Court name
High Court of eSwatini
Case number
Criminal Case 26 of 2002

Rex v Khumalo and Another (Criminal Case 26 of 2002) [2003] SZHC 89 (12 September 2003);

Law report citations
Media neutral citation
[2003] SZHC 89
Coram
Maphalala, J









1


THE
HIGH COURT OF SWAZILAND REX


Vs


MSUNDUZA
KHUMALO


TIMOTHY
KHUMALO


Criminal
Case No. 26/2002


Coram S.B.
MAPHALALA - J


For
the Crown MS M. LANGWENYA


For
Accused No.1 IN PERSON


For
Accused No.2 MR. Z. JELE


JUDGEMENT


(12/09/2003)


The
two accused persons stand charged as follows:


"Count
1


Accused
no.1 is guilty of the crime of rape. In that upon or about the
period, January 2000 at or near Ecansini area, Hhohho region the said
accused person did intentionally have unlawful sexual intercourse
with Vuyisile Mamba, a female minor child aged about 7 years old, who
in law is incapable of consenting to sexual intercourse.


Count
2


2


Accused
no.2 is guilty of the crime of rape. In that upon or about the period
of January 2000, at or near Ecansini area, Hhohho region the said
accused person did intentionally have unlawful sexual intercourse
with Vuyisile Mamba, a female minor child aged about 7 years old, who
in law is incapable of consenting to sexual intercourse".


The
Crown contends that the rape in both counts is attended by
aggravating factors in that:


1. The
complainant is a minor;


2. The
complainant was an orphan and accused no.1 was responsible for her
welfare;


3. Both
accused persons are elderly men who stood in a loco parentis
relationship with the complainant;


4. When
accused no.1 had sexual intercourse with complainant, complainant was
a virgin; and


5. Both
accused person did not use a condom or take any precautionary
measures when having unlawful sexual intercourse thus exposing the
complainant to venereal diseases and HIV/Aids.


Both
accused persons pleaded not guilty to the charges. Accused no.1 is
conducting his own defence and accused no.2 is represented by Mr.
Jele. The Crown is represented by Miss Langwenya.


The
Crown called a total of five witnesses to prove its case. At the
close of the Crown case Mr. Jele for accused no.2 applied that
accused no. 2 be discharged in terms of Section 174 (4) of the
Criminal Procedure and Evidence Act (as amended). The import of which
was that the Crown at that stage had failed to advance a prima facie
case to put him to his defence. The application was opposed by the
Crown. The court found that the Crown had satisfied the requirements
of the Section and ruled that both accused persons had a case to
answer. A ruling in that respect forms part of this judgment, for
ease of reference.


As
accused no.1 was unrepresented the court fully explained his rights
at the close of the Crown's case. He elected to make a sworn
statement. Accused no. 2 also made a sworn statement being led by his
attorney Mr. Jele.


3


The
substantial facts by the Crown in this matter are that the
complainant PW3 is an orphan who had been adopted by accused no.1 and
his wife. Accused no.l's wife was the complainant aunt. Accused no.1
and no. 2 are elderly men aged 59 and 58 respectively. Complainant
lives in accused no. 1 's homestead while accused no. 2 is a
neighbour in the area of Ecansini, Ezulwini.

During
the month of August 2000, PW2 Hunter Shongwe was at a Sithole
homestead at Ezulwini when the complainant came rushing to him
crying. She was pursued by a certain woman who he ascertained later
was the child's aunt. PW2 was puzzled by this whole episode. Feeding
his curiosity he asked this child why she was not going to her aunt.
The child said her aunt was calling her to take her to a certain man.
PW1 then suspected that a crime had occurred between these people. He
then called the child to where he was and interrogated her. The child
confided in him implicating accused no.1. She told him that accused
no.1 threw her on a bed and then applied "Vaseline" on his
penis and in her vagina. Thereupon he placed his penis into her
vagina and proceeded to have sexual intercourse with her. After the
child had related this PW2 then reported the matter to the police.
Accused no. 1 and accused no.2 were then arrested for these offences.
She further narrated to PW2 how accused no. 2 called her to the
toilet and raped her. She complained to her aunt about the incident.


