Court name
High Court of eSwatini
Case number
246 of 2010

R v Mkhabela (246 of 2010) [2011] SZHC 33 (09 June 2011);

Law report citations
Media neutral citation
[2011] SZHC 33

  

 

IN THE HIGH COURT OF SWAZILAND

 

 

HELD AT MBABANE                        CRIM. CASE NO. 246/10

 

In the matter between:

 

 

REX

 

v

 

MPUNDANA CHAM’BHULUKELE MKHABELA

 

CORAM                                   :         Q.M. MABUZA –J

FOR THE CROWN                             :         MISS L. HLOPHE OF THE

                                                          DIRECTORATE OF PUBLIC

                                                          PROSECUTIONS

FOR THE ACCUSED                :         IN PERSON

                                                         

 

 

JUDGMENT ON SENTENCE 9/6/11

 

 

 

[1]    The Accused was charged and convicted with the crime of rape by the Magistrate’s Court, Manzini.   It was alleged that on or about the month of December 2005 to February 2006 on divers dates unknown to the Prosecutor at or near Gamula area in the Lubombo District the Accused did wrongfully, unlawfully and intentionally have unlawful sexual intercourse with Phumzile Khumalo a female minor of 10years of age who at the time could not in law consent to sexual intercourse.

 

[2]    The charge alleged aggravating factors as follows:

 

1.       Accused betrayed the trust and loyalty bestowed by the victim child complainant upon him.

 

2.       Accused had unlawful sexual intercourse with a female minor on several diverse dates.

 

3.       Accused had sexual intercourse with the female minor without taking any contraceptive measures to avoid the risk of infecting the said child victim with sexual transmitted diseases and H.I.V. and AIDS.

 

[3]    There was an alternative charge namely that the Accused was charged with the offence of contravening section 3 (1) of the Girls and Women’s Protection Act no. 39/1920 in that on or about the month of December 2005 to February 2006 on divers dates unknown to the Public Prosecutor and at or near Gamula area, in the Lubombo District, the said Accused did wrongfully and unlawfully have carnal connection or commit acts of an indecent nature with Phumzile Khumalo, a female minor under the age of sixteen (16) years.

 

[4]    After a full trial the Accused was convicted on the 26th November, 2007.  After conviction and before sentence the learned Magistrate held the view that this was a proper case for committal to the High Court for sentencing in terms of section 292 (1) of the Criminal and Procedure Act 67/1938 (The Act) which reads:

 

“If on the trial by a magistrate’s court any person is convicted of an offence, the court, on obtaining information about his character and antecedents, is of opinion that they are such that a greater punishment should be inflicted for the offence than it has the power to inflict, such court may, for reasons to be recorded in writing on the record of the case, instead of dealing with him in any other manner, commit him in custody to the High Court for sentence.

 

[5]    The learned Magistrate in the court a quo recorded on the record that he is committing the Accused to the High Court for sentencing because having looked at the case in its entirety he found that the offence was a very serious one such that it attracted a more severe sentence than could be passed by him, thus complying with the stated provision.

 

[6]    Section 293 of the Act outlines the procedure to be followed on the Accused’s committal for sentencing in the High Court and provides as follows: 

 

        “(1) …

(2) …

(3) If any person is brought before the High Court …, such court shall enquire into the circumstances of the case and, if, after consideration of the record, it is satisfied of the accused’s guilt, it shall thereafter proceed as if such person had pleaded guilty before it in respect of the offence for which he has been so committed.”

 

[7]    In the case of The State v Harry Ramatswidi Criminal Committal F1/2006 a Botswana High Court case, Masuku J. as he then was discussing a similar provision to ours namely section 296 (3) in the Criminal Procedure and Evidence Act of Botswana at page 2 of his judgment stated:

 

“It would appear to me that the object of this section is to enable this Court to consider the evidence on the record and the judgment of the Court a quo and to make up its own mind as to whether the conviction was in the circumstances proper.  This Court is not bound by the finding, of the trial Court in relation to the question of the accused’s guilt.” 

 

        I align myself with the learned judge’s opinion and in that spirit adopt his approach stated above.  Ultimately it is this Court that has to decide whether or not it is satisfied with the correctness of the conviction by the court a quo primarily because of the responsibility placed upon this court by section 293 (4) of our Act which states:

 

“If the High Court, under this section, passes any sentence upon any person he shall be deemed to have been tried and convicted for the offence concerned before the High Court.  (Amended P.49/1964.)

 

[8]    It is with the above in mind that I now examine the facts of the case before me in order to determine the propriety of the conviction and if I am satisfied that all is in order I shall mete out an appropriate sentence.

 

[9]    A summary of the evidence that led to the conviction of the Accused follows.

 

        The complainant, Phumzile Khumalo was twelve years old when she gave evidence in the court a quo on the 25/11/07.  The complainant was 10 years old when the alleged rape occurred.  She stated that sometime during December 2005 at about 9.00 a.m. she was alone at home because schools were closed.  The Accused who lived in the same area arrived and found her in the kitchen cooking.  He did not say anything to her, he took hold of her and pulled her.  When she cried out he shut her mouth with his hand.  He quickly removed his trousers forced her to lie down facing up and removed her panty.  He inserted his penis in her vagina, lay on top of her and made movements on her body.  When he had finished he stood up put on his trousers and left.  After he had left she also stood up and noticed that a whitish fluid like mucous was coming out of her vagina.  She felt pain when the Accused had sex with her.

 

[10]  Because her mother was not at home that day she was unable to report her ordeal.  She only reported to her mother on the following day but her mother did not do anything after the complainant had made a report to her.

 

[11]  Some two days later the Accused returned to the home of the complainant repeated his sexual antics with the complainant after sending her younger sister away to the local shop to buy some ice.  The complainant did not report this second incident to her mother because her mother had not done anything after the first report.

 

[12]  On the third occasion during 2006 before the schools opened for the first term, the Accused arrived at her home.  He found her alone in the kitchen, got hold of her, threw her down and removed his trousers.  When he got on top of her he was disturbed by a neighbour and got off her before he could carry out his intentions.

 

[13]  When schools reopened a female teacher, Miss Mabaso (PW4) noticed that the complainant was unable to walk properly as she spread her legs when she walked.  Miss Mabaso asked her what the matter was and the complainant informed her that she had some pain in her womb and sexual organs.  She invited her to her home examined her private parts and noticed that there was a foul smell that came from the complainant’s vagina.  After she had washed the complainant, the latter confided her story about the Accused having sex with her.  Ultimately the matter was reported to the police.  She was taken for medical examination.

 

[14]  The medical report was handed into court as an exhibit.  It recorded that an examination of the complainant who was ten years old was carried out on the 21st February 2006 at Good Shephered hospital.  It recorded that her labia majora was normal.  Her labia minora and restibula were reddened.  Her hymen was intact.  None of the doctors fingers could get into her vagina because she was not yet sexually active.  The examination  was consequently painful.  The opinion of the doctor is that:

 

“The findings  are suggestive of sexual abuse but are not conclusive.”

 

[15]  When the Accused gave evidence, he testified that he wished to state that he did request to have sex with the complainant but he ended up not having sex with her.  That was all he said.

 

[16]  When he was cross-examined he admitted that he would sometimes give the complainant money and buy her ice cubes.  He admitted that he had made a mistake by visiting the complainant and proposing love to her because he then got tempted to ask her for sex.  He denied that he penetrated the complainant.  He admitted that he only touched her and rubbed his penis into her thighs.  He also agreed that when he fondled her, his penis became erect.  It was put to him that he had raped the complainant.  His response was that even though he would make an attempt to penetrate her vagina his penis would not penetrate and no spermatozoa would come out.

 

[17]  In his reasons for judgment the learned Magistrate stated that the court noted that the doctor’s report shows reddishness of the vagina of the complainant.  He then concluded that that was a sign that penetration did take place. 

 

[18]  The doctor’s report does not in my view suggest any penetration.  The doctor’s report states that his findings of sexual abuse are not conclusive.  His findings therefore do not support penetration.

 

[19]  The complainant at the time of the alleged rape was very young and could not have possibly known what penetrative sex entailed.  The Accused on the other hand admits to having rubbed his elongated penis on her thighs.

 

[20]  All these facts taken together amount to indecent assault and the Accused should have been found guilty on the alternative charge of contravening section 3 (1) of the Girls and Women’s Protection Act no. 39/1920.

 

[21]  In the circumstances the conviction of rape is hereby set aside.  The Accused is found guilty of contravening section 3 (1) of the Girls and Women’s Protection Act no. 39/1920 and is sentenced to five (5) years imprisonment

 

without an option of a fine.  The sentence is backdated to the 26th March 2006 when the Accused was arrested.

 

 

Q.M. MABUZA

JUDGE OF THE HIGH COURT OF SWAZILAND

 

 

IN THE HIGH COURT OF SWAZILAND

 

 

HELD AT MBABANE                        CRIM. CASE NO. 246/10

 

In the matter between:

 

 

REX

 

v

 

MPUNDANA CHAM’BHULUKELE MKHABELA

 

CORAM                                   :         Q.M. MABUZA –J

FOR THE CROWN                             :         MISS L. HLOPHE OF THE

                                                          DIRECTORATE OF PUBLIC

                                                          PROSECUTIONS

FOR THE ACCUSED                :         IN PERSON

                                                         

 

 

JUDGMENT ON SENTENCE 9/6/11

 

 

 

[1]    The Accused was charged and convicted with the crime of rape by the Magistrate’s Court, Manzini.   It was alleged that on or about the month of December 2005 to February 2006 on divers dates unknown to the Prosecutor at or near Gamula area in the Lubombo District the Accused did wrongfully, unlawfully and intentionally have unlawful sexual intercourse with Phumzile Khumalo a female minor of 10years of age who at the time could not in law consent to sexual intercourse.

 

[2]    The charge alleged aggravating factors as follows:

 

1.       Accused betrayed the trust and loyalty bestowed by the victim child complainant upon him.

 

2.       Accused had unlawful sexual intercourse with a female minor on several diverse dates.

 

3.       Accused had sexual intercourse with the female minor without taking any contraceptive measures to avoid the risk of infecting the said child victim with sexual transmitted diseases and H.I.V. and AIDS.

