IN THE HIGH COURT OF SWAZILAND
CRIMINAL CASE NO. 58/00
IN THE MATTER BETWEEN:
CORAM : MATSEBULA J
FOR THE DEFENCE : IN PERSON
The indictment reads as follows and I will read it in full:-
The Director of Public Prosecutions directs and informs the honourable court that the abovementioned person hereinafter referred to as the accused is guilty of the following crimes:-
Count one - rape
The accused is guilty of the crime of rape. In that on diverse days during the period of February to September 1997, the particular dates of which are unknown to the prosecutor, and at or near [D] area in the [E] region. The said accused, an adult male, intentionally had unlawful sexual intercourse with [A]a female aged about 16 years. At the time he had sexual intercourse with her accused had no consent with her and therefore, according to the Crown he committed the crime of rape.
The Crown contends that the rape was attended by aggravating circumstances in the following manner:
The accused is the complainantâ€™s biological father;
The accused took advantage of the complainantâ€™s dependency on him and his authority as a father;
The accused threatened the complainant with assault and death to keep her from reporting the matter;
The accused had unlawful intercourse with the complainant on several occasions before she went to school; (in other words, earlier in the morning, after the mother had left, you would then call your daughter to your room and have sexual intercourse with her)
The accused abused the relationship of trust and this has traumatized the complainant ;
The complainant fell pregnant as a result of the repeated unlawful intercourse.
Count two - incest
The accused is guilty of the crime of incest. In that on diverse days during the period of February and September 1997, the particular dates of which are unknown to the prosecutor, and at or near [D] in the [E] region. The said accused, an adult male, did unlawfully and intentionally have sexual intercourse with [A] , a female, the said accused being a blood relationship to the father he was consequently legally prohibited from marrying.
Count three - incitement to abortion
The accused is guilty of the crime of incitement to abortion. In that during the month of December 1997, the particular date of which is unknown to the prosecutor and at or near [F], [G], in the [E] region the said accused did incite [J] to procure an abortion on [A] who was then pregnant with a living foetus with the intent to procure the miscarriage of [A] thus he committed the crime of incitement to abortion.
The accused was not represented and pleaded not guilty to all three counts. On count three, i.e. incitement to commit abortion, it turned out that the person alleged to have been approached by the accused to procure abortion on the minor complainant subsequently died after the commission of the alleged crime. The Crown therefore could not proceed on that count and it follows that the accused should be acquitted and discharged on that count, and I so acquit and discharge him.
It must be understood that it does not mean he did not commit the crime. We are following the procedure. It is only that the Crown was unable to lead the evidence because the person accused had procured to perform the abortion on the complainant subsequently died.
On the second and third counts, he is alleged to have committed the crime on various occasions dating from the months of February 1997 to September 1997. In matters where the crimes are alleged to have been committed over such a wide period of time one cannot expect the complainant to give exact dates on which such crimes were committed. Especially in particular this case where the complainant was firstly a minor and not only that but also a biological daughter of the accused and as such being the direct authority and supervision of the accused.
In the summary of evidence the doctor who examined the complainant was not listed as one of the Crown witnesses. However, the Crown applied for leave that he be called and I was of the view that it would both be in the interest of the accused and the Crown to have the doctor called. The doctor gave evidence as PW6 and handed in as exhibit â€œAâ€ a medical examination report carried out on the complainant. According to exhibit â€œAâ€, the age of the complainant was estimated as being 16 as on the 18th February 1998. She had had last her menstrual period on the 10th August 1998 and was pregnant. In the doctorâ€™s opinion she had been so pregnant for plus minus five months, when he examined her. This evidence was not materially disputed by the accused except that he was not happy about the time the crime was alleged to have been committed and the time complainant was first examined by the doctor.