PW3
the complainant related at great length how she was raped by the
accused persons at different times.


PW1
Dr Themba Sithebe is the doctor who examined the complainant and
compiled exhibit "A" being a medical report where the
doctor opined as follows:


"Hymen
absent, easy but painful entry into vagina indicates there may have
been forced entry in the past. No trauma or bleeding seen at this
time, but may have been there earlier".


PW4
Rosemary Sithole related that the child PW3 confided in her that
accused no. 2 gave her oranges and thereafter led her to a toilet
where he had sexual intercourse with her. PW3 also told her about
accused no. 1 that when her aunt was away accused no.1 would kiss her
and also asked her to suck his private parts. This witness told the
court that she did not report this because she was afraid.


3


The
substantial facts by the Crown in this matter are that the
complainant PW3 is an orphan who had been adopted by accused no. 1
and his wife. Accused no.l's wife was the complainant aunt. Accused
no.1 and no. 2 are elderly men aged 59 and 58 respectively.
Complainant lives in accused no. l's homestead while accused no. 2 is
a neighbour in the area of Ecansini, Ezulwini.


During
the month of August 2000, PW2 Hunter Shongwe was at a Sithole
homestead at Ezulwini when the complainant came rushing to him
crying. She was pursued by a certain woman who he ascertained later
was the child's aunt. PW2 was puzzled by this whole episode. Feeding
his curiosity he asked this child why she was not going to her aunt.
The child said her aunt was calling her to take her to a certain man.
PW1 then suspected that a crime had occurred between these people. He
then called the child to where he was and interrogated her. The child
confided in him implicating accused no. 1. She told him that accused
no.1 threw her on a bed and then applied "Vaseline" on his
penis and in her vagina. Thereupon he placed his penis into her
vagina and proceeded to have sexual intercourse with her. After the
child had related this PW2 then reported the matter to the police.
Accused no.1 and accused no. 2 were then arrested for these offences.
She further narrated to PW2 how accused no. 2 called her to the
toilet and raped her. She complained to her aunt about the incident.


PW3
the complainant related at great length how she was raped by the
accused persons at different times.


PW1
Dr Themba Sithebe is the doctor who examined the complainant and
compiled exhibit "A" being a medical report where the
doctor opined as follows:


"Hymen
absent, easy but painful entry into vagina indicates there may have
been forced entry in the past. No trauma or bleeding seen at this
time, but may have been there earlier".


PW4
Rosemary Sithole related that the child PW3 confided in her that
accused no. 2 gave her oranges and thereafter led her to a toilet
where he had sexual intercourse with her. PW3 also told her about
accused no.1 that when her aunt was away accused no.1 would kiss her
and also asked her to suck his private parts. This witness told the
court that she did not report this because she was afraid.


4


PW5
2491 Sergeant Bhembe is the Investigating Officer in this case. He
related to the court how he conducted his investigation leading to
the arrest of both accused no. 1 and accused no. 2.

The
Crown's witnesses were thoroughly cross-examined by Mr. Jele for
accused no. 2 and also accused no. 1. The story put to them was that
they are fabricating a story against the accused persons.


The
two accused persons' evidence in their defence under oath is that
they did not commit these offences which the Crown has preferred
against them.


When
the matter came for arguments at the close of evidence Miss Langwenya
for the Crown contended that the Crown has proved its case beyond a
reasonable doubt as required by the law. Miss Langwenya relied
heavily on the authority of an article which appeared in the
Australian law journal titled "Comparative Evidence: Admission
of evidence of recent complainant in Sexual Offence Prosecutions -
Part 1 by Justice T.H. Smith and O.P. Holdenson QC dealing with
complaints of a complainant in sexual cases.