 

[3]    There was an alternative charge namely that the Accused was charged with the offence of contravening section 3 (1) of the Girls and Women’s Protection Act no. 39/1920 in that on or about the month of December 2005 to February 2006 on divers dates unknown to the Public Prosecutor and at or near Gamula area, in the Lubombo District, the said Accused did wrongfully and unlawfully have carnal connection or commit acts of an indecent nature with Phumzile Khumalo, a female minor under the age of sixteen (16) years.

 

[4]    After a full trial the Accused was convicted on the 26th November, 2007.  After conviction and before sentence the learned Magistrate held the view that this was a proper case for committal to the High Court for sentencing in terms of section 292 (1) of the Criminal and Procedure Act 67/1938 (The Act) which reads:

 

“If on the trial by a magistrate’s court any person is convicted of an offence, the court, on obtaining information about his character and antecedents, is of opinion that they are such that a greater punishment should be inflicted for the offence than it has the power to inflict, such court may, for reasons to be recorded in writing on the record of the case, instead of dealing with him in any other manner, commit him in custody to the High Court for sentence.

 

[5]    The learned Magistrate in the court a quo recorded on the record that he is committing the Accused to the High Court for sentencing because having looked at the case in its entirety he found that the offence was a very serious one such that it attracted a more severe sentence than could be passed by him, thus complying with the stated provision.

 

[6]    Section 293 of the Act outlines the procedure to be followed on the Accused’s committal for sentencing in the High Court and provides as follows: 

 

        “(1) …

(2) …

(3) If any person is brought before the High Court …, such court shall enquire into the circumstances of the case and, if, after consideration of the record, it is satisfied of the accused’s guilt, it shall thereafter proceed as if such person had pleaded guilty before it in respect of the offence for which he has been so committed.”

 

[7]    In the case of The State v Harry Ramatswidi Criminal Committal F1/2006 a Botswana High Court case, Masuku J. as he then was discussing a similar provision to ours namely section 296 (3) in the Criminal Procedure and Evidence Act of Botswana at page 2 of his judgment stated:

 

“It would appear to me that the object of this section is to enable this Court to consider the evidence on the record and the judgment of the Court a quo and to make up its own mind as to whether the conviction was in the circumstances proper.  This Court is not bound by the finding, of the trial Court in relation to the question of the accused’s guilt.” 

 

        I align myself with the learned judge’s opinion and in that spirit adopt his approach stated above.  Ultimately it is this Court that has to decide whether or not it is satisfied with the correctness of the conviction by the court a quo primarily because of the responsibility placed upon this court by section 293 (4) of our Act which states:

 

“If the High Court, under this section, passes any sentence upon any person he shall be deemed to have been tried and convicted for the offence concerned before the High Court.  (Amended P.49/1964.)

 

[8]    It is with the above in mind that I now examine the facts of the case before me in order to determine the propriety of the conviction and if I am satisfied that all is in order I shall mete out an appropriate sentence.

 

[9]    A summary of the evidence that led to the conviction of the Accused follows.

 

        The complainant, Phumzile Khumalo was twelve years old when she gave evidence in the court a quo on the 25/11/07.  The complainant was 10 years old when the alleged rape occurred.  She stated that sometime during December 2005 at about 9.00 a.m. she was alone at home because schools were closed.  The Accused who lived in the same area arrived and found her in the kitchen cooking.  He did not say anything to her, he took hold of her and pulled her.  When she cried out he shut her mouth with his hand.  He quickly removed his trousers forced her to lie down facing up and removed her panty.  He inserted his penis in her vagina, lay on top of her and made movements on her body.  When he had finished he stood up put on his trousers and left.  After he had left she also stood up and noticed that a whitish fluid like mucous was coming out of her vagina.  She felt pain when the Accused had sex with her.

 

[10]  Because her mother was not at home that day she was unable to report her ordeal.  She only reported to her mother on the following day but her mother did not do anything after the complainant had made a report to her.

 

[11]  Some two days later the Accused returned to the home of the complainant repeated his sexual antics with the complainant after sending her younger sister away to the local shop to buy some ice.  The complainant did not report this second incident to her mother because her mother had not done anything after the first report.

 

[12]  On the third occasion during 2006 before the schools opened for the first term, the Accused arrived at her home.  He found her alone in the kitchen, got hold of her, threw her down and removed his trousers.  When he got on top of her he was disturbed by a neighbour and got off her before he could carry out his intentions.

 

[13]  When schools reopened a female teacher, Miss Mabaso (PW4) noticed that the complainant was unable to walk properly as she spread her legs when she walked.  Miss Mabaso asked her what the matter was and the complainant informed her that she had some pain in her womb and sexual organs.  She invited her to her home examined her private parts and noticed that there was a foul smell that came from the complainant’s vagina.  After she had washed the complainant, the latter confided her story about the Accused having sex with her.  Ultimately the matter was reported to the police.  She was taken for medical examination.

 

[14]  The medical report was handed into court as an exhibit.  It recorded that an examination of the complainant who was ten years old was carried out on the 21st February 2006 at Good Shephered hospital.  It recorded that her labia majora was normal.  Her labia minora and restibula were reddened.  Her hymen was intact.  None of the doctors fingers could get into her vagina because she was not yet sexually active.  The examination  was consequently painful.  The opinion of the doctor is that:

 

“The findings  are suggestive of sexual abuse but are not conclusive.”

 

[15]  When the Accused gave evidence, he testified that he wished to state that he did request to have sex with the complainant but he ended up not having sex with her.  That was all he said.

 

[16]  When he was cross-examined he admitted that he would sometimes give the complainant money and buy her ice cubes.  He admitted that he had made a mistake by visiting the complainant and proposing love to her because he then got tempted to ask her for sex.  He denied that he penetrated the complainant.  He admitted that he only touched her and rubbed his penis into her thighs.  He also agreed that when he fondled her, his penis became erect.  It was put to him that he had raped the complainant.  His response was that even though he would make an attempt to penetrate her vagina his penis would not penetrate and no spermatozoa would come out.

 

[17]  In his reasons for judgment the learned Magistrate stated that the court noted that the doctor’s report shows reddishness of the vagina of the complainant.  He then concluded that that was a sign that penetration did take place. 

 

[18]  The doctor’s report does not in my view suggest any penetration.  The doctor’s report states that his findings of sexual abuse are not conclusive.  His findings therefore do not support penetration.

 

[19]  The complainant at the time of the alleged rape was very young and could not have possibly known what penetrative sex entailed.  The Accused on the other hand admits to having rubbed his elongated penis on her thighs.

 

[20]  All these facts taken together amount to indecent assault and the Accused should have been found guilty on the alternative charge of contravening section 3 (1) of the Girls and Women’s Protection Act no. 39/1920.

 

[21]  In the circumstances the conviction of rape is hereby set aside.  The Accused is found guilty of contravening section 3 (1) of the Girls and Women’s Protection Act no. 39/1920 and is sentenced to five (5) years imprisonment

 

without an option of a fine.  The sentence is backdated to the 26th March 2006 when the Accused was arrested.

 

 

Q.M. MABUZA

JUDGE OF THE HIGH COURT OF SWAZILAND

 

 

IN THE HIGH COURT OF SWAZILAND

 

 

HELD AT MBABANE                        CRIM. CASE NO. 246/10

 

In the matter between:

 

 

REX

 

v

 

MPUNDANA CHAM’BHULUKELE MKHABELA

 

CORAM                                   :         Q.M. MABUZA –J

FOR THE CROWN                             :         MISS L. HLOPHE OF THE

                                                          DIRECTORATE OF PUBLIC

                                                          PROSECUTIONS

FOR THE ACCUSED                :         IN PERSON

                                                         

 

 

JUDGMENT ON SENTENCE 9/6/11

 

 

 

[1]    The Accused was charged and convicted with the crime of rape by the Magistrate’s Court, Manzini.   It was alleged that on or about the month of December 2005 to February 2006 on divers dates unknown to the Prosecutor at or near Gamula area in the Lubombo District the Accused did wrongfully, unlawfully and intentionally have unlawful sexual intercourse with Phumzile Khumalo a female minor of 10years of age who at the time could not in law consent to sexual intercourse.

 

[2]    The charge alleged aggravating factors as follows:

 

1.       Accused betrayed the trust and loyalty bestowed by the victim child complainant upon him.

 

2.       Accused had unlawful sexual intercourse with a female minor on several diverse dates.

 

3.       Accused had sexual intercourse with the female minor without taking any contraceptive measures to avoid the risk of infecting the said child victim with sexual transmitted diseases and H.I.V. and AIDS.

 

[3]    There was an alternative charge namely that the Accused was charged with the offence of contravening section 3 (1) of the Girls and Women’s Protection Act no. 39/1920 in that on or about the month of December 2005 to February 2006 on divers dates unknown to the Public Prosecutor and at or near Gamula area, in the Lubombo District, the said Accused did wrongfully and unlawfully have carnal connection or commit acts of an indecent nature with Phumzile Khumalo, a female minor under the age of sixteen (16) years.

 

[4]    After a full trial the Accused was convicted on the 26th November, 2007.  After conviction and before sentence the learned Magistrate held the view that this was a proper case for committal to the High Court for sentencing in terms of section 292 (1) of the Criminal and Procedure Act 67/1938 (The Act) which reads:

 

“If on the trial by a magistrate’s court any person is convicted of an offence, the court, on obtaining information about his character and antecedents, is of opinion that they are such that a greater punishment should be inflicted for the offence than it has the power to inflict, such court may, for reasons to be recorded in writing on the record of the case, instead of dealing with him in any other manner, commit him in custody to the High Court for sentence.

 

[5]    The learned Magistrate in the court a quo recorded on the record that he is committing the Accused to the High Court for sentencing because having looked at the case in its entirety he found that the offence was a very serious one such that it attracted a more severe sentence than could be passed by him, thus complying with the stated provision.