Having read through the proceedings, the answer to the accusedâ€™s concern, if one reads the evidence of PW2 the stepmother of the complainant whose evidence will be dealt with below. The complainant PW1 [A] stated she was born on the [date] 1981 and this evidence although of hearsay in nature, was subsequently confirmed by PW1â€™s biological mother PW3 [K]. After the confirmation, the court accepted the date of birth of the complainant.
For the record, it is necessary to state that PW3 separated from the accused after the birth of PW1, the complainant in this case. Accused then got married PW2 in Swazi law and custom who became the surrogate mother of PW1. The court allowed PW2â€™s evidence to be given against her husband, even though as his wife under normal circumstances she would have been prohibited. This exception is based on the principle that any crime committed by one of the spouse against the other or children, this prohibition against giving evidence in the court of law is lifted. It is against that background that the court allowed the wife to give evidence against her husband.
PW1 stated that the accused was her biological father, a fact not challenged by the accused. It was her evidence that between the 22nd February 1997 and December 1997 she was residing with the accused and attending school at [name of school]. She stated that she stayed with her stepmother PW2 borne [K]. PW2 would leave early in the morning and the accused would then call complainant to his bedroom when she was about to leave for school. Once in the bedroom the two being alone, accused would order her to remove her pair of panties. She would oblige and accused would lie down facing upwards and order her to sit on him, in particular, she would examine her private parts to see if she was still a virgin. To achieve this examination, accused would then put his penis in her private parts. Once this was done he would then order her to dress up and leave for school. This examination of her private parts by accused was carried out on various occasions and accused would warn her never to tell anyone what he did to her. The only time the accused did not do the examination of PW1â€™s private parts was when she was going through her menstrual periods, so she stated in her evidence. It was her evidence that at none of all these occasions did she give accused consent to examine her private parts by inserting his private part in her. She said accused strongly warned her never to reveal this examination of her private parts by him to anyone or else he would chop her with an axe. She subsequently became pregnant, she said. It was her evidence that she never reported these examinations of her private parts by accused because of his threats to chop her with an axe. Once she become pregnant, her stepmother PW2 noticed and confronted her. She then revealed who was responsible for her pregnancy. Her father was, she said. She had not done so before because she feared the threats made by her father the accused.
According to PW1, her stepmother reported the matter to the owner of the property where the accused and his family resided. PW2 reported what the complainant revealed to her immediately after the confrontation by her. The court accepts the reasons advanced by PW1 for her failure to report the rape sooner after the first account of rape. She had been threatened by the accused who was in authority over her and was her own father.
The court further accepts that PW2 complainantâ€™s stepmother immediately made a report of what she had been told by PW1 when she confronted her about the pregnancy. The court will deal in due course how PW2 discovered that PW1 was infact pregnant. These reports referred to above are not accepted as being corroborated of the complainantâ€™s evidence that she had infact been raped by the accused because they are a violation of the hearsay rule. These reports are given to show consistency of the complainantâ€™s evidence and also to show the absence of her consent. (see in this regard SCHMIDT 371-2; HOFFMAN AND ZEFFERT 23-6 (CROSS 238-44)).
It was PW1â€™s evidence that the person to whom PW2 made a report was a lady [L]. PW1 stated when [L] confronted the accused with the report, he told [L] that he had made a mistake by having sexual intercourse with his daughter PW1. He further told [L] that this mistake led to her daughter PW1 falling pregnant. PW1 said PW2 was so incensed by her husbandâ€™s behaviour towards PW1 that she stated she would henceforth have nothing with both PW1 and her father and would no longer even prepare food for them.
PW2 even reprimanded PW1 for having allowed her father to have sex with her and she started weeping and went into her bedroom. It was PW1â€™s evidence that the accused first denied having impregnanted the complainant but later admitted. The matter was subsequently reported to the Save The Childrenâ€™s Fund and PW1 also made a similar report to a lady [O] PW5.
PW2 [K] also gave evidence. She said she was the accusedâ€™s wife married to him in terms of the Swazi Law and Custom. She stated she resided with accused and the children at [D]. She admitted that she was not the biological mother of the complainant and stated that she met PW1â€™s biological mother for the first time when she first discovered that PW1 had been impregnated by accused.