Mr.
Jele contended on behalf of accused no. 2 that the Crown has not
proved a case beyond a reasonable doubt as required by the law. He
submitted that he still maintains his arguments advanced at the close
of the Crown case where an application was made in terms of Section
174 (4) of the Criminal Procedure and Evidence Act (as amended).


I
have considered the evidence adduced in this matter and also the
submissions made for and against the accused persons in this case. My
considered view is that on the facts the Crown has not proved a case
beyond a reasonable doubt in this case.


First
of all, the evidence of the police officer PW5 Bhembe as to how he
investigated the case leaves more questions than answers. The officer
could not assist the court as to when the alleged offences were
committed and further could not assist the court as to the month or
date on which the rape occurred. There was no attempt by the officer


5


to
investigate this crucial aspect of the matter. The court is left in
the dark as to when this rape took place. The Crown has applied to
the court to amend the charge sheet to reflect the dates revealed in
evidence. I do not think it would be proper to grant this application
at this stage of the proceedings without putting the accused persons
at a disadvantage. Even if the court were to do that it is not clear
from the evidence when the rape took place. The evidence in this
regard is so diverse that one will have to resort to guesswork. The
officer failed to take the complainant to the scene of crime in order
to confirm her evidence. The officer did not investigate the various
versions of the Crown witnesses against each other. The officer did
not talk to the people at the Sithole homestead who were close to
this matter.


Secondly,
the court should be cautious in accepting the evidence of the
complainant in that she failed to report the rape to the people who
were close to her but reported to a man (PW2) who was relatively a
stranger to her six months after the occurrence of the alleged
offence. The complainant failed to tell her aunt who was in locus
parentis. She also failed to tell the Sithole family which evidence
has shown was very close to her. There was evidence that complainant
frequented the Sithole homestead and would sometimes sleep there. The
Sithole family on a number of occasions have given her refuge when
she was in trouble with her aunt. One would have expected the
complainant to have appealed for help, advice or consolation from the
Sithole family as she had done so on previous occasions when she had
a tiff with her aunt.

According
to Swift's Law of Criminal Procedure (2nd ED) at 443 to be admissible
the complaint must:


"(a) Have
been made without undue delay and at the earliest opportunity which
under all the circumstances could reasonably have been expected (R vs
Gannon 1906 TS 114). The mere fact that the complainant, a young
girl, had made her complaint late did not require the court to draw
an adverse inference against her, provided that the court had
appreciated the risks in relying on the evidence of a young
complainant (R v M. 1959 (1) S.A. 352 (AD)). What could be reasonably
expected will, depend on all the circumstances, as to which (see R v
T. 1937 TPD 389 - victim aged five, six weeks reasonable; R v
Sideropoulos 1910 CPD 15; R v Gow 1940 (2) PHH148 (C); R v Ellis 1936
SWA 10; R v Du Plessis, 1922 TPD 153 - nine days unreasonable, R v
Msome 1931 S

L.
L.
J
351 more than four months unreasonable; R v Du Plessis 1922 TPD 153
one month unreasonable, child of sixteen; Westermeyer v R. 1911 NPD
197 - two days after, unreasonable in


6


case
of married woman; and see R v Tangent 1937 TPD 389; R v Meyer 1925
TPD 390 - three months unreasonable; R v Mapoyana (1899), 20 NLR 139
- two days after, admissible R v Busse 1932 SIVA 16;

R
v
C
1955 (4) SA 40 (N) - girl aged five, complaint five days after
admitted.


(b) Be
made to a person to whom the victim would naturally appeal for help,
advice or consolation (R v Jenkinson 21 SC 233).


(c) Not
have been solicited by questions of a leading and inducing or
intimidating character (Gannon's case (supra); S v T. 1963 (1) S.A.
484 (AD); R v Asamu 1938 SR 81 -inadmissible where made after two
days of persistent questioning; R v Osborne [1905] 1 KB 551; R v
Lillyman, [1896] 2 QB 167), but some reasonable persuasion to
overcome the initial and natural timidity to make the complaint will
not make it inadmissible.