 

[6]    Section 293 of the Act outlines the procedure to be followed on the Accused’s committal for sentencing in the High Court and provides as follows: 

 

        “(1) …

(2) …

(3) If any person is brought before the High Court …, such court shall enquire into the circumstances of the case and, if, after consideration of the record, it is satisfied of the accused’s guilt, it shall thereafter proceed as if such person had pleaded guilty before it in respect of the offence for which he has been so committed.”

 

[7]    In the case of The State v Harry Ramatswidi Criminal Committal F1/2006 a Botswana High Court case, Masuku J. as he then was discussing a similar provision to ours namely section 296 (3) in the Criminal Procedure and Evidence Act of Botswana at page 2 of his judgment stated:

 

“It would appear to me that the object of this section is to enable this Court to consider the evidence on the record and the judgment of the Court a quo and to make up its own mind as to whether the conviction was in the circumstances proper.  This Court is not bound by the finding, of the trial Court in relation to the question of the accused’s guilt.” 

 

        I align myself with the learned judge’s opinion and in that spirit adopt his approach stated above.  Ultimately it is this Court that has to decide whether or not it is satisfied with the correctness of the conviction by the court a quo primarily because of the responsibility placed upon this court by section 293 (4) of our Act which states:

 

“If the High Court, under this section, passes any sentence upon any person he shall be deemed to have been tried and convicted for the offence concerned before the High Court.  (Amended P.49/1964.)

 

[8]    It is with the above in mind that I now examine the facts of the case before me in order to determine the propriety of the conviction and if I am satisfied that all is in order I shall mete out an appropriate sentence.

 

[9]    A summary of the evidence that led to the conviction of the Accused follows.

 

        The complainant, Phumzile Khumalo was twelve years old when she gave evidence in the court a quo on the 25/11/07.  The complainant was 10 years old when the alleged rape occurred.  She stated that sometime during December 2005 at about 9.00 a.m. she was alone at home because schools were closed.  The Accused who lived in the same area arrived and found her in the kitchen cooking.  He did not say anything to her, he took hold of her and pulled her.  When she cried out he shut her mouth with his hand.  He quickly removed his trousers forced her to lie down facing up and removed her panty.  He inserted his penis in her vagina, lay on top of her and made movements on her body.  When he had finished he stood up put on his trousers and left.  After he had left she also stood up and noticed that a whitish fluid like mucous was coming out of her vagina.  She felt pain when the Accused had sex with her.

 

[10]  Because her mother was not at home that day she was unable to report her ordeal.  She only reported to her mother on the following day but her mother did not do anything after the complainant had made a report to her.

 

[11]  Some two days later the Accused returned to the home of the complainant repeated his sexual antics with the complainant after sending her younger sister away to the local shop to buy some ice.  The complainant did not report this second incident to her mother because her mother had not done anything after the first report.

 

[12]  On the third occasion during 2006 before the schools opened for the first term, the Accused arrived at her home.  He found her alone in the kitchen, got hold of her, threw her down and removed his trousers.  When he got on top of her he was disturbed by a neighbour and got off her before he could carry out his intentions.

 

[13]  When schools reopened a female teacher, Miss Mabaso (PW4) noticed that the complainant was unable to walk properly as she spread her legs when she walked.  Miss Mabaso asked her what the matter was and the complainant informed her that she had some pain in her womb and sexual organs.  She invited her to her home examined her private parts and noticed that there was a foul smell that came from the complainant’s vagina.  After she had washed the complainant, the latter confided her story about the Accused having sex with her.  Ultimately the matter was reported to the police.  She was taken for medical examination.

 

[14]  The medical report was handed into court as an exhibit.  It recorded that an examination of the complainant who was ten years old was carried out on the 21st February 2006 at Good Shephered hospital.  It recorded that her labia majora was normal.  Her labia minora and restibula were reddened.  Her hymen was intact.  None of the doctors fingers could get into her vagina because she was not yet sexually active.  The examination  was consequently painful.  The opinion of the doctor is that:

 

“The findings  are suggestive of sexual abuse but are not conclusive.”

 

[15]  When the Accused gave evidence, he testified that he wished to state that he did request to have sex with the complainant but he ended up not having sex with her.  That was all he said.

 

[16]  When he was cross-examined he admitted that he would sometimes give the complainant money and buy her ice cubes.  He admitted that he had made a mistake by visiting the complainant and proposing love to her because he then got tempted to ask her for sex.  He denied that he penetrated the complainant.  He admitted that he only touched her and rubbed his penis into her thighs.  He also agreed that when he fondled her, his penis became erect.  It was put to him that he had raped the complainant.  His response was that even though he would make an attempt to penetrate her vagina his penis would not penetrate and no spermatozoa would come out.

 

[17]  In his reasons for judgment the learned Magistrate stated that the court noted that the doctor’s report shows reddishness of the vagina of the complainant.  He then concluded that that was a sign that penetration did take place. 

 

[18]  The doctor’s report does not in my view suggest any penetration.  The doctor’s report states that his findings of sexual abuse are not conclusive.  His findings therefore do not support penetration.

 

[19]  The complainant at the time of the alleged rape was very young and could not have possibly known what penetrative sex entailed.  The Accused on the other hand admits to having rubbed his elongated penis on her thighs.

 

[20]  All these facts taken together amount to indecent assault and the Accused should have been found guilty on the alternative charge of contravening section 3 (1) of the Girls and Women’s Protection Act no. 39/1920.

 

[21]  In the circumstances the conviction of rape is hereby set aside.  The Accused is found guilty of contravening section 3 (1) of the Girls and Women’s Protection Act no. 39/1920 and is sentenced to five (5) years imprisonment

 

without an option of a fine.  The sentence is backdated to the 26th March 2006 when the Accused was arrested.

 

 

Q.M. MABUZA

JUDGE OF THE HIGH COURT OF SWAZILAND

 

 

IN THE HIGH COURT OF SWAZILAND

 

 

HELD AT MBABANE                        CRIM. CASE NO. 246/10

 

In the matter between:

 

 

REX

 

v

 

MPUNDANA CHAM’BHULUKELE MKHABELA

 

CORAM                                   :         Q.M. MABUZA –J

FOR THE CROWN                             :         MISS L. HLOPHE OF THE

                                                          DIRECTORATE OF PUBLIC

                                                          PROSECUTIONS

FOR THE ACCUSED                :         IN PERSON

                                                         

 

 

JUDGMENT ON SENTENCE 9/6/11

 

 

 

[1]    The Accused was charged and convicted with the crime of rape by the Magistrate’s Court, Manzini.   It was alleged that on or about the month of December 2005 to February 2006 on divers dates unknown to the Prosecutor at or near Gamula area in the Lubombo District the Accused did wrongfully, unlawfully and intentionally have unlawful sexual intercourse with Phumzile Khumalo a female minor of 10years of age who at the time could not in law consent to sexual intercourse.

 

[2]    The charge alleged aggravating factors as follows:

 

1.       Accused betrayed the trust and loyalty bestowed by the victim child complainant upon him.

 

2.       Accused had unlawful sexual intercourse with a female minor on several diverse dates.

 

3.       Accused had sexual intercourse with the female minor without taking any contraceptive measures to avoid the risk of infecting the said child victim with sexual transmitted diseases and H.I.V. and AIDS.

 

[3]    There was an alternative charge namely that the Accused was charged with the offence of contravening section 3 (1) of the Girls and Women’s Protection Act no. 39/1920 in that on or about the month of December 2005 to February 2006 on divers dates unknown to the Public Prosecutor and at or near Gamula area, in the Lubombo District, the said Accused did wrongfully and unlawfully have carnal connection or commit acts of an indecent nature with Phumzile Khumalo, a female minor under the age of sixteen (16) years.

 

[4]    After a full trial the Accused was convicted on the 26th November, 2007.  After conviction and before sentence the learned Magistrate held the view that this was a proper case for committal to the High Court for sentencing in terms of section 292 (1) of the Criminal and Procedure Act 67/1938 (The Act) which reads:

 

“If on the trial by a magistrate’s court any person is convicted of an offence, the court, on obtaining information about his character and antecedents, is of opinion that they are such that a greater punishment should be inflicted for the offence than it has the power to inflict, such court may, for reasons to be recorded in writing on the record of the case, instead of dealing with him in any other manner, commit him in custody to the High Court for sentence.

 

[5]    The learned Magistrate in the court a quo recorded on the record that he is committing the Accused to the High Court for sentencing because having looked at the case in its entirety he found that the offence was a very serious one such that it attracted a more severe sentence than could be passed by him, thus complying with the stated provision.

 

[6]    Section 293 of the Act outlines the procedure to be followed on the Accused’s committal for sentencing in the High Court and provides as follows: 

 

        “(1) …

(2) …

(3) If any person is brought before the High Court …, such court shall enquire into the circumstances of the case and, if, after consideration of the record, it is satisfied of the accused’s guilt, it shall thereafter proceed as if such person had pleaded guilty before it in respect of the offence for which he has been so committed.”

 

[7]    In the case of The State v Harry Ramatswidi Criminal Committal F1/2006 a Botswana High Court case, Masuku J. as he then was discussing a similar provision to ours namely section 296 (3) in the Criminal Procedure and Evidence Act of Botswana at page 2 of his judgment stated:

 

“It would appear to me that the object of this section is to enable this Court to consider the evidence on the record and the judgment of the Court a quo and to make up its own mind as to whether the conviction was in the circumstances proper.  This Court is not bound by the finding, of the trial Court in relation to the question of the accused’s guilt.” 

 

        I align myself with the learned judge’s opinion and in that spirit adopt his approach stated above.  Ultimately it is this Court that has to decide whether or not it is satisfied with the correctness of the conviction by the court a quo primarily because of the responsibility placed upon this court by section 293 (4) of our Act which states:

 

“If the High Court, under this section, passes any sentence upon any person he shall be deemed to have been tried and convicted for the offence concerned before the High Court.  (Amended P.49/1964.)

 

[8]    It is with the above in mind that I now examine the facts of the case before me in order to determine the propriety of the conviction and if I am satisfied that all is in order I shall mete out an appropriate sentence.

 

[9]    A summary of the evidence that led to the conviction of the Accused follows.