It was her evidence that she was in the habit of providing for PW1 and her sister toiletries including menstrual pads. She would do this not when they were undergoing the menstrual periods, but would give them so that if they went through their menstrual periods they would find them handy. She said, partly, this system of providing menstrual pads to the girls was to supervise that they do not become pregnant. She said, in the course of time PW1 failed to come to collect her sanitary pads. She called her and asked her why she had not come for her pads and PW1 said she had not gone for her menstrual periods. She said providing these girls with sanitary pads was also a means of supervising that they remained virgins as long as they were under her supervision. She PW1 failed to collect her pads for two consecutive months. PW2 said she started noticing signs that not all was well with PW1 and she decided to confront her. PW1 first denied that she was pregnant. She also informed the accused that PW1 had not gone for her menstrual periods for plus minus two months. The accused said he did not know what to do with PW1. That itself in the courtâ€™s opinion is not an answer that can be expected from a father who is concerned about her daughterâ€™s welfare. He did not seem to be shocked about the report his wife gave him about his daughter. However, PW2 allowed PW1 to write her final examination in December even though she was now sure that she was pregnant. PW2 again confronted PW1 who then for the first time implicated her father, in the presence of the father. When she confronted the father, PW2 enquired from PW1 how long has the accused been having sexual intercourse with her and she informed the stepmother that it started way back in February 1997.
PW2 then called the accused in who had been outside at the time and informed him what PW1 had told her about who impregnated her. She said accused responded by asking how certain was she that he was responsible for PW1â€™s pregnancy. That again is not a response from a father who should be concerned about his daughterâ€™s pregnancy. She said she and accused started a quarrel. PW2 then sent and called the [L], PW4 who has been referred to earlier on. Her name is [P] and informed her what PW1 had been reported to her.
PW4 confronted accused in the presence of PW1, and PW2 about the pregnancy of PW1. According to PW2, accused told PW4 that he had been tempted to have sexual intercourse with her daughter. The matter was reported to the Save The Children Fund. PW2 then decided to remove PW1 from the common home at [D] to her parental home at [Q]. PW2 said she did because she felt the child was being traumatized by remaining in the environment where this ghastly crime had been committed. However, PW1 was subsequently removed or went away from [Q] in a mysterious. PW2 testified that she then intercepted a note in the handwriting of one [J], a colleague of hers at the hospital. She said she recognized the handwriting of [J] and in the note â€œegometricâ€, a substance she said, was used to prevent bleeding after child birth or abortion. By some strange twist of events, the accused PW2â€™s husband was within the premises of the hospital at that time. But according to PW2 said he had gone to the hospital to check on a sick boy, one [R]. Although he was aware that his wife was employed at the hospital he never worried to contact her and inform her that she was at the hospital to check on a [R] sick boy. After intercepting the note with the words â€œegometricâ€ written in the hand of [J], she confronted [J] and took her to accused.
In view of the fact that the Crown had abandoned this count of incitement, the court is not prepared to go into details about what went on or was discussed because subsequently [J] passed away as I have pointed out. Suffice it that the three i.e. PW2, accused and [S] then went to [S]â€™s residence. At [S]â€™s residence, PW1 the complainant in this matter who went missing in [Q] was now at [S]â€™s place.
In the presence of accused, [S], PW2 asked PW1 how she came to be at [S]â€™s place and she told her, at the presence of the accused that she had been taken her to [S]â€™s place. Accused did not deny PW1â€™s answer to PW2, nor did he give any response. PW2 then asked to speak to [S], in the absence of accused and PW1. Again, I do not propose to go into the contents of their conversation for the same reason that this count was abandoned by the Crown. The witness then took the child PW1 to the Save The Childrenâ€™s Fund. PW2 said when all this was happening accused was protesting saying where was PW2 taking the child to; was she intending to get him into trouble? PW2 said she would respond by saying that all she was doing was in the interest of the child PW1. From the Save The Childrensâ€™ Fund, the matter was reported to [G] Police station. PW2 said the child told her that she could not report to her about what accused had done to her because he had threatened to kill her if she did.
