IN
THE COURT OF APPEAL OF SWAZILAND
APP.
NO. 21/83
In
the matter of:
JOHN
DISCO HLOPHE Appellant and
HEGINA Respondent
CORAM: VAN
WINSEN J.A.
WELSH
J.A.
HANNAH
J.A.
VAN
WINSEN J. A,
JUDGEMENT
(14/3/86)
Appellant
was convicted in the High Court on charges of:
(i) Rape
of Jabulile Phumaphi Mamba
and
(ii) Abduction
of the said Maraba with the intention of having sexual intercourse
with her.
On
the first count he was sentenced to 6 years imprisonment and on the
second count 1 year's imprisonment, the second sentence to run
concurrently with the first. He lodged an appeal against the
conviction and sentence on each of the two counts. Two co-accused,
indicted on the abduction charge together with appellant, were
acquitted at the conclusion of the Crown case on the ground that the
Crown had failed to establish that they were aware of the fact that
Miss Mamba was under 21 years of age.
2
It
appears from a reconstructed record that the essential features of
the evidence adduced both by the Crown and the Defence on the two
charges can be summarised as follows.
Complainant,
who admiteed to having had a love-affair with appellant from 1979 up
to sometime in the earlier half of 1982, testified that on 12 July
1982 she went, together with another girl, to the Usuthu River to
draw water. On. their way back to her home from the river she was
approached by appellant and his two co-accused who against her will
hundled her into a motor vehicle which was then driven to Sigeawini
where appellant's home is. There she was instructed to and did enter
the homestead. Appellant further instructed her to get into bed in
the hut in which he slept. She at first refused but then complied
with his instruction. Appellant hit her with a piece of wood and told
her to undress which she also refused to do. He then took her dress
off and when he hit her with a belt she took off her panty. Appellant
lay on top of her and had sexual intercourse with her three times.
She says she cried when he had sex with her and also because she
wanted to go home. In the morning appellant left and she went to
enquire from persons how to find her way hone. She lived in Big Bend
- some distance from appellant's home. She says that when she asked
certain people the way she "told (then) about everything."
In response to a question put to her by one of those people as to
whether she was in love with one of the "boys" she said she
was.
It
does not appear from the record to which boy reference was being made
but presumably, judging by the context they were appellant and his
two co-accused.
3
Her
parents who were searching for her found her that afternoon at about
4p.m.
at
appellant's hone. She stated in her evidence-in-chief that she did
not talk to her parents nor did she make a report or statement to
then about what had happened to her.
Under
cross-examination she denied that she had willingly accompanied
appellant to his homestead as his lover. She also rejected the
suggestion made to her that the trouble only started when her parents
cane looking for her and that when they found her, she had no
alternative but to put the blame for her absence from home on
appellant.
She
testified that she had cade a report about what had happened to her
to her teacher and school nates but she at first disdained having
made a report to her parents or to the police but subsequently
testified that when her mother had asked her, presumably about what
had happened to her, she then reported to her.
She
admitted having had sex with another person before she became
appellant's lover. There is evidence to the effect that when
complainant was seen in the motor vehicle by Mavimbela she was crying
aloud and saying "mother help me".
A
witness Annan Bhila, who knows complainant, testified that on the
afternoon of 12 July 1982 she saw appellant coning from the river and
standing and talking to a "boy". She then ran from him. and
he and another "boy" went after her, caught her and holding
on to her put her into a motor behiele which was subsequently driven
away.
Aaron
Mamba, the father of complainant, testified that he received a report
from his wife and went to his hone, where he lives with his wife and
complainant, to find the latter to be missing.
4
Not
having found his daughter by the next day he, presumably on the
strength of some information, went to appellant's homestead where he
found his daughter and was told by her that she had been taken
forcibly by appellant and other adults. The evidence of complainant's
father is in conflict with that of his daughter in regard to whether
she reported to him as to what had happened to her. He testified
quite emphatically that she had told him. He further said she was
lying when she testified that she had not reported to the police. She
had, according to him, made such a report to the police. He describes
his daughter as being "unhappy and angry" when he found
her.
Thabitha
Sibiya, complainant's mother, was present when complainant was found.
This witness was asked whether her daughter had told her where she
had been and her answer was:-"She did not tell me but she said
that she was grabbed and put into a vehicle by one Hlophe boy."
The
vehicle was thereafter driven away. Her daughter said "nothing
more."
In
re-examination by Crown Counsel the witness said that her daughter
told her that when she was in appellant's hone "he grabbed her
and put (her) into his house and in the night removed her panty and
had sexual intercourse with her."
