IN THE SUPREME COURT OF SWAZILAND
HELD AT MBABANE CRIMINAL APPEAL NO. 33/2011
In the matter between:
PHUMLANI MASUKU APPELLANT
THE KING RESPONDENT
DR. TWUM JA
HEARD : 4TH NOVEMBER 2011
DELIVERED : 30 NOVEMBER 2011
Criminal Appeal, conviction for rape with aggravating circumstances by Magistrates Court; committal to High Court for higher sentence; practice and procedure under s.293 of Criminal Procedure and Evidence Act. High Court confirms conviction and sentences accused to 14 years imprisonment. Appeal to this Court against conviction and sentence. Considerations that weigh with the Court in considering the appeal.
DR. S. TWUM J.A.
 This is an appeal from the judgment of Ota J. sitting in the High Court, Mbabane, on 5th July 2011. She convicted the appellant of the offence of rape with aggravating circumstances and sentenced him to 14 years imprisonment without the option of a fine. The appellant has appealed from that judgment to this Court against both.
 The facts of this case are fairly straight forward.
On or about the 17th of May, 2010, the complainant, then aged 13 years and two others, younger than her, travelled on a Kombi bus to a homestead called Bulandzeni. They alighted from the Kombi at Mangonni bus stop. The appellant who had travelled on the same Kombi, got down from the bus when the 3 children alighted. He followed them and got into conversation with them. He asked them if they knew one Samkeliso Ginindza. They said they did. They said he lived at the compound they were going to.
 According to the complainant, on their way they used a bush path which ran through a forest. The appellant suddenly pulled a knife from his pocket and the children ran helter-skelter. The appellant chased after the 13 year-old girl, and ultimately caught her. The evidence of the complainant was that the appellant demanded that she should have sex with him or else he would kill her. Despite her pleas, protestations and physical resistance, the appellant dragged her to a tree stump and proceeded to have sexual intercourse with her, without her consent.
 Meanwhile, the two others who were with the complainant managed to escape and ran to their homestead to raise an alarm. A search party wasted no time and pursued the appellant.
 As the search party combed the forest, the appellant sensed danger, stabbed the complainant and ran away from the approaching party holding his pair of trousers. He was caught by the search party. He pointed his knife at the leader of the party but he was quickly dispossessed of it and he was handed over to the Police. The complainant was rescued. She was bleeding.
 The appellant was charged with the offence of rape, and put before Piggs Peak Magistrate’s Court on 25th November, 2010. He pleaded “not guilty”.
 In his defence, the appellant denied that he raped the complainant.
He said he merely tried to rob her by threat of death. He said that he stabbed her twice on her hand and breast to frighten her to give him money; not to rape her. He insisted that contrary to the prosecution’s case that the medical report which was submitted to the court by consent confirmed his guilt, it rather exonerated him since it did not state that the complainant had been raped.
 After a full trial the Appellant was convicted as charged by the trial Magistrate. The Magistrate said the complainant was a credible witness and that the overwhelming evidence on record was that she was indeed raped by the appellant. He added that the comission of the offence was accompanied by two aggravating circumstances:-
(a) the appellant did not use a condom, thereby exposing the complainant to a possible H.I.V or other sexually transmitted infection,
(b) the appellant threatened her with a knife with which he actually stabbed her to break down her resistance to his evil demands for sexual gratification.
 On account of those aggravating circumstances, the trial Magistrate took the view that the appellant merited a more severe sentence of imprisonment than his sentencing jurisdiction permitted. Consequently, he ordered that the appellant be committed to the High Court under sections 292(1) and 293 of the Criminal Procedure and Evidence Act, (67/1938), for appropriate sentence.
 The appellant appeared before Her Ladyship, Ota J. sitting at the High Court, Mbabane. As she was required to do under s.293(2), she enquired into the circumstances of the case, primarily by carefully examining the record of proceedings in the Magistrate’s Court in order to satisfy herself of the guilt of the appellant as well as whether the conviction was proper. She opined that she had carefully reviewed the totality of the evidence on record and was satisfied that the appellant’s conviction was proper. In particular, she said she was convinced that the appellant had unlawful sexual intercourse with the complainant without her consent. She said this finding was corroborated by exhibit A, the medical report, which was handed in by the Police investigator to the court, by consent. The medical doctor’s opinion was that even though there were no genital injuries in keeping with forced penetration, non intact hymen cannot rule out the possibility of penetration on the day in question. She confirmed the appellant’s conviction by the trial Magistrate.
 Before he was sentenced, the learned Judge asked him if he had anything to say for himself in mitigation of sentence. The appellant was in a quandary. On the one hand he persisted that he never raped the complainant; on the other hand he felt the urge to plead for a lighter sentence. He asked the Judge to have regard to the medical report, which he claimed, exonerated him. He said the case against him was fabricated. He said the complainant had been coached to incriminate him. There was no remorse shown by him.