Accused had no cross-examination to put to PW2.
The court put certain questions to PW2 and from her answers it was very clear that although she herself had no children of her own by the accused, the children had found with accused she had accepted them as their own biological mother. She stated that the children appreciated the provision of food and other necessities needed by girls of their age.
PW3 [K] gave evidence to the effect that she was the biological mother of PW1 and that PW1 was born on 24th April 1981. She said she left accused in 1988 leaving PW1 and the other children with accused.
I have already referred to the evidence of PW4 [P] was the woman PW2 reported to when she discovered that PW1 had been pregnanted by the accused.
It was PW4â€™s evidence that she had confronted the accused about the report and accused had said he had been tempted to have sexual intercourse with PW1. It was further her evidence that PW1 confirmed, in the presence of accused and herself and PW2 that accused had infact had sexual intercourse with her resulting in her falling pregnant.
Under cross-examination by accused, the witness PW5 [T] was adamant that the accused had admitted to her that he had infact impregnated his daughter. PW5 said she then discussed adoption as a solution so that PW1 can continue with her schooling. It was her answer that accused told her that he had no idea how one goes about effecting adoption but the witness had suggested that the child be adopted by some other people. She said the accused, instead, suggested to the witness that PW1 abort so that she can go back to school.
The court put certain questions to PW4 to clarify how the question of adoption cropped up. The witness further stated that even if accused had accepted the idea of adoption that would not have meant that the representative of the Save The Childrenâ€™s Fund would not have reported the accused to the police.
I have already referred to the evidence of the doctor PW6. After PW6 had given his evidence in chief the accused asked if he could be allowed a postponement before cross-examining the doctor, to enable him to study the contents of exhibit â€œAâ€. This application was granted to the accused. Accused cross-examined the doctor, but nothing much of substance turns on the cross-examination.
Detective Constable Wilmoth Tsabedze gave evidence as the investigating officer. The accused put questions which were aimed at the way he was concerned about when the charge was laid at the police station for the first time. He was also concerned about the different dates reflected on exhibit â€œAâ€. One date by the station commander reads 22nd July 1997 whereas according to the doctor, the complainant was examined by him in February 1998. And there was further discrepancy in so far as the dates are concerned, there is the hospital date stamp which reads the 22nd. According to the constable he received the dockets on the 7th February 1998. PW7 stated that PW1 reported the crime on the 4th February 1998.
In my view, this could hardly be the correct dates. It is clear that these dates reflected in exhibit â€œAâ€ long after the repeated dates and incest has been committed by the accused because the complainant was only examined after she had been pregnanted by the accused and she was examined because she was bleeding. In other words, she did not, during the month of February 1997 go straight to the doctor to be examined. This went on until she became pregnant; and until she had been confronted by the mother and then the matter was reported.
The doctor also stated in his report that the complainant had been brought to him for examination because she was bleeding. When examining her, he found that she was already plus minus five months pregnant. It follows therefore that the docket would not have been opened on the 4th February 1998.
The doctor examined the complainant on the 18th February 1998 and the station commanderâ€™s date stamp reflects the date of the 22nd July 1997. However, whatever the dates reflected, I am not persuaded that the differences in the dates are indicative that the charge against accused are therefore concocted.