 

        The complainant, Phumzile Khumalo was twelve years old when she gave evidence in the court a quo on the 25/11/07.  The complainant was 10 years old when the alleged rape occurred.  She stated that sometime during December 2005 at about 9.00 a.m. she was alone at home because schools were closed.  The Accused who lived in the same area arrived and found her in the kitchen cooking.  He did not say anything to her, he took hold of her and pulled her.  When she cried out he shut her mouth with his hand.  He quickly removed his trousers forced her to lie down facing up and removed her panty.  He inserted his penis in her vagina, lay on top of her and made movements on her body.  When he had finished he stood up put on his trousers and left.  After he had left she also stood up and noticed that a whitish fluid like mucous was coming out of her vagina.  She felt pain when the Accused had sex with her.

 

[10]  Because her mother was not at home that day she was unable to report her ordeal.  She only reported to her mother on the following day but her mother did not do anything after the complainant had made a report to her.

 

[11]  Some two days later the Accused returned to the home of the complainant repeated his sexual antics with the complainant after sending her younger sister away to the local shop to buy some ice.  The complainant did not report this second incident to her mother because her mother had not done anything after the first report.

 

[12]  On the third occasion during 2006 before the schools opened for the first term, the Accused arrived at her home.  He found her alone in the kitchen, got hold of her, threw her down and removed his trousers.  When he got on top of her he was disturbed by a neighbour and got off her before he could carry out his intentions.

 

[13]  When schools reopened a female teacher, Miss Mabaso (PW4) noticed that the complainant was unable to walk properly as she spread her legs when she walked.  Miss Mabaso asked her what the matter was and the complainant informed her that she had some pain in her womb and sexual organs.  She invited her to her home examined her private parts and noticed that there was a foul smell that came from the complainant’s vagina.  After she had washed the complainant, the latter confided her story about the Accused having sex with her.  Ultimately the matter was reported to the police.  She was taken for medical examination.

 

[14]  The medical report was handed into court as an exhibit.  It recorded that an examination of the complainant who was ten years old was carried out on the 21st February 2006 at Good Shephered hospital.  It recorded that her labia majora was normal.  Her labia minora and restibula were reddened.  Her hymen was intact.  None of the doctors fingers could get into her vagina because she was not yet sexually active.  The examination  was consequently painful.  The opinion of the doctor is that:

 

“The findings  are suggestive of sexual abuse but are not conclusive.”

 

[15]  When the Accused gave evidence, he testified that he wished to state that he did request to have sex with the complainant but he ended up not having sex with her.  That was all he said.

 

[16]  When he was cross-examined he admitted that he would sometimes give the complainant money and buy her ice cubes.  He admitted that he had made a mistake by visiting the complainant and proposing love to her because he then got tempted to ask her for sex.  He denied that he penetrated the complainant.  He admitted that he only touched her and rubbed his penis into her thighs.  He also agreed that when he fondled her, his penis became erect.  It was put to him that he had raped the complainant.  His response was that even though he would make an attempt to penetrate her vagina his penis would not penetrate and no spermatozoa would come out.

 

[17]  In his reasons for judgment the learned Magistrate stated that the court noted that the doctor’s report shows reddishness of the vagina of the complainant.  He then concluded that that was a sign that penetration did take place. 

 

[18]  The doctor’s report does not in my view suggest any penetration.  The doctor’s report states that his findings of sexual abuse are not conclusive.  His findings therefore do not support penetration.

 

[19]  The complainant at the time of the alleged rape was very young and could not have possibly known what penetrative sex entailed.  The Accused on the other hand admits to having rubbed his elongated penis on her thighs.

 

[20]  All these facts taken together amount to indecent assault and the Accused should have been found guilty on the alternative charge of contravening section 3 (1) of the Girls and Women’s Protection Act no. 39/1920.

 

[21]  In the circumstances the conviction of rape is hereby set aside.  The Accused is found guilty of contravening section 3 (1) of the Girls and Women’s Protection Act no. 39/1920 and is sentenced to five (5) years imprisonment

 

without an option of a fine.  The sentence is backdated to the 26th March 2006 when the Accused was arrested.

 

 

Q.M. MABUZA

JUDGE OF THE HIGH COURT OF SWAZILAND

 

 

IN THE HIGH COURT OF SWAZILAND

 

 

HELD AT MBABANE                        CRIM. CASE NO. 246/10

 

In the matter between:

 

 

REX

 

v

 

MPUNDANA CHAM’BHULUKELE MKHABELA

 

CORAM                                   :         Q.M. MABUZA –J

FOR THE CROWN                             :         MISS L. HLOPHE OF THE

                                                          DIRECTORATE OF PUBLIC

                                                          PROSECUTIONS

FOR THE ACCUSED                :         IN PERSON

                                                         

 

 

JUDGMENT ON SENTENCE 9/6/11

 

 

 

[1]    The Accused was charged and convicted with the crime of rape by the Magistrate’s Court, Manzini.   It was alleged that on or about the month of December 2005 to February 2006 on divers dates unknown to the Prosecutor at or near Gamula area in the Lubombo District the Accused did wrongfully, unlawfully and intentionally have unlawful sexual intercourse with Phumzile Khumalo a female minor of 10years of age who at the time could not in law consent to sexual intercourse.

 

[2]    The charge alleged aggravating factors as follows:

 

1.       Accused betrayed the trust and loyalty bestowed by the victim child complainant upon him.

 

2.       Accused had unlawful sexual intercourse with a female minor on several diverse dates.

 

3.       Accused had sexual intercourse with the female minor without taking any contraceptive measures to avoid the risk of infecting the said child victim with sexual transmitted diseases and H.I.V. and AIDS.

 

[3]    There was an alternative charge namely that the Accused was charged with the offence of contravening section 3 (1) of the Girls and Women’s Protection Act no. 39/1920 in that on or about the month of December 2005 to February 2006 on divers dates unknown to the Public Prosecutor and at or near Gamula area, in the Lubombo District, the said Accused did wrongfully and unlawfully have carnal connection or commit acts of an indecent nature with Phumzile Khumalo, a female minor under the age of sixteen (16) years.

 

[4]    After a full trial the Accused was convicted on the 26th November, 2007.  After conviction and before sentence the learned Magistrate held the view that this was a proper case for committal to the High Court for sentencing in terms of section 292 (1) of the Criminal and Procedure Act 67/1938 (The Act) which reads:

 

“If on the trial by a magistrate’s court any person is convicted of an offence, the court, on obtaining information about his character and antecedents, is of opinion that they are such that a greater punishment should be inflicted for the offence than it has the power to inflict, such court may, for reasons to be recorded in writing on the record of the case, instead of dealing with him in any other manner, commit him in custody to the High Court for sentence.

 

[5]    The learned Magistrate in the court a quo recorded on the record that he is committing the Accused to the High Court for sentencing because having looked at the case in its entirety he found that the offence was a very serious one such that it attracted a more severe sentence than could be passed by him, thus complying with the stated provision.

 

[6]    Section 293 of the Act outlines the procedure to be followed on the Accused’s committal for sentencing in the High Court and provides as follows: 

 

        “(1) …

(2) …

(3) If any person is brought before the High Court …, such court shall enquire into the circumstances of the case and, if, after consideration of the record, it is satisfied of the accused’s guilt, it shall thereafter proceed as if such person had pleaded guilty before it in respect of the offence for which he has been so committed.”

 

[7]    In the case of The State v Harry Ramatswidi Criminal Committal F1/2006 a Botswana High Court case, Masuku J. as he then was discussing a similar provision to ours namely section 296 (3) in the Criminal Procedure and Evidence Act of Botswana at page 2 of his judgment stated:

 

“It would appear to me that the object of this section is to enable this Court to consider the evidence on the record and the judgment of the Court a quo and to make up its own mind as to whether the conviction was in the circumstances proper.  This Court is not bound by the finding, of the trial Court in relation to the question of the accused’s guilt.” 

 

        I align myself with the learned judge’s opinion and in that spirit adopt his approach stated above.  Ultimately it is this Court that has to decide whether or not it is satisfied with the correctness of the conviction by the court a quo primarily because of the responsibility placed upon this court by section 293 (4) of our Act which states:

 

“If the High Court, under this section, passes any sentence upon any person he shall be deemed to have been tried and convicted for the offence concerned before the High Court.  (Amended P.49/1964.)

 

[8]    It is with the above in mind that I now examine the facts of the case before me in order to determine the propriety of the conviction and if I am satisfied that all is in order I shall mete out an appropriate sentence.

 

[9]    A summary of the evidence that led to the conviction of the Accused follows.

 

        The complainant, Phumzile Khumalo was twelve years old when she gave evidence in the court a quo on the 25/11/07.  The complainant was 10 years old when the alleged rape occurred.  She stated that sometime during December 2005 at about 9.00 a.m. she was alone at home because schools were closed.  The Accused who lived in the same area arrived and found her in the kitchen cooking.  He did not say anything to her, he took hold of her and pulled her.  When she cried out he shut her mouth with his hand.  He quickly removed his trousers forced her to lie down facing up and removed her panty.  He inserted his penis in her vagina, lay on top of her and made movements on her body.  When he had finished he stood up put on his trousers and left.  After he had left she also stood up and noticed that a whitish fluid like mucous was coming out of her vagina.  She felt pain when the Accused had sex with her.

 

[10]  Because her mother was not at home that day she was unable to report her ordeal.  She only reported to her mother on the following day but her mother did not do anything after the complainant had made a report to her.

 

[11]  Some two days later the Accused returned to the home of the complainant repeated his sexual antics with the complainant after sending her younger sister away to the local shop to buy some ice.  The complainant did not report this second incident to her mother because her mother had not done anything after the first report.

 

[12]  On the third occasion during 2006 before the schools opened for the first term, the Accused arrived at her home.  He found her alone in the kitchen, got hold of her, threw her down and removed his trousers.  When he got on top of her he was disturbed by a neighbour and got off her before he could carry out his intentions.

 

[13]  When schools reopened a female teacher, Miss Mabaso (PW4) noticed that the complainant was unable to walk properly as she spread her legs when she walked.  Miss Mabaso asked her what the matter was and the complainant informed her that she had some pain in her womb and sexual organs.  She invited her to her home examined her private parts and noticed that there was a foul smell that came from the complainant’s vagina.  After she had washed the complainant, the latter confided her story about the Accused having sex with her.  Ultimately the matter was reported to the police.  She was taken for medical examination.

