offences, I consider that this sentence is too harsh in the circumstances. In fact my researches show that it represents the highest sentence imposed by the High Court for rape in this country. On the other extreme lower end, however, it will be noted that the High Court has recently sentenced an accused to 16 months imprisonment for rape in the case of The King v Thuthukane Ndumiso Fakudze, Review Case No. 06/10.
[22] As long ago as 11 October 2002, and faced with a similar problem of disparate sentences, I had occasion to state the following in the Court of Appeal of Lesotho in R v Lebina And Another 2000 – 2004 LAC 464 CA at paragraph [62]:-
“Although no two cases can ever be exactly the same, it is salutary for courts to strive for a measure of uniformity in sentencing, [whenever] this can reasonably and justly be done. Otherwise the kind of disparity in sentencing as demonstrated by the court a quo in this case will no doubt bring the whole justice system into disrepute.”
[23] Similarly, in the Court of Appeal of Botswana in Sekoto v The State 2007 (1) BLR 392 (CA) at 395 – 396, I had occasion to stress the principle of uniformity of sentences (Grosskopf and Lord Coulsfield JJA concurring) in these terms:-
“It is a matter of regret that we have to comment on the apparent lack of uniformity of sentences in this jurisdiction. The practice of imposing disparate sentences for substantially and similarly circumstanced accused persons is cause for concern. If allowed to continue, it could soon bring the whole criminal justice system in this country into disrepute. Three examples of cases with substantial similarities to the present case will serve to highlight this concern:
(1) In Ntesang v The State (supra) the trial court sentenced the accused to 20 years’ imprisonment. This court has reduced that sentence to 15 years’ imprisonment.
(2) In Philaye v The State [2006] 1 BLR 243, CA, the trial court sentenced the accused to 25 years’ imprisonment. This court reduced the sentence to 15 years’ imprisonment.
(3) In the instant case, the trial court sentenced the accused to 12 years’ imprisonment.
Now, the disparity between the aforementioned sentences ranging between 12 and 25 years for substantially similar offences is self-evident.
It is as well to remember that in Philaye v The State (supra), this court highlighted the principle of uniformity of sentences. Indeed this is a salutary principle which is followed in many jurisdictions. I should not, however, be understood to convey that it is permissible to ignore peculiar circumstances of each individual case. It will indeed readily be recognized after all that no two cases can ever be exactly the same. Substantial similarly is all that one can hope to look for.”
[24] In Ntesang v The State 2007 (1) BLR 387 (CA) at 390 Lord Coulsfield JA added his own voice (Grosskopf and Ramodibedi JJA concurring) in the following terms:-
“One of the fundamental principles of justice in sentencing is that the court should strive to impose the right sentence for the particular circumstances of the case. On the other hand, it has always been recognised that it is salutary for the courts to aim at a measure of uniformity in sentencing, whenever this can reasonably be done. There is, inevitably, a degree of tension between these principles, and it is the duty of the court to try to reach a just sentence by giving each the weight which seems proper in the particular case.”
[25] In a scholarly judgment written by Moore JA and concurred in by Foxcroft and Farlam JJA in Mgubane Magagula v The King, Appeal No. 32/2010 this Court produced an astonishing list of disparate sentences in rape cases in this jurisdiction. In that case the court confirmed a sentence of 18 years imprisonment for rape committed against a girl of 10 years of age. At that stage as the Court noted, the highest sentence for rape confirmed by this Court was 22 years imprisonment recorded in Jonas Mkhatshwa v The King, Criminal Appeal No.19/07. The lowest sentence in turn was 7 years imprisonment recorded in Sabelo Nathi Malaza Criminal Appeal No. 7/2009.
[26] It is my considered view that the remarks fully set out in paragraphs [22] – [24] above now bear repeating in this jurisdiction.
[27] Doing the best I can to ameliorate the harshness of the effective sentence of 26 years imprisonment imposed on the appellant, while at the same time taking into account the seriousness of the offences perpetrated against the innocent young children, I consider that 6 years of the sentence imposed on the appellant on count 2 should run concurrently with the sentence on count 1. The effective sentence shall accordingly be a period of twenty (20) years imprisonment calculated from 10 November 2009.
[28] It follows from the foregoing that the appeal fails in respect of both conviction and sentence. The court a quo’s order that the sentences should run consecutively is, however, varied as proposed in the order below.
[29] In the result the following order is made:-
(1) The appeal is dismissed. Both conviction and sentence recorded by the court a quo are confirmed.
(2) The court a quo’s order that the sentences in both counts should run consecutively is set aside and replaced with the following:-
“Six (6) years of the thirteen (13) years imprisonment on the appellant in respect of his conviction on count 2 are ordered to run concurrently with the sentence of thirteen (13) years imprisonment on count 1.”
______________________________
M.M. RAMODIBEDI
CHIEF JUSTICE
I agree _________________________
A.M. EBRAHIM
JUSTICE OF APPEAL
I agree _________________________
S.A. MOORE
JUSTICE OF APPEAL
For Appellant : In person
For Respondent : Miss L. Hlophe
