Cautionary rules – sexual cases

CRIM. CASE NO. 124/99

In the matter between

REX

Vs

MUSA SHIGA SHONGWE

Coram S.B. MAPHALALA – J

For the Crown MR. B. SIGWANE

For the Defence MR. K. VILAKATI

JUDGEMENT

(26/04/2001)

______________________________________________________________

The accused is indicted as follows:

“That on about or during the month of January 1999, and at or near Maphiveni area in the Lubombo region, the said accused, a juvenile male, did intentionally have unlawful sexual intercourse with a minor, Andile Maseko, a female aged 8 years at the time; incapable in law of consenting to sexual intercourse and the accused did thereby commit the crime of rape”.

The crown contended further that the rape was attended by aggravating circumstances in that:

“ i) the complainant had not had sexual intercourse prior to the rape;

The accused pleaded not guilty and he is duly represented by Mr. Vilakati. The crown is represented by Mr. Sigwane. The crown called eight witnesses to prove its case.

The first witness called by the crown was the complainant Andile Maseko who told the court the circumstances leading to the alleged rape. She told the court that the accused was her neighbour. That during the third term school holidays early in January she was at her parental home playing in the yard with other girls. These were Lindiwe (who was six years old) and Lenhle (who was ten years old). He saw the accused person in his homestead. The accused person called her and said he wanted to send her to the shop. The accused asked her to collect the money from his bedroom. She went to accused bedroom where upon the accused followed her and closed the door. The accused instructed her to remove her panties but she refused. The accused told her that he was going to beat her up. She then removed her panties and he asked her to bend over. At first she refused to bend over where upon the accused produced a knife and said if she refuses to bend over he was going to stab her. She then bent over and touched the floor towards the front. The accused put his penis into her “place that is for urinating”. After he was through she went outside. She told the court that whilst he had his penis inside her she felt some pain and she cried. The accused stopped when he heard her crying. After he had finished he told her not to tell her mother and if she told her mother he was going to kill her. She believed that the accused would kill if she told of this incident.

She then went outside and sat on the veranda of the house. The two other girls asked her why she was angry and she did not tell them as she was still feeling some pain. She sat there for sometime and then went straight to the bathroom. She checked herself and observed blood coming out and she washed herself. She then went back to her playmates to continue playing.

Complainant further told the court that when he left the accused person he was playing a T.V. game. She told the court that after a long time she used to go to the bathroom with the other girls to wash when one of her sister told her mother that complainant complained of pains whenever they were washing. Her mother then examined her private parts. When her mother asked her who was responsible for this she did not tell her that it was the accused because she was afraid of the accused who had threatened to kill her. Her mother then took her to the clinic and later to the Good Shepherd Hospital. She was examined there and the doctor who examined her reported that she had contracted gonorrhea.

Her mother then called her teacher to report that she had been raped at school. She told the court that the reason she did not tell her mother the truth was because she was scared of the accused person. Her mother went to school to report the matter. Thereafter she was interviewed by her teacher one Madam Mthethwa and Simelane. She was called inside the staff room and asked to tell the person who had raped her. She told the court that she ended telling them that the accused person raped her. She also told the court that she also told the head teacher Mr. Mthembu the person who raped her.

This is about the extent of this witness testimony. She was cross-examined at length more particularly on her credibility. In my view I found that she was a credible witness and had no reason to fabricate evidence against the accused person.

The crown then called PW2 Jeremiah Dlamini. This witness carried out microscopic examinations on the smears taken from the complainant and the accused person. He gave the results of each examination to the respective doctors.

This witness was cross-examined briefly. The cross-examination was of a formal nature and nothing much turned on it.

The crown called PW3 the headmaster Alfred Mthembu who told the court that the complainant’s mother asked his assistance in this matter.

The crown then called PW4 2277 Detective Sergeant A. Methula. This witness received the complaint made by complainant’s mother. He sent the complainant to Good Shepherd Hospital for examination. He went to Tabankhulu area where he arrested the accused.

On the 26th March 1999, on the advice of the prosecutor he took the accused person to the Good Shepherd Hospital for examination. He handed the accused to one Dr Phillip, thereafter the doctor handed him a medical report, which was entered as exhibit “A”. The doctor found that the accused had contracted gonorrhea.

The crown then called PW5 Lenhle Silinda. This witness told the court that PW1 went to accused homestead although she did not see the accused calling PW1. After a short while she saw the complainant coming out of the accused house.

This witness was cross-examined briefly and it appeared that her evidence conflicted with that of the complainant. However, these were slight differences here and there but when the nature of events which they described is taken into account, slight inconsistencies were only to be expected.

The crown then called its sixth witness PW6 Doris Mthethwa who is a schoolteacher at complainant’s school. She told the court that the head teacher of the school came to her and told her that a child in the school had been raped and he requested her together with another teacher to find out from the child who was involved. She told them that some boys at the school were involved. However, they established that it was not the boys who were involved in the commission of the rape. It was then that the complainant mentioned the accused person as the person who was responsible in the commission of the offence. They asked her why she had not told them at the onset of their enquiry and she said the reason she had not told them and her mother the truth was because she was afraid of the accused person who had threatened to kill her. The two teachers then took the complainant to the head teacher. The head teacher then called complainant’s mother to come to the school.

