THE
HIGH COURT OF SWAZILAND
Crim.Appeal
Case No.8/2002
In
the matter between:
BHEKI
MNDZEBELE Appellant
Vs
REX Respondent
CORAM: MAPHALAL
J.
MASUKU
J.
For
Applicant: In person
For
Respondent: Mrs N. Lukhele
JUDGEMENT
16th May 2002
Masuku
J.
The
Appellant, to whom I shall continue to refer to as "the
accused", was tried and convicted by His Worship Mr N. Nkonyane,
Senior Magistrate, Manzini District, of the crime of rape. The charge
sheet alleged that on the 24th February 2001 he wrongfully,
unlawfully and intentionally had sexual intercourse with Thobile
Dlamini, a 21 year old female without her consent. The accused was
sentenced to seven (7) years imprisonment without the option of a
fine. Due to certain infractions by the accused, which appear to have
occurred in facie curiae, an additional sixty (60) days imprisonment
was imposed on the accused by the learned Magistrate.
2
The
accused's appeal has been levelled against both conviction and
sentence. The grounds of appeal are enumerated ippsissima verba
below:-
1. The
Court a quo erred in fact and in law by finding appellant guilty as
charged overlooking that the evidence of the complainant was
inconsistent and there was no corroboration of evidence with her
witnesses.
2. The
Doctor's report was overlooked by the Court a quo that it did not
specify whose spermatozoa were found.
3. The
Honourable Magistrate erred in fact and in law by showing interest in
the case by taking sides and appellant feels there was miscarriage of
justice in his case.
4. The
Court a quo misdirected itself by passing harsh a sentence which
induces a sense of shock.
The
evidence led before the court a quo can be summarised as follows: -
The Crown paraded four witnesses, PW 1 being Dr Clement Daudu, who
testified that a patient PW 3 was brought to him by the Mliba Police
on the 25th February, 2001. He examined the patient and recorded his
findings and conclusions in a pro forma medical report which was
handed in. He observed bruises on the face, neck, left hip and
buttocks of the complainant. As the complaint was one of rape, he
examined the complainants organs of generation and took a specimen
from her vagina for examination in the laboratory. The results were
positive for spermatozoa. He opined in view of all the foregoing
factors that the complainant had had recent sexual activity with
penetration and concluded that the circumstances suggested forced
sexual intercourse. The accused, notwithstanding an explanation of
his rights did not cross-examine the Doctor.
PW
2 was the Thembinkosi Magagula a brother-in-law to the complainant.
His evidence was that he arrived at home on 24th February 2001 at
about 10 pm accompanied by his brother Jabulani. PW 3, the
complainant came crying and reported that she had been attacked and
raped by a Mndzebele boy who used to come to borrow some tools. PW 2
and his brother who knew the accused, ran after some people
entertaining the hope that the
3
assailant
could be among them but to no avail. On return, PW 3 explained the
details of her ordeal. PW 2 went to the scene and found marks
consistent with a struggle on the ground. The matter was then
reported to the Mliba Police and PW 3 was taken to Dvokolwako Clinic.
Nothing of significance turned on the cross-examination of PW 2 by
the accused.
PW
3 was the complainant. She testified that she knew the accused who
used to come to borrow tools from her brother-in-law PW 2. On 24th
February 2001, at around 21h00 a person knocked on the door in a
manner similar to her husband's and even said "open for me my
wife". PW 3, realised that it was not her husband but the
accused and she refused to open the door. The accused informed her
that he had been sent by PW 3's husband to collect his coat but still
PW 3 was not persuaded to open the door. The accused pushed the
window and it gave way and when he attempted to enter the house, PW 3
hit his feet and he desisted.
The
accused went to a pile of stones and threatened to throw them at the
house and destroying everything in the process. PW 3 quickly ran out
of the house but was pursued and apprehended by the accused. He
pulled her to the house and told her he wanted to have sexual
intercourse with her. He throttled her telling her that he had always
desired to know her carnally and that his dream had come to pass as
it were. PW 3 raised a hue and cry but was overpowered by the accused
eventually. She fell down and he proceeded to have sexual intercourse
with her. At some stage during the process, PW 3 stated that she lost
consciousness. Some men were heard talking and suspecting that it
might be PW 3's husband, the accused stopped and ran away. As he did
so, he asked if PW 3 knew her name and she confirmed knowing only his
surname. PW 3 raised an alarm to her husband and ran towards the main
homestead at it was in that process that she met PW 2. The story she
related to Court is consistent with what PW 2 told the Court
regarding the report she made of the rape.