 

[14]  The medical report was handed into court as an exhibit.  It recorded that an examination of the complainant who was ten years old was carried out on the 21st February 2006 at Good Shephered hospital.  It recorded that her labia majora was normal.  Her labia minora and restibula were reddened.  Her hymen was intact.  None of the doctors fingers could get into her vagina because she was not yet sexually active.  The examination  was consequently painful.  The opinion of the doctor is that:

 

“The findings  are suggestive of sexual abuse but are not conclusive.”

 

[15]  When the Accused gave evidence, he testified that he wished to state that he did request to have sex with the complainant but he ended up not having sex with her.  That was all he said.

 

[16]  When he was cross-examined he admitted that he would sometimes give the complainant money and buy her ice cubes.  He admitted that he had made a mistake by visiting the complainant and proposing love to her because he then got tempted to ask her for sex.  He denied that he penetrated the complainant.  He admitted that he only touched her and rubbed his penis into her thighs.  He also agreed that when he fondled her, his penis became erect.  It was put to him that he had raped the complainant.  His response was that even though he would make an attempt to penetrate her vagina his penis would not penetrate and no spermatozoa would come out.

 

[17]  In his reasons for judgment the learned Magistrate stated that the court noted that the doctor’s report shows reddishness of the vagina of the complainant.  He then concluded that that was a sign that penetration did take place. 

 

[18]  The doctor’s report does not in my view suggest any penetration.  The doctor’s report states that his findings of sexual abuse are not conclusive.  His findings therefore do not support penetration.

 

[19]  The complainant at the time of the alleged rape was very young and could not have possibly known what penetrative sex entailed.  The Accused on the other hand admits to having rubbed his elongated penis on her thighs.

 

[20]  All these facts taken together amount to indecent assault and the Accused should have been found guilty on the alternative charge of contravening section 3 (1) of the Girls and Women’s Protection Act no. 39/1920.

 

[21]  In the circumstances the conviction of rape is hereby set aside.  The Accused is found guilty of contravening section 3 (1) of the Girls and Women’s Protection Act no. 39/1920 and is sentenced to five (5) years imprisonment

 

without an option of a fine.  The sentence is backdated to the 26th March 2006 when the Accused was arrested.

 

 

Q.M. MABUZA

JUDGE OF THE HIGH COURT OF SWAZILAND

 

 

IN THE HIGH COURT OF SWAZILAND

 

 

HELD AT MBABANE                        CRIM. CASE NO. 246/10

 

In the matter between:

 

 

REX

 

v

 

MPUNDANA CHAM’BHULUKELE MKHABELA

 

CORAM                                   :         Q.M. MABUZA –J

FOR THE CROWN                             :         MISS L. HLOPHE OF THE

                                                          DIRECTORATE OF PUBLIC

                                                          PROSECUTIONS

FOR THE ACCUSED                :         IN PERSON

                                                         

 

 

JUDGMENT ON SENTENCE 9/6/11

 

 

 

[1]    The Accused was charged and convicted with the crime of rape by the Magistrate’s Court, Manzini.   It was alleged that on or about the month of December 2005 to February 2006 on divers dates unknown to the Prosecutor at or near Gamula area in the Lubombo District the Accused did wrongfully, unlawfully and intentionally have unlawful sexual intercourse with Phumzile Khumalo a female minor of 10years of age who at the time could not in law consent to sexual intercourse.

 

[2]    The charge alleged aggravating factors as follows:

 

1.       Accused betrayed the trust and loyalty bestowed by the victim child complainant upon him.

 

2.       Accused had unlawful sexual intercourse with a female minor on several diverse dates.

 

3.       Accused had sexual intercourse with the female minor without taking any contraceptive measures to avoid the risk of infecting the said child victim with sexual transmitted diseases and H.I.V. and AIDS.

 

[3]    There was an alternative charge namely that the Accused was charged with the offence of contravening section 3 (1) of the Girls and Women’s Protection Act no. 39/1920 in that on or about the month of December 2005 to February 2006 on divers dates unknown to the Public Prosecutor and at or near Gamula area, in the Lubombo District, the said Accused did wrongfully and unlawfully have carnal connection or commit acts of an indecent nature with Phumzile Khumalo, a female minor under the age of sixteen (16) years.

 

[4]    After a full trial the Accused was convicted on the 26th November, 2007.  After conviction and before sentence the learned Magistrate held the view that this was a proper case for committal to the High Court for sentencing in terms of section 292 (1) of the Criminal and Procedure Act 67/1938 (The Act) which reads:

 

“If on the trial by a magistrate’s court any person is convicted of an offence, the court, on obtaining information about his character and antecedents, is of opinion that they are such that a greater punishment should be inflicted for the offence than it has the power to inflict, such court may, for reasons to be recorded in writing on the record of the case, instead of dealing with him in any other manner, commit him in custody to the High Court for sentence.

 

[5]    The learned Magistrate in the court a quo recorded on the record that he is committing the Accused to the High Court for sentencing because having looked at the case in its entirety he found that the offence was a very serious one such that it attracted a more severe sentence than could be passed by him, thus complying with the stated provision.

 

[6]    Section 293 of the Act outlines the procedure to be followed on the Accused’s committal for sentencing in the High Court and provides as follows: 

 

        “(1) …

(2) …

(3) If any person is brought before the High Court …, such court shall enquire into the circumstances of the case and, if, after consideration of the record, it is satisfied of the accused’s guilt, it shall thereafter proceed as if such person had pleaded guilty before it in respect of the offence for which he has been so committed.”

 

[7]    In the case of The State v Harry Ramatswidi Criminal Committal F1/2006 a Botswana High Court case, Masuku J. as he then was discussing a similar provision to ours namely section 296 (3) in the Criminal Procedure and Evidence Act of Botswana at page 2 of his judgment stated:

 

“It would appear to me that the object of this section is to enable this Court to consider the evidence on the record and the judgment of the Court a quo and to make up its own mind as to whether the conviction was in the circumstances proper.  This Court is not bound by the finding, of the trial Court in relation to the question of the accused’s guilt.” 

 

        I align myself with the learned judge’s opinion and in that spirit adopt his approach stated above.  Ultimately it is this Court that has to decide whether or not it is satisfied with the correctness of the conviction by the court a quo primarily because of the responsibility placed upon this court by section 293 (4) of our Act which states:

 

“If the High Court, under this section, passes any sentence upon any person he shall be deemed to have been tried and convicted for the offence concerned before the High Court.  (Amended P.49/1964.)

 

[8]    It is with the above in mind that I now examine the facts of the case before me in order to determine the propriety of the conviction and if I am satisfied that all is in order I shall mete out an appropriate sentence.

 

[9]    A summary of the evidence that led to the conviction of the Accused follows.

 

        The complainant, Phumzile Khumalo was twelve years old when she gave evidence in the court a quo on the 25/11/07.  The complainant was 10 years old when the alleged rape occurred.  She stated that sometime during December 2005 at about 9.00 a.m. she was alone at home because schools were closed.  The Accused who lived in the same area arrived and found her in the kitchen cooking.  He did not say anything to her, he took hold of her and pulled her.  When she cried out he shut her mouth with his hand.  He quickly removed his trousers forced her to lie down facing up and removed her panty.  He inserted his penis in her vagina, lay on top of her and made movements on her body.  When he had finished he stood up put on his trousers and left.  After he had left she also stood up and noticed that a whitish fluid like mucous was coming out of her vagina.  She felt pain when the Accused had sex with her.

 

[10]  Because her mother was not at home that day she was unable to report her ordeal.  She only reported to her mother on the following day but her mother did not do anything after the complainant had made a report to her.

 

[11]  Some two days later the Accused returned to the home of the complainant repeated his sexual antics with the complainant after sending her younger sister away to the local shop to buy some ice.  The complainant did not report this second incident to her mother because her mother had not done anything after the first report.

 

[12]  On the third occasion during 2006 before the schools opened for the first term, the Accused arrived at her home.  He found her alone in the kitchen, got hold of her, threw her down and removed his trousers.  When he got on top of her he was disturbed by a neighbour and got off her before he could carry out his intentions.

 

[13]  When schools reopened a female teacher, Miss Mabaso (PW4) noticed that the complainant was unable to walk properly as she spread her legs when she walked.  Miss Mabaso asked her what the matter was and the complainant informed her that she had some pain in her womb and sexual organs.  She invited her to her home examined her private parts and noticed that there was a foul smell that came from the complainant’s vagina.  After she had washed the complainant, the latter confided her story about the Accused having sex with her.  Ultimately the matter was reported to the police.  She was taken for medical examination.

 

[14]  The medical report was handed into court as an exhibit.  It recorded that an examination of the complainant who was ten years old was carried out on the 21st February 2006 at Good Shephered hospital.  It recorded that her labia majora was normal.  Her labia minora and restibula were reddened.  Her hymen was intact.  None of the doctors fingers could get into her vagina because she was not yet sexually active.  The examination  was consequently painful.  The opinion of the doctor is that:

 

“The findings  are suggestive of sexual abuse but are not conclusive.”

 

[15]  When the Accused gave evidence, he testified that he wished to state that he did request to have sex with the complainant but he ended up not having sex with her.  That was all he said.

 

[16]  When he was cross-examined he admitted that he would sometimes give the complainant money and buy her ice cubes.  He admitted that he had made a mistake by visiting the complainant and proposing love to her because he then got tempted to ask her for sex.  He denied that he penetrated the complainant.  He admitted that he only touched her and rubbed his penis into her thighs.  He also agreed that when he fondled her, his penis became erect.  It was put to him that he had raped the complainant.  His response was that even though he would make an attempt to penetrate her vagina his penis would not penetrate and no spermatozoa would come out.

 

[17]  In his reasons for judgment the learned Magistrate stated that the court noted that the doctor’s report shows reddishness of the vagina of the complainant.  He then concluded that that was a sign that penetration did take place. 