The crown then called the complainant’s mother PW7 Phindile Maseko. She told the court that on the 4th February 1999, she received a report concerning the complainant. Acting on the report, she examined the complainant’s private parts and found that she had some sort of infection that was causing her pain. She took the complainant to the Tabankhulu clinic where she received a report and was advised to speak to the complainant about whether she had been involved in any sexual act. She enlisted the help of the complainant’s school head teacher to help her speak to the complainant. After sometime the head teacher called her so that he could give her a report of his findings. He explained to her that the child said the accused person raped her. Prior to this when she asked the complainant as to what was causing the pain she told her that boys at school were responsible. This witness revealed in her evidence that the accused person had done a similar thing in the past but the issue was resolved by them as parents.

This witness was cross-examined at length where in my observation did not deviate from her evidence she gave in-chief.

At this stage the crown called its last witness PW8 Dr A. Phillips. This witness examined the accused. He made a medical report. He told the court that he found that the accused person upon examination had a sexually transmitted disease called gonorrhea.

The witness was cross-examined briefly, however, the cross-examination was of a formal nature.

Towards the close of the crown’s evidence the crown applied that the evidence of Dr. Donalson be accepted in terms of Section 221 of the Criminal Procedure and Evidence Act (as amended). The basis for this application was that the doctor was no longer practising in Swaziland and has re –allocated to his own country. The defence did not object to this application. The evidence of the doctor was thus accepted. This witness examined the complainant on the 16th February 1999. He made a report of his findings of the laboratory examination. The report was entered as exhibit “C” of the crown’s evidence. The doctor found that the complainant had contracted gonorrhea.

At this stage the crown closed its case.

The accused gave his evidence under oath. The accused gave a lengthy account of his own version. On the main he denied having committed this offence and told the court that all the evidence from the crown witness was not true.

He called a witness DW2 Bongani Dlamini who came to support the accused evidence that the accused during January 1999 had a girlfriend by the name of Zanele Mabuza.

The defence then closed its case and the court heard submissions by both counsel. I have scrutinized the evidence in its totality and have also considered the submissions made by counsel. From the onset, I must say that I agree entirely with the submissions made by Mr. Sigwane for the crown. In my view the crown has called credible witnesses who testified that the complainant was actually raped by the accused person. I have no doubt that the complainant and the other witnesses for the crown were truthful. There were slight differences here and there in their evidence but when the nature of events, which they described, is taken into account, slight inconsistencies were only to be expected.

It is common cause that the complainant was a child of 8 years at the time of the rape. This rape took place sometime in January 1999. The defence has not made issue of the dates. The child did not promptly report the rape. It was only discovered after her mother found that she had contracted gonorrhea. The explanation for the delay is that the child had been threatened by the accused person not to report to her mother lest she be killed. At her age she was quite impressionable such that she abided by the threat imposed by the accused. When her mother discovered the fact of her injuries she pointed elsewhere as she could not point to the accused as the perpetrator. The complainant told the court that the accused person carried a knife and she said she considered the accused a dangerous man. In my view it was a reasonable explanation as the child feared for her life.

In treating the evidence of the complaint I considered what was said in the case of Vilakati vs R 1982-86 S.L.R 358 at 359 where Hannah CJ had this to say:

“There is no rule of law requiring corroboration of the complainant’s evidence in a case such as the present one but there is a well-established cautionary rule of practice in regard of complainants in sexual cases in terms of which a trial court must warn itself of the dangers inherent in their evidence and accordingly should look for corroboration of all the essential elements of the offence. Thus, in a case of rape, the trial court should look for corroboration of the evidence of intercourse itself, the lack of consent alleged and the identity of the alleged offender. If any or all of these elements are uncorroborated the court must warn itself of the danger of convicting, and in such circumstances, it will only convict if acceptable and reliable evidence exists to show that the complainant is a credible and trustworthy witness”.

It appears to me that there is corroboration as to the fact of the intercourse itself. This is reflected in the medical report, which was entered as exhibit “C” where the doctor on examining the complainant found that she was sexually assaulted prior to her examination and that she has contracted gonorrhea. There is also the medical report of Dr Phillips who found upon examination that the accused person had contracted gonorrhea. The complainant was not sexually active at the time. Yet, it was shown that the accused person was sexually active at the time with a girlfriend who as it has been shown in defence evidence had other boyfriends besides the accused. Further, it has not been challenged by the defence that the accused had this disease.

In my view, there is no reason advanced why the complainant would tell lies against the accused person. The complainant despite her tender years was a credible and trustworthy witness and she was subjected to a lengthy and incisive cross-examination by the defence.

On the other hand the accused had merely put forth a bare denial. In my view the accused had the time and opportunity to commit this offence.

In the circumstances, I find the accused guilty as charged.

S.B. MAPHALALA

JUDGE

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