However, he pleaded that he had contracted T.B. since being kept in prison custody. He said he was only 23 and had elderly parents to look after. He added that he had two young children even though he was not married. Consequently, he would plead for a shorter prison sentence.
 By way of explaining to the appellant the sentence she was going to pass on him, Her Ladyship said the offence he had committed on the defenceless 13 year-old girl was very serious indeed. She said the menace persisted among young men and this was to be deprecated. She said she had considered his plea for leniency. She concluded by saying that unfortunately for the victim, the appellant committed the offence without using a condom. She said the offence was further compounded by another aggravating circumstance – threat of death by stabbing the girl with a knife. She said he even called his victim a dog.
She sentenced him to 14 years in prison.
Appeal to this Court
On or about 29th July 2011, the appellant wrote to the Registrar of this Court.
“An application for appeal” against his conviction and sentence of 14 years imprisonment. In it, he said his main ground for the appeal was that he was “wrongfully, erroneously and unfairly convicted and sentenced for the rape offence.” On 28th October, he filed with the Registrar of this Court, a document headed “Submission of Heads of Argument”. In it, he argued as follows:-
“(1) I did not have sexual intercourse with the complainant as alleged.
(2) The complainant was not an honest and reliable witness…
(3) The doctor’s medical report “was very ambiguous, inconclusive and contradictory.”
(4) I should have been charged with and convicted of attempted robbery, and punished for that, not rape. I committed attempted robbery, not rape.”
His final prayer was that he should be acquitted and discharged.
 Arguing his appeal before this Court, the appellant insisted that he did not rape the complainant. This Court reiterates that the quintessential test for rape is that the accused penetrated the complainant without her consent. The slightest degree of penetration will sustain a charge. In casu, there was no evidence that the complainant was sexually active prior to the 17th of May 2010 the date when she said she was raped by the appellant. The appellant admitted chasing the complainant into the forest. He admitted threatening her with his knife, and actually inflicting knife wounds on her hand and chest. He said, the knife wounds were intended to make her give him money. He said they were calculated to subdue her into submission. When the appellant was apprehended by the search party, he carried his pair of trousers. As His Lordship the Chief Justice so graphically put it to him during the hearing, “you were literally caught with your pants down.” According to the complainant, it was the appellant who took off her panties. It was the appellant who pushed her towards a tree stump and put his penis into her vagina. The medical report was admittedly not unequivocal, but the fact that the complaint’s hymen was broken gave support to her claim that the appellant raped her. Surely, the appellant’s claim that he did all this merely to try to rob the complainant should be dismissed with the contempt it deserved. How much money did he think that 13 year-old girl had on her to have merited all the trouble of chasing her into the forest? And how does the taking off of his pair of trousers facilitate the alleged robbery he said he was trying on the complainant?
The standard of proof in criminal trials, generally, is proof beyond reasonable doubt. It is not proof beyond all doubt. Applying that standard of proof-(i.e. beyond reasonable, not fanciful doubt), I have come to the inescapable conclusion that it was the appellant who raped the complainant. Indeed, in my view, any other conclusion would have been perverse. I find the appellant guilty as charged and convict him. This accords with the finding of guilt by the learned Judge which in itself, also confirms the earlier finding of guilt by the trial Magistrate. I confirm that he was properly convicted by the two courts below. The appellant’s appeal against his conviction is accordingly dismissed.
Appeal against sentence
Generally, an appellate court would not interfere with a sentence passed on an accused person by the court below, unless the court below misdirected itself, or the sentence breached a statutory compulsory minimum sentence or it was unduly severe or lenient, as to run counter to guidelines set by the appellate court.
In this case, even though I myself may have given a slightly higher sentence than he had, I appreciate that sentencing is really a discretion of the sentencing court. I have considered the considerations that weighed with Ota J before imposing the sentence of 14 years on the appellant. The record shows that she considered this Court’s decision in Mgubane Magagula v Rex Appeal Case No. 32/2010 in which it was suggested that the appropriate range of sentences for rape with aggravating circumstances, was between 11 and 18 years imprisonment. 14 years is almost the mean of the figures, 11 and 18.
In the circumstances, I will uphold the sentence of 14 years.
The final order of this Court is that the appellant’s appeal against his conviction is dismissed and his sentence of 14 years in prison is confirmed.
DR. SETH TWUM
JUSTICE OF APPEAL
I also agree. ____________________
JUSTICE OF APPEAL
COUNSEL APPELLANT IN PERSON
FOR RESPONDENT MR. P.D. DLAMINI