In
his cross-examination, which did not centre on the crucial issues,
the accused never denied having had sexual intercourse with PW 3 and
never denied that she had not consented thereto - failed to state
who.
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PW
4 was 2012 D/Constable Shongwe whose evidence centred around the
accused's arrest. The accused adduced sworn evidence which also
centred on his arrest. He said nothing about the allegation of rape
levelled against him.
It
now behoves me to address the grounds of appeal as raised by the
accused ad seriatim.
1. The
complainant's inconsistent evidence
The
accused alleges that the complainant's evidence, which was
inconsistent and received no corroboration from her witnesses was
overlooked by the learned Magistrate. The accused was hard pressed to
point out the alleged inconsistencies. For an inconsistency to lead
to evidence being rejected whether in part or as a whole, the
inconsistency must be material. Not every inconsistency will lead to
a Court rejecting the evidence led. In casu, there is no such
inconsistency and PW 1 's evidence found corroboration in the
evidence of PW 1 and PW 2. Her story of the struggle and the bruises
is confirmed by PW 1 and PW 2 and her report to PW 2 is likewise
confirmed. There is in my view no merit in this ground of appeal.
The
Court was entitled to rely on the evidence before it to convict the
accused person and there is nothing to suggest any misdirection on
the part of the Court. The evidence led was compelling, pointed
directly to the accused and he offered no plausible or any
explanation whatsoever, in view of that incriminating evidence. This
morning, the accused had another ace up his sleeve. He alleged that
PW 2 and PW 3 concocted the rape charges. When cross-examined by the
Crown, he failed to advance any reasons for them to have done so.
This ground is liable to fail.
2. Overlooking
of Doctor's Report
The
accused alleges that the Court a quo overlooked the Doctor's report
as it did not specify whose spermatozoa, was found. Again, this
attack is totally unjustified. The Court relied in part on the
Doctor's observations which were consistent with the complaint
reported by PW 2. The presence of spermatozoa is a factor consistent
with PW 2's allegation that she had penetrative sexual intercourse on
the day in question with the accused and without her consent. It is
not the Doctor's function to identify the source of
5
the
spermatozoa. His conclusions are consistent with the complainant's
evidence and that suffices to lead the Court to a finding that PW 3's
story regarding sexual intercourse is plausible and true. It is
imperative in this regard to point out that the slightest degree of
penetration suffices in cases of rape and that semen need not be
emitted. See Hunt "South African Criminal Law and Procedure",
Vol. II 2nd Edition, 1982 at page 440 - 441.
The
Court a quo never erred in this regard and its approach and
conclusions in this regard cannot be faltered. This ground of appeal
accordingly fails.
3. Presiding
Officer's Bias
It
is alleged that the learned Magistrate exhibited signs of bias
against the accused person, thus resulting in a miscarriage of
justice. Such a conclusion is insupportable regard had to the record
of proceedings. There is not a whit to suggest any impropriety
whatsoever in the conduct of the proceedings by the learned
Magistrate and the accused had grave difficulty in pointing out any
on the record before us.
In
my view, the attack upon the probity of the learned Magistrate is
unjustified. The record reflects that the accused was accordingly
warned of his rights and was afforded every opportunity to
cross-examine witnesses, to call witnesses e.t.c. That is consistent
with a fair, independent and open-minded Judicial Officer. The one
thing that I noted, which may have escaped the learned Magistrate's
attention, and I do not ascribe this to bias or any such ill motive,
is recorded at page 13 of the record at lines 9 to 10, where the
accused was cross-examining PW 4. The following occurs in the battle
of wits:-
"Q:
What real proof did you have that it was me who committed the crime?
A: From the information that I got from the complainant."
In
my view, the accused ought to have been warned about the danger of
asking such a question as the answer may have had incriminating
content. No warning is recorded in this case. Judicial Officers
should warn unrepresented accused persons on the dangers of asking
incriminating questions and this is a duty from which presiding
Officers cannot escape without hampering the interests of justice. No
prejudicial answer was received from this question and should I be
wrong in this regard, there is nothing to indicate that the
6
answer
given tilted the scales against the accused. There was in my view,
ample evidence that answer excepted, upon which to convict the
accused person and which the learned Magistrate relied upon as may be
seen from the reasons for his judgement.