When PW7 the constable gave evidence, he did not even have the docket before him, he merely just mentioned the dates. I would rather be inclined to accept the date reflected by the station commanderâ€™s date stamp which is the 22nd July 1997. The different dates in the dockets and the examination, certificates, and the office stamp by the hospital being 22nd April 1998 can be explained by the answer the doctor gave when cross-examined by the accused. The doctor answered and I quote, â€œAfter examining the patient, she was admitted to hospital and the findings were in the hospital chart. I filled in the document the following day, and sent it to my secretary.â€ That explains then why the doctor would have the 18th February 1998 whereas the secretaryâ€™s stamp would record 22nd April 1998. The doctorâ€™s secretary could have endorsed the stamp on exhibit â€œAâ€ after she had received it on the 22nd April 1998. Whatever the differences in the dates by the different officers, I am unable to conclude that because of these differences that the charges against the accused were therefore concocted.
The accusedâ€™s rights were fully explained to him after the close of the Crown case and he chose to give evidence on oath. In short, in his evidence, he denied that he ever had sexual intercourse with his daughter PW1. The question therefore does not even arise, the question of consent because the accused states that he never had sexual intercourse with PW1. He denies that he had said to any of the witnesses that he had been tempted to have sexual intercourse with PW1. He says he told all these witnesses that an extra-ordinary unexpected event befell his family, what he calls an â€œevil omenâ€. He says this was an â€œomenâ€ in the sense that he could never have expected his minor daughter would be impregnated at her age. He says the reason his wife incriminates him is because she was on the habit of taking PW1 to visit her home at [Q] where there were her brothersâ€™ sons. He says these sons impregnated his daughter. He says that he had been charged on the very same counts before a Magistrateâ€™s Court where he had been convicted and sentenced to an imprisonment for twelve years. He appealed against the conviction and sentence and the matter was brought before the High Court but the judges found that that Magistrate who tried the matter had no jurisdiction to impose a sentence of twelve years. Hence the referral of the matter which had been disposed by the Magistrate would then have the necessary jurisdiction to give an appropriate sentence.
The accused, when giving evidence went at great lengths in explaining why all the witnesses lied in their evidence in incriminating him. They had all been influenced by his wife. It was his evidence that she did this because he had warned her not to take his daughter to her parental home at [Q] but she persisted and this persistence resulted in her being impregnated by her brotherâ€™s sons.
Under cross-examination, he was asked why he never suggested to any of the witnesses that they were concocting the story against him. Throughout his evidence, his answers were either he did not know he had to do that or had already reported this fabrication against him to his parents (accused). He said one of the reasons he did not ask the questions is because he is a layman and not trained like Crown counsel was. He also said one of the reasons he did not put forth the crucial questions to the witnesses is because he has never been to court before. Even though accused mentioned that he had gone to his parents to report this â€œomenâ€ as he calls it. When he was afforded an opportunity and his right to explain one would have expected him, not withstanding that there is no onus to have called those people but he would have reported to them about her daughterâ€™s pregnancy by, as he alleges, her wifeâ€™s brotherâ€™s sons. I went to great length of explaining to him his legal rights in calling such witnesses but he declined to do so.
This court is aware that no onus on the accused to prove his innocence but it rests on the Crown to convince the court that it has proved its case beyond any reasonable doubt and no onus rests on the accused whatsoever. If he gives an explanation, even if that explanation is improbable, the court is not entitled to convict unless it is satisfied, not only that the explanation is improbable but that beyond any reasonable doubt it is false. If there is any reasonable possibility of his explanation being true, then he is entitled to his acquittal) see REX VS DIFFORD 1937AD 370 @373.
However, in the present case applying the above standard of proof I find that the Crown has proved its case beyond any reasonable doubt. The accusedâ€™s defence explanation of why all the Crown witnesses implicated him is rejected. He is acc ordingly found guilty as charged on counts 1 and 2 and he is acquitted and discharged on count 3.
One count one accused is sentenced to an imprisonment for fourteen years.
On count two he is sentenced to an imprisonment for eight years.
Both sentences are backdated to 2nd February 2000 i.e. the time he noted the appeal against Magistrates Court sentenced after serving part of his 12 years sentence imposed by the Magistrate.
This court orders that the sentence on count two runs concurrently with that on count one.