(d) Be
made by a person competent to give evidence (R v Malete, 1907 TH
235), but the mere fact that the complainant is under the age of
consent does not exclude the complaint (R v C. (supra))."


Further
on the cautionary rule the learned authors Hoffmann's Zeffert, The
South African Law of Evidence (4th ED) had this to say at page 581;
and I quote:


"The
cautionary rule for children's evidence is similar to that for
accomplices witnesses cases. The danger of acting upon such evidence
must be borne in mind by the trier of fact. It makes no difference
whether the child's evidence has been sworn or unsworn. The court is
entitled to take into account the falsity or absence of evidence by
the accused or any other features which show that the child's
evidence is unquestionably true and the defence story false, but it
should not ordinarily convict unless the evidence of the child has
been treated with due caution. There is no requirement of law or
practice that requires that the child has to be corroborated either
in criminal or, a fortiori, in civil cases. There is no particular
age below which the cautionary rule applies; this is obviously a
matter of common sense to be applied in each particular case and the
degree of corroboration or other factors required to reduce the
danger of reliance on the child's evidence will vary with his age and
the other circumstances of the case, but the children were concerned.
And when the child is the only witness implicating the accused the
dangers are even greater -particularly in a sexual case." (my
emphasis)


The
above is the legal framework on which this case ought to be decided.

Thirdly,
there are a number of material contradictions in the evidence of the
Crown witnesses rendering their evidence remarkable. The evidence of
Hunter Shongwe (PW2) contradicts that of the complainant in a number
of material instances. Further,


7


the
evidence of Rosemary Sithole in some material respects contradicts
that of PW2 Hunter Shongwe and that of the complainant.


The
complainant told the court that accused no. 2 was the first one to
rape her yet PW2 and PW3 told the court that first it was accused no.
1 then accused no. 2. This is a material contradiction which tends to
affect her credibility. One would have expected PW2 and PW3 to
corroborate her in this regard.


Fourthly,
in my view the evidence of PW2 Hunter Shongwe was incredible in that
he told the court that when the complainant came to pour out her
heart to tell him what had befallen her, complainant was being
pursued by her aunt yet Rosemary Sithole (PW4) denied this aspect of
Shongwe's testimony. The complainant also denied that her aunt was at
the gate at the material time and was pursuing her. This was the most
important occurrence according to PW2 which aroused his suspicious
that something was amiss with the complainant.


Fifthly,
the evidence of the doctor further compounds the matter. The doctor
examined the complainant seven months after the alleged rape and also
told this court that the child was in pain when he examined her. When
the doctor was asked in cross-examination what that meant he told the
court that the sexual assault on the child might have been days old
or a week old or even months.


Another
uncanny aspect of PW2's evidence is that after the complainant had
related what had happened to her Shongwe did not approach the people
at the Sithole homestead where he was also a visitor to report what
he had just heard. In my view, that would have been a natural thing
to do under the circumstances. Instead Shongwe conducted his own
investigations and thereafter reported the matter to the police.


It
was unfortunate for the Crown case that the complainant's aunt
Betfusile Mamba died before giving evidence in this case. She was
listed at the third witness in the list of witness in the summary of
evidence. She was a crucial witness in this case as her name features
prominently in this sad occurrence. Her demise dealt a death knell to
the Crown's case.


8


All
in all, it would be unsafe to convict on the evidence before me as
there is a lingering doubt in my mind that the accused persons
committed these offences.

In
law, therefore the accused persons are given the benefit of the doubt
and found not guilty of the offences preferred against them.


As
an aside, my observation in this case is that the investigations were
of a very poor quality as it has been demonstrated above. The officer
merely recorded statements from witnesses without confirming some
aspects of their evidence. It is the duty of investigating officers
to conduct thorough investigations in criminal cases, moreso, in
cases of rape involving small children so that perpetrators of such
crimes are not let loose on account of poor police investigations.


They
are accordingly acquitted.


S.B.
MAPH
ALALA


JUDGE