This
ground also has no substance and is liable to fail. It is therefor
dismissed, (4) Appeal as to Sentence
The
operative criterion in interfering with sentence was stated with
authority by Mohomed C.J. (as he then was) in S v SHIKUNGA 2000 (1)
SA 616 at 631 F - I (Nm S.C.) as follows:-
"It
is trite law that the issue of sentencing is one which vests
discretion in the trial Court. An Appeal Court will only interfere
with the exercise of this discretion where it is felt that the
sentence imposed is not a reasonable one or where the discretion has
not been judiciously exercised. The circumstances in which a Court of
Appeal will interfere with the sentence imposed by the trial Court
are where the trial Court has misdirected itself on the facts or the
law (S v Rabie 1975 (4) SA 855 (A); where the sentence that is
imposed is one which is manifestly inappropriate and induces a sense
of shock (S v Snyders 1982 (2) SA 694 (A); is such that a patent
disparity exists between the sentence that was imposed and the
sentence that the Court of Appeal would have imposed (S v ABT 1975
(3) etc: or where there is an under-emphasis of the accused's
personal circumstances (S v Maseko 1982 (1) SA 99 (A) @ 102; S v
Collett 1990 (1) SACK 465 (A)"
There
is not an iota of evidence to show or suggest that the Court a quo
misdirected itself in any of the respects enumerated above. To the
contrary, it even handedly considered all the competing interests and
meted out a sentence that was in the circumstances in which it found
itself rehabilitative, deterrent and retributive. This Court could
have imposed a heavier sentence. The learned Magistrate correctly
exercised the discretion vested in him. His sentence should, in view
of the foregoing stand.
We
have been invited by the accused to consider suspending the sentence
or a portion thereof. We find this unattractive in cases of rape,
even if we had the discretion to do so.
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More
importantly, we are precluded from so-doing by the provisions of
Section 313, as the offence in respect of which the accused was
convicted falls under the Third Schedule of offences listed in the
Criminal Procedure and Evidence Act, 67/1938.
On
the question relating to the backdating of the sentence, Beck J.A.
succinctly stated the position as follows in ROBERT MAGONGO vs REX
APPEAL CASE NO. 38/2000
(unreported),
at page 15 in the following terms:-
"When
an accused person has been kept in custody awaiting trial, it has
become customary in this jurisdiction to backdate custodial sentences
to the date of the accused person's arrest. It is of course, entirely
permissible not to do so, but in that case the trial Court should
indicate that it has considered doing so, but he decided not to
because in assessing sentences the time spent in custody awaiting
trial has to be taken into consideration. "
In
dealing with this aspect, the learned Magistrate had this to say at
page 19 of the record:-
"But
owing to the accused's conduct in court of passing disparaging
remarks in court the sentence will not be backdated as it showed that
the accused is not sorry for what he did. (After the sentence was
passed the accused issued a threat to the presiding officer). The
accused is further sentenced to sixty days' imprisonment for contempt
of court. The accused will serve this sentence after he has served
the seven years' term."
It
is clear, from the foregoing that the learned Magistrate considered
the question of backdating the sentence but decided for reasons
advanced, namely, the accused's conduct indicative of contumacy of
the Court, not to do so. I see nothing untoward in the exercise of
the discretion by the learned Magistrate. His reasons for not
backdating the sentence are sound and justified. It would in
circumstances be a travesty if I were to interfere with this
exercise.
Regarding
the question of contempt of Court, no issue has been raised about the
conviction on this aspect. Courts rely in large measure on respect in
carrying out their divine call. Any action or words which tend to
belittle or disparage the Courts or the Presiding Officers
8
must
be attended to swiftly and in a summary manner if they occur in facie
curiae. To allow persons to denigrate the dignity of the Court with
impunity would constitute a fertile ground for cancerous tendencies
which would consume the Court's consummate integrity and the esteem
at which it is and is to be held. The accused sowed the seeds and
received a just reward. The sentences imposed on him be and are
hereby confirmed.
On
the whole, I would dismiss the appeal and it is thus ordered.
Should
you wish to appeal to the Appeal Court against this judgement you are
advised to make application for leave before this Court within
fourteen (14) days of the date hereof. You must indicate reasons why
you say you have prospects of success.
T.S.
MALUKU
JUDGE
I
agree
S.B.
MAPHALALA
JUDGE