 

[18]  The doctor’s report does not in my view suggest any penetration.  The doctor’s report states that his findings of sexual abuse are not conclusive.  His findings therefore do not support penetration.

 

[19]  The complainant at the time of the alleged rape was very young and could not have possibly known what penetrative sex entailed.  The Accused on the other hand admits to having rubbed his elongated penis on her thighs.

 

[20]  All these facts taken together amount to indecent assault and the Accused should have been found guilty on the alternative charge of contravening section 3 (1) of the Girls and Women’s Protection Act no. 39/1920.

 

[21]  In the circumstances the conviction of rape is hereby set aside.  The Accused is found guilty of contravening section 3 (1) of the Girls and Women’s Protection Act no. 39/1920 and is sentenced to five (5) years imprisonment

 

without an option of a fine.  The sentence is backdated to the 26th March 2006 when the Accused was arrested.

 

 

Q.M. MABUZA

JUDGE OF THE HIGH COURT OF SWAZILAND

 

 

IN THE HIGH COURT OF SWAZILAND

 

 

HELD AT MBABANE                        CRIM. CASE NO. 246/10

 

In the matter between:

 

 

REX

 

v

 

MPUNDANA CHAM’BHULUKELE MKHABELA

 

CORAM                                   :         Q.M. MABUZA –J

FOR THE CROWN                             :         MISS L. HLOPHE OF THE

                                                          DIRECTORATE OF PUBLIC

                                                          PROSECUTIONS

FOR THE ACCUSED                :         IN PERSON

                                                         

 

 

JUDGMENT ON SENTENCE 9/6/11

 

 

 

[1]    The Accused was charged and convicted with the crime of rape by the Magistrate’s Court, Manzini.   It was alleged that on or about the month of December 2005 to February 2006 on divers dates unknown to the Prosecutor at or near Gamula area in the Lubombo District the Accused did wrongfully, unlawfully and intentionally have unlawful sexual intercourse with Phumzile Khumalo a female minor of 10years of age who at the time could not in law consent to sexual intercourse.

 

[2]    The charge alleged aggravating factors as follows:

 

1.       Accused betrayed the trust and loyalty bestowed by the victim child complainant upon him.

 

2.       Accused had unlawful sexual intercourse with a female minor on several diverse dates.

 

3.       Accused had sexual intercourse with the female minor without taking any contraceptive measures to avoid the risk of infecting the said child victim with sexual transmitted diseases and H.I.V. and AIDS.

 

[3]    There was an alternative charge namely that the Accused was charged with the offence of contravening section 3 (1) of the Girls and Women’s Protection Act no. 39/1920 in that on or about the month of December 2005 to February 2006 on divers dates unknown to the Public Prosecutor and at or near Gamula area, in the Lubombo District, the said Accused did wrongfully and unlawfully have carnal connection or commit acts of an indecent nature with Phumzile Khumalo, a female minor under the age of sixteen (16) years.

 

[4]    After a full trial the Accused was convicted on the 26th November, 2007.  After conviction and before sentence the learned Magistrate held the view that this was a proper case for committal to the High Court for sentencing in terms of section 292 (1) of the Criminal and Procedure Act 67/1938 (The Act) which reads:

 

“If on the trial by a magistrate’s court any person is convicted of an offence, the court, on obtaining information about his character and antecedents, is of opinion that they are such that a greater punishment should be inflicted for the offence than it has the power to inflict, such court may, for reasons to be recorded in writing on the record of the case, instead of dealing with him in any other manner, commit him in custody to the High Court for sentence.

 

[5]    The learned Magistrate in the court a quo recorded on the record that he is committing the Accused to the High Court for sentencing because having looked at the case in its entirety he found that the offence was a very serious one such that it attracted a more severe sentence than could be passed by him, thus complying with the stated provision.

 

[6]    Section 293 of the Act outlines the procedure to be followed on the Accused’s committal for sentencing in the High Court and provides as follows: 

 

        “(1) …

(2) …

(3) If any person is brought before the High Court …, such court shall enquire into the circumstances of the case and, if, after consideration of the record, it is satisfied of the accused’s guilt, it shall thereafter proceed as if such person had pleaded guilty before it in respect of the offence for which he has been so committed.”

 

[7]    In the case of The State v Harry Ramatswidi Criminal Committal F1/2006 a Botswana High Court case, Masuku J. as he then was discussing a similar provision to ours namely section 296 (3) in the Criminal Procedure and Evidence Act of Botswana at page 2 of his judgment stated:

 

“It would appear to me that the object of this section is to enable this Court to consider the evidence on the record and the judgment of the Court a quo and to make up its own mind as to whether the conviction was in the circumstances proper.  This Court is not bound by the finding, of the trial Court in relation to the question of the accused’s guilt.” 

 

        I align myself with the learned judge’s opinion and in that spirit adopt his approach stated above.  Ultimately it is this Court that has to decide whether or not it is satisfied with the correctness of the conviction by the court a quo primarily because of the responsibility placed upon this court by section 293 (4) of our Act which states:

 

“If the High Court, under this section, passes any sentence upon any person he shall be deemed to have been tried and convicted for the offence concerned before the High Court.  (Amended P.49/1964.)

 

[8]    It is with the above in mind that I now examine the facts of the case before me in order to determine the propriety of the conviction and if I am satisfied that all is in order I shall mete out an appropriate sentence.

 

[9]    A summary of the evidence that led to the conviction of the Accused follows.

 

        The complainant, Phumzile Khumalo was twelve years old when she gave evidence in the court a quo on the 25/11/07.  The complainant was 10 years old when the alleged rape occurred.  She stated that sometime during December 2005 at about 9.00 a.m. she was alone at home because schools were closed.  The Accused who lived in the same area arrived and found her in the kitchen cooking.  He did not say anything to her, he took hold of her and pulled her.  When she cried out he shut her mouth with his hand.  He quickly removed his trousers forced her to lie down facing up and removed her panty.  He inserted his penis in her vagina, lay on top of her and made movements on her body.  When he had finished he stood up put on his trousers and left.  After he had left she also stood up and noticed that a whitish fluid like mucous was coming out of her vagina.  She felt pain when the Accused had sex with her.

 

[10]  Because her mother was not at home that day she was unable to report her ordeal.  She only reported to her mother on the following day but her mother did not do anything after the complainant had made a report to her.

 

[11]  Some two days later the Accused returned to the home of the complainant repeated his sexual antics with the complainant after sending her younger sister away to the local shop to buy some ice.  The complainant did not report this second incident to her mother because her mother had not done anything after the first report.

 

[12]  On the third occasion during 2006 before the schools opened for the first term, the Accused arrived at her home.  He found her alone in the kitchen, got hold of her, threw her down and removed his trousers.  When he got on top of her he was disturbed by a neighbour and got off her before he could carry out his intentions.

 

[13]  When schools reopened a female teacher, Miss Mabaso (PW4) noticed that the complainant was unable to walk properly as she spread her legs when she walked.  Miss Mabaso asked her what the matter was and the complainant informed her that she had some pain in her womb and sexual organs.  She invited her to her home examined her private parts and noticed that there was a foul smell that came from the complainant’s vagina.  After she had washed the complainant, the latter confided her story about the Accused having sex with her.  Ultimately the matter was reported to the police.  She was taken for medical examination.

 

[14]  The medical report was handed into court as an exhibit.  It recorded that an examination of the complainant who was ten years old was carried out on the 21st February 2006 at Good Shephered hospital.  It recorded that her labia majora was normal.  Her labia minora and restibula were reddened.  Her hymen was intact.  None of the doctors fingers could get into her vagina because she was not yet sexually active.  The examination  was consequently painful.  The opinion of the doctor is that:

 

“The findings  are suggestive of sexual abuse but are not conclusive.”

 

[15]  When the Accused gave evidence, he testified that he wished to state that he did request to have sex with the complainant but he ended up not having sex with her.  That was all he said.

 

[16]  When he was cross-examined he admitted that he would sometimes give the complainant money and buy her ice cubes.  He admitted that he had made a mistake by visiting the complainant and proposing love to her because he then got tempted to ask her for sex.  He denied that he penetrated the complainant.  He admitted that he only touched her and rubbed his penis into her thighs.  He also agreed that when he fondled her, his penis became erect.  It was put to him that he had raped the complainant.  His response was that even though he would make an attempt to penetrate her vagina his penis would not penetrate and no spermatozoa would come out.

 

[17]  In his reasons for judgment the learned Magistrate stated that the court noted that the doctor’s report shows reddishness of the vagina of the complainant.  He then concluded that that was a sign that penetration did take place. 

 

[18]  The doctor’s report does not in my view suggest any penetration.  The doctor’s report states that his findings of sexual abuse are not conclusive.  His findings therefore do not support penetration.

 

[19]  The complainant at the time of the alleged rape was very young and could not have possibly known what penetrative sex entailed.  The Accused on the other hand admits to having rubbed his elongated penis on her thighs.

 

[20]  All these facts taken together amount to indecent assault and the Accused should have been found guilty on the alternative charge of contravening section 3 (1) of the Girls and Women’s Protection Act no. 39/1920.

 

[21]  In the circumstances the conviction of rape is hereby set aside.  The Accused is found guilty of contravening section 3 (1) of the Girls and Women’s Protection Act no. 39/1920 and is sentenced to five (5) years imprisonment

 

without an option of a fine.  The sentence is backdated to the 26th March 2006 when the Accused was arrested.

 

 

Q.M. MABUZA

JUDGE OF THE HIGH COURT OF SWAZILAND

 

 

IN THE HIGH COURT OF SWAZILAND

 

 

HELD AT MBABANE                        CRIM. CASE NO. 246/10

 

In the matter between:

 

 

REX

 

v

 

MPUNDANA CHAM’BHULUKELE MKHABELA

 

CORAM                                   :         Q.M. MABUZA –J

FOR THE CROWN                             :         MISS L. HLOPHE OF THE

                                                          DIRECTORATE OF PUBLIC

                                                          PROSECUTIONS

FOR THE ACCUSED                :         IN PERSON

                                                         

 

 

JUDGMENT ON SENTENCE 9/6/11

 

 

 

[1]    The Accused was charged and convicted with the crime of rape by the Magistrate’s Court, Manzini.   It was alleged that on or about the month of December 2005 to February 2006 on divers dates unknown to the Prosecutor at or near Gamula area in the Lubombo District the Accused did wrongfully, unlawfully and intentionally have unlawful sexual intercourse with Phumzile Khumalo a female minor of 10years of age who at the time could not in law consent to sexual intercourse.