Appellant
in evidence gave a very different version of the events. He said he
had asked his co-accused to accompany him to complainant's house and
offered to pay one of them E10 to drive him there. His evidence is to
the effect that she indlged in a stratagem - no doubt to decive her
parents - pretending to go to the river to fetch water so as to
enable her to join him at the vehicle where it was parked
5
near
the river. She net him there and of her own free will got into the
vehicle and drove away with him. On the way to his home they stopped
at the Jet stores where appellant bought cold drinks. From there they
drove to his hone. The witness testified that he slept that night in
the sane hut with complainant and that they had sexual intercourse.
He denied that the intercourse was against her will and he denied
that she cried while at his home. Apparently his elder sister was at
hone and he said he introduced complainant to her. Appellant left his
home in the morning and on his return in the day complainant was
gone. He found her sometime later sitting at the Big Bend Police
Station.
The
trial judge states in his judgment that he found complainant to be
honest and convincing witness. Since the only eveidence of the rape
was that of complainant the trial judge stated that he had sought and
found corroboration for her evidence in certain features of the
evidence, three of which he specified. The first was the evidence of
Mavimbela to the effect that she saw complainant in the vehicle
before it drove away and she was crying aloud and calling for help
from her mother. The second was the evidence of the complainant that
she reported to her mother that appellant ha had sexual intercourse
with her against her will. The third feature from which the learned
judge a quo sought corroboration for complainant's story was that
appellant had failed to adduce the evidence of one of his co-accused
Johannes Ndabandaba and of his appellant sister, the first to say
that complainant had entered the vehicle at her hone voluntarily and
the latter to say that complainant had not been forcibly kept by
appellant in his hut when at the latter's home.
6
The
appeal against the conviction for abduction can be readily disposed
of. Appellant had pleaded guilty to this charge and there is in any
event evidence on the record indicating that complainant did not
voluntarily enter the vehicle with which appellant had come to fetch
her at her hone.
The
important question, however, is whether the Crown had succeded in
proving beyond reasonable doubt that appellant had raped complainant
at his home as she alleged. One of the constituent elements of the
crime of rape viz; that sexual intercourse took place between the
parties, is, by common consent, present in this case. The crucial
question, however, is whether it has been proved to have taken place
against her will of the complainant. There is only the word of
complainant that it did. On examination by the medical officer he
found no injuries to her private parts nor indeed were such injuries
to be expected since she had had a relationship with appellant which
had begun in 1979.
Had
there been evidence that she had voluntarily and timeously
complained, for instance, to her parents or to the police such
evidence would have served to negative the evidence that she had
consented to have intercourse with appellant. See South African Law
of Evidence by Hoffman and Zeffertt 3rd Edition page 23; Phipson on
Evidence 10th Edition 355 at page 354 and Rex vs Osborne 1905 1 K. B.
551 at page 557 et seq. The evidence as to whether or not she did
complain and to whom. is anything but clear.
If
complainant is to be believed in what she said in one part of her
evidence then she made no complaint to her parents. Her father
however, said in evidence that she did complain and that she was
lying when she said she had not.
7
Her
mother on the contrary testified that she told her no more than that
she had been forcibly put into the vehicle at her hone. Even when she
told her mother that appellant had taken off her panty and had had
sexual intercourse with her at his hone she does not tell her mother
that it was without her consent. Complainant's evidence that she
talked to her teacher, presumably when she returned to school, does
not take the matter any further since it is no evidence what she said
to the teacher and in any event whatever was said was not said at the
first reasonable opportunity after the offence had been committed.
The
corroboration on which the Court a
quo
relied also does not serve to bolster the lone evidence of
complainant. There was no onus on appellant to call his co-accused or
his sister to underwrite his version of what occured between him and
the complainant. The Crown bears the onus to prove its case and no
obligation rests upon appellant to disprove it.
Mr.
Sibandze for the Crown sought to rely upon the abduction by appellant
of complainant as evidence in support of the latter's evidence that
she was raped. In other circumstances - had the parties for instance
been strangers to each other -there might have been more weight in
this argument. But in the present case an intimate relationship had
existed between appellant and complainant for a period from 1979 up
to the earlier part of 1982 and it does not follow therefore that
sexual relations between then after her abduction must necessarily
have taken place against her will.
Looking
at the totality of the events disclosed by the evidence in this case
I an not satified that the Crown has discharged the onus of proof
resting upon it in regard to the rape charge.
8
Accordingly
the appeal against the conviction and sentence on the charge of rape
is allowed and Tooth conviction and sentence are set aside. The
appeal against the conviction and sentence on the charge of adduction
is dismissed.
WELSH
J. A.
I
agree
HANNAH
J. A.
I
agree