 

[2]    The charge alleged aggravating factors as follows:

 

1.       Accused betrayed the trust and loyalty bestowed by the victim child complainant upon him.

 

2.       Accused had unlawful sexual intercourse with a female minor on several diverse dates.

 

3.       Accused had sexual intercourse with the female minor without taking any contraceptive measures to avoid the risk of infecting the said child victim with sexual transmitted diseases and H.I.V. and AIDS.

 

[3]    There was an alternative charge namely that the Accused was charged with the offence of contravening section 3 (1) of the Girls and Women’s Protection Act no. 39/1920 in that on or about the month of December 2005 to February 2006 on divers dates unknown to the Public Prosecutor and at or near Gamula area, in the Lubombo District, the said Accused did wrongfully and unlawfully have carnal connection or commit acts of an indecent nature with Phumzile Khumalo, a female minor under the age of sixteen (16) years.

 

[4]    After a full trial the Accused was convicted on the 26th November, 2007.  After conviction and before sentence the learned Magistrate held the view that this was a proper case for committal to the High Court for sentencing in terms of section 292 (1) of the Criminal and Procedure Act 67/1938 (The Act) which reads:

 

“If on the trial by a magistrate’s court any person is convicted of an offence, the court, on obtaining information about his character and antecedents, is of opinion that they are such that a greater punishment should be inflicted for the offence than it has the power to inflict, such court may, for reasons to be recorded in writing on the record of the case, instead of dealing with him in any other manner, commit him in custody to the High Court for sentence.

 

[5]    The learned Magistrate in the court a quo recorded on the record that he is committing the Accused to the High Court for sentencing because having looked at the case in its entirety he found that the offence was a very serious one such that it attracted a more severe sentence than could be passed by him, thus complying with the stated provision.

 

[6]    Section 293 of the Act outlines the procedure to be followed on the Accused’s committal for sentencing in the High Court and provides as follows: 

 

        “(1) …

(2) …

(3) If any person is brought before the High Court …, such court shall enquire into the circumstances of the case and, if, after consideration of the record, it is satisfied of the accused’s guilt, it shall thereafter proceed as if such person had pleaded guilty before it in respect of the offence for which he has been so committed.”

 

[7]    In the case of The State v Harry Ramatswidi Criminal Committal F1/2006 a Botswana High Court case, Masuku J. as he then was discussing a similar provision to ours namely section 296 (3) in the Criminal Procedure and Evidence Act of Botswana at page 2 of his judgment stated:

 

“It would appear to me that the object of this section is to enable this Court to consider the evidence on the record and the judgment of the Court a quo and to make up its own mind as to whether the conviction was in the circumstances proper.  This Court is not bound by the finding, of the trial Court in relation to the question of the accused’s guilt.” 

 

        I align myself with the learned judge’s opinion and in that spirit adopt his approach stated above.  Ultimately it is this Court that has to decide whether or not it is satisfied with the correctness of the conviction by the court a quo primarily because of the responsibility placed upon this court by section 293 (4) of our Act which states:

 

“If the High Court, under this section, passes any sentence upon any person he shall be deemed to have been tried and convicted for the offence concerned before the High Court.  (Amended P.49/1964.)

 

[8]    It is with the above in mind that I now examine the facts of the case before me in order to determine the propriety of the conviction and if I am satisfied that all is in order I shall mete out an appropriate sentence.

 

[9]    A summary of the evidence that led to the conviction of the Accused follows.

 

        The complainant, Phumzile Khumalo was twelve years old when she gave evidence in the court a quo on the 25/11/07.  The complainant was 10 years old when the alleged rape occurred.  She stated that sometime during December 2005 at about 9.00 a.m. she was alone at home because schools were closed.  The Accused who lived in the same area arrived and found her in the kitchen cooking.  He did not say anything to her, he took hold of her and pulled her.  When she cried out he shut her mouth with his hand.  He quickly removed his trousers forced her to lie down facing up and removed her panty.  He inserted his penis in her vagina, lay on top of her and made movements on her body.  When he had finished he stood up put on his trousers and left.  After he had left she also stood up and noticed that a whitish fluid like mucous was coming out of her vagina.  She felt pain when the Accused had sex with her.

 

[10]  Because her mother was not at home that day she was unable to report her ordeal.  She only reported to her mother on the following day but her mother did not do anything after the complainant had made a report to her.

 

[11]  Some two days later the Accused returned to the home of the complainant repeated his sexual antics with the complainant after sending her younger sister away to the local shop to buy some ice.  The complainant did not report this second incident to her mother because her mother had not done anything after the first report.

 

[12]  On the third occasion during 2006 before the schools opened for the first term, the Accused arrived at her home.  He found her alone in the kitchen, got hold of her, threw her down and removed his trousers.  When he got on top of her he was disturbed by a neighbour and got off her before he could carry out his intentions.

 

[13]  When schools reopened a female teacher, Miss Mabaso (PW4) noticed that the complainant was unable to walk properly as she spread her legs when she walked.  Miss Mabaso asked her what the matter was and the complainant informed her that she had some pain in her womb and sexual organs.  She invited her to her home examined her private parts and noticed that there was a foul smell that came from the complainant’s vagina.  After she had washed the complainant, the latter confided her story about the Accused having sex with her.  Ultimately the matter was reported to the police.  She was taken for medical examination.

 

[14]  The medical report was handed into court as an exhibit.  It recorded that an examination of the complainant who was ten years old was carried out on the 21st February 2006 at Good Shephered hospital.  It recorded that her labia majora was normal.  Her labia minora and restibula were reddened.  Her hymen was intact.  None of the doctors fingers could get into her vagina because she was not yet sexually active.  The examination  was consequently painful.  The opinion of the doctor is that:

 

“The findings  are suggestive of sexual abuse but are not conclusive.”

 

[15]  When the Accused gave evidence, he testified that he wished to state that he did request to have sex with the complainant but he ended up not having sex with her.  That was all he said.

 

[16]  When he was cross-examined he admitted that he would sometimes give the complainant money and buy her ice cubes.  He admitted that he had made a mistake by visiting the complainant and proposing love to her because he then got tempted to ask her for sex.  He denied that he penetrated the complainant.  He admitted that he only touched her and rubbed his penis into her thighs.  He also agreed that when he fondled her, his penis became erect.  It was put to him that he had raped the complainant.  His response was that even though he would make an attempt to penetrate her vagina his penis would not penetrate and no spermatozoa would come out.

 

[17]  In his reasons for judgment the learned Magistrate stated that the court noted that the doctor’s report shows reddishness of the vagina of the complainant.  He then concluded that that was a sign that penetration did take place. 

 

[18]  The doctor’s report does not in my view suggest any penetration.  The doctor’s report states that his findings of sexual abuse are not conclusive.  His findings therefore do not support penetration.

 

[19]  The complainant at the time of the alleged rape was very young and could not have possibly known what penetrative sex entailed.  The Accused on the other hand admits to having rubbed his elongated penis on her thighs.

 

[20]  All these facts taken together amount to indecent assault and the Accused should have been found guilty on the alternative charge of contravening section 3 (1) of the Girls and Women’s Protection Act no. 39/1920.

 

[21]  In the circumstances the conviction of rape is hereby set aside.  The Accused is found guilty of contravening section 3 (1) of the Girls and Women’s Protection Act no. 39/1920 and is sentenced to five (5) years imprisonment

 

without an option of a fine.  The sentence is backdated to the 26th March 2006 when the Accused was arrested.

 

 

Q.M. MABUZA

JUDGE OF THE HIGH COURT OF SWAZILAND

 

 

IN THE HIGH COURT OF SWAZILAND

 

 

HELD AT MBABANE                        CRIM. CASE NO. 246/10

 

In the matter between:

 

 

REX

 

v

 

MPUNDANA CHAM’BHULUKELE MKHABELA

 

CORAM                                   :         Q.M. MABUZA –J

FOR THE CROWN                             :         MISS L. HLOPHE OF THE

                                                          DIRECTORATE OF PUBLIC

                                                          PROSECUTIONS

FOR THE ACCUSED                :         IN PERSON

                                                         

 

 

JUDGMENT ON SENTENCE 9/6/11

 

 

 

[1]    The Accused was charged and convicted with the crime of rape by the Magistrate’s Court, Manzini.   It was alleged that on or about the month of December 2005 to February 2006 on divers dates unknown to the Prosecutor at or near Gamula area in the Lubombo District the Accused did wrongfully, unlawfully and intentionally have unlawful sexual intercourse with Phumzile Khumalo a female minor of 10years of age who at the time could not in law consent to sexual intercourse.

 

[2]    The charge alleged aggravating factors as follows:

 

1.       Accused betrayed the trust and loyalty bestowed by the victim child complainant upon him.

 

2.       Accused had unlawful sexual intercourse with a female minor on several diverse dates.

 

3.       Accused had sexual intercourse with the female minor without taking any contraceptive measures to avoid the risk of infecting the said child victim with sexual transmitted diseases and H.I.V. and AIDS.

 

[3]    There was an alternative charge namely that the Accused was charged with the offence of contravening section 3 (1) of the Girls and Women’s Protection Act no. 39/1920 in that on or about the month of December 2005 to February 2006 on divers dates unknown to the Public Prosecutor and at or near Gamula area, in the Lubombo District, the said Accused did wrongfully and unlawfully have carnal connection or commit acts of an indecent nature with Phumzile Khumalo, a female minor under the age of sixteen (16) years.

 

[4]    After a full trial the Accused was convicted on the 26th November, 2007.  After conviction and before sentence the learned Magistrate held the view that this was a proper case for committal to the High Court for sentencing in terms of section 292 (1) of the Criminal and Procedure Act 67/1938 (The Act) which reads:

 

“If on the trial by a magistrate’s court any person is convicted of an offence, the court, on obtaining information about his character and antecedents, is of opinion that they are such that a greater punishment should be inflicted for the offence than it has the power to inflict, such court may, for reasons to be recorded in writing on the record of the case, instead of dealing with him in any other manner, commit him in custody to the High Court for sentence.

 

[5]    The learned Magistrate in the court a quo recorded on the record that he is committing the Accused to the High Court for sentencing because having looked at the case in its entirety he found that the offence was a very serious one such that it attracted a more severe sentence than could be passed by him, thus complying with the stated provision.

 

[6]    Section 293 of the Act outlines the procedure to be followed on the Accused’s committal for sentencing in the High Court and provides as follows: 

 

        “(1) …

(2) …

(3) If any person is brought before the High Court …, such court shall enquire into the circumstances of the case and, if, after consideration of the record, it is satisfied of the accused’s guilt, it shall thereafter proceed as if such person had pleaded guilty before it in respect of the offence for which he has been so committed.”

 

[7]    In the case of The State v Harry Ramatswidi Criminal Committal F1/2006 a Botswana High Court case, Masuku J. as he then was discussing a similar provision to ours namely section 296 (3) in the Criminal Procedure and Evidence Act of Botswana at page 2 of his judgment stated:

 

“It would appear to me that the object of this section is to enable this Court to consider the evidence on the record and the judgment of the Court a quo and to make up its own mind as to whether the conviction was in the circumstances proper.  This Court is not bound by the finding, of the trial Court in relation to the question of the accused’s guilt.” 

 

        I align myself with the learned judge’s opinion and in that spirit adopt his approach stated above.  Ultimately it is this Court that has to decide whether or not it is satisfied with the correctness of the conviction by the court a quo primarily because of the responsibility placed upon this court by section 293 (4) of our Act which states:

 

“If the High Court, under this section, passes any sentence upon any person he shall be deemed to have been tried and convicted for the offence concerned before the High Court.  (Amended P.49/1964.)

 

[8]    It is with the above in mind that I now examine the facts of the case before me in order to determine the propriety of the conviction and if I am satisfied that all is in order I shall mete out an appropriate sentence.

 

[9]    A summary of the evidence that led to the conviction of the Accused follows.

 

        The complainant, Phumzile Khumalo was twelve years old when she gave evidence in the court a quo on the 25/11/07.  The complainant was 10 years old when the alleged rape occurred.  She stated that sometime during December 2005 at about 9.00 a.m. she was alone at home because schools were closed.  The Accused who lived in the same area arrived and found her in the kitchen cooking.  He did not say anything to her, he took hold of her and pulled her.  When she cried out he shut her mouth with his hand.  He quickly removed his trousers forced her to lie down facing up and removed her panty.  He inserted his penis in her vagina, lay on top of her and made movements on her body.  When he had finished he stood up put on his trousers and left.  After he had left she also stood up and noticed that a whitish fluid like mucous was coming out of her vagina.  She felt pain when the Accused had sex with her.

 

[10]  Because her mother was not at home that day she was unable to report her ordeal.  She only reported to her mother on the following day but her mother did not do anything after the complainant had made a report to her.

 

[11]  Some two days later the Accused returned to the home of the complainant repeated his sexual antics with the complainant after sending her younger sister away to the local shop to buy some ice.  The complainant did not report this second incident to her mother because her mother had not done anything after the first report.

 

[12]  On the third occasion during 2006 before the schools opened for the first term, the Accused arrived at her home.  He found her alone in the kitchen, got hold of her, threw her down and removed his trousers.  When he got on top of her he was disturbed by a neighbour and got off her before he could carry out his intentions.

 

[13]  When schools reopened a female teacher, Miss Mabaso (PW4) noticed that the complainant was unable to walk properly as she spread her legs when she walked.  Miss Mabaso asked her what the matter was and the complainant informed her that she had some pain in her womb and sexual organs.  She invited her to her home examined her private parts and noticed that there was a foul smell that came from the complainant’s vagina.  After she had washed the complainant, the latter confided her story about the Accused having sex with her.  Ultimately the matter was reported to the police.  She was taken for medical examination.

 

[14]  The medical report was handed into court as an exhibit.  It recorded that an examination of the complainant who was ten years old was carried out on the 21st February 2006 at Good Shephered hospital.  It recorded that her labia majora was normal.  Her labia minora and restibula were reddened.  Her hymen was intact.  None of the doctors fingers could get into her vagina because she was not yet sexually active.  The examination  was consequently painful.  The opinion of the doctor is that:

 

“The findings  are suggestive of sexual abuse but are not conclusive.”

 

[15]  When the Accused gave evidence, he testified that he wished to state that he did request to have sex with the complainant but he ended up not having sex with her.  That was all he said.

 

[16]  When he was cross-examined he admitted that he would sometimes give the complainant money and buy her ice cubes.  He admitted that he had made a mistake by visiting the complainant and proposing love to her because he then got tempted to ask her for sex.  He denied that he penetrated the complainant.  He admitted that he only touched her and rubbed his penis into her thighs.  He also agreed that when he fondled her, his penis became erect.  It was put to him that he had raped the complainant.  His response was that even though he would make an attempt to penetrate her vagina his penis would not penetrate and no spermatozoa would come out.

 

[17]  In his reasons for judgment the learned Magistrate stated that the court noted that the doctor’s report shows reddishness of the vagina of the complainant.  He then concluded that that was a sign that penetration did take place. 

 

[18]  The doctor’s report does not in my view suggest any penetration.  The doctor’s report states that his findings of sexual abuse are not conclusive.  His findings therefore do not support penetration.

 

[19]  The complainant at the time of the alleged rape was very young and could not have possibly known what penetrative sex entailed.  The Accused on the other hand admits to having rubbed his elongated penis on her thighs.

 

[20]  All these facts taken together amount to indecent assault and the Accused should have been found guilty on the alternative charge of contravening section 3 (1) of the Girls and Women’s Protection Act no. 39/1920.

 

[21]  In the circumstances the conviction of rape is hereby set aside.  The Accused is found guilty of contravening section 3 (1) of the Girls and Women’s Protection Act no. 39/1920 and is sentenced to five (5) years imprisonment

 

without an option of a fine.  The sentence is backdated to the 26th March 2006 when the Accused was arrested.

 

 

Q.M. MABUZA

JUDGE OF THE HIGH COURT OF SWAZILAND

 

 

IN THE HIGH COURT OF SWAZILAND

 

 

HELD AT MBABANE                        CRIM. CASE NO. 246/10

 

In the matter between:

 

 

REX

 

v

 

MPUNDANA CHAM’BHULUKELE MKHABELA

 

CORAM                                   :         Q.M. MABUZA –J

FOR THE CROWN                             :         MISS L. HLOPHE OF THE

                                                          DIRECTORATE OF PUBLIC

                                                          PROSECUTIONS

FOR THE ACCUSED                :         IN PERSON

                                                         

 

 

JUDGMENT ON SENTENCE 9/6/11

 

 

 

[1]    The Accused was charged and convicted with the crime of rape by the Magistrate’s Court, Manzini.   It was alleged that on or about the month of December 2005 to February 2006 on divers dates unknown to the Prosecutor at or near Gamula area in the Lubombo District the Accused did wrongfully, unlawfully and intentionally have unlawful sexual intercourse with Phumzile Khumalo a female minor of 10years of age who at the time could not in law consent to sexual intercourse.

 

[2]    The charge alleged aggravating factors as follows:

 

1.       Accused betrayed the trust and loyalty bestowed by the victim child complainant upon him.

 

2.       Accused had unlawful sexual intercourse with a female minor on several diverse dates.

 

3.       Accused had sexual intercourse with the female minor without taking any contraceptive measures to avoid the risk of infecting the said child victim with sexual transmitted diseases and H.I.V. and AIDS.

 

[3]    There was an alternative charge namely that the Accused was charged with the offence of contravening section 3 (1) of the Girls and Women’s Protection Act no. 39/1920 in that on or about the month of December 2005 to February 2006 on divers dates unknown to the Public Prosecutor and at or near Gamula area, in the Lubombo District, the said Accused did wrongfully and unlawfully have carnal connection or commit acts of an indecent nature with Phumzile Khumalo, a female minor under the age of sixteen (16) years.

 

[4]    After a full trial the Accused was convicted on the 26th November, 2007.  After conviction and before sentence the learned Magistrate held the view that this was a proper case for committal to the High Court for sentencing in terms of section 292 (1) of the Criminal and Procedure Act 67/1938 (The Act) which reads:

 

“If on the trial by a magistrate’s court any person is convicted of an offence, the court, on obtaining information about his character and antecedents, is of opinion that they are such that a greater punishment should be inflicted for the offence than it has the power to inflict, such court may, for reasons to be recorded in writing on the record of the case, instead of dealing with him in any other manner, commit him in custody to the High Court for sentence.

 

[5]    The learned Magistrate in the court a quo recorded on the record that he is committing the Accused to the High Court for sentencing because having looked at the case in its entirety he found that the offence was a very serious one such that it attracted a more severe sentence than could be passed by him, thus complying with the stated provision.

 

[6]    Section 293 of the Act outlines the procedure to be followed on the Accused’s committal for sentencing in the High Court and provides as follows: 

 

        “(1) …

(2) …

(3) If any person is brought before the High Court …, such court shall enquire into the circumstances of the case and, if, after consideration of the record, it is satisfied of the accused’s guilt, it shall thereafter proceed as if such person had pleaded guilty before it in respect of the offence for which he has been so committed.”

 

[7]    In the case of The State v Harry Ramatswidi Criminal Committal F1/2006 a Botswana High Court case, Masuku J. as he then was discussing a similar provision to ours namely section 296 (3) in the Criminal Procedure and Evidence Act of Botswana at page 2 of his judgment stated:

 

“It would appear to me that the object of this section is to enable this Court to consider the evidence on the record and the judgment of the Court a quo and to make up its own mind as to whether the conviction was in the circumstances proper.  This Court is not bound by the finding, of the trial Court in relation to the question of the accused’s guilt.” 

 

        I align myself with the learned judge’s opinion and in that spirit adopt his approach stated above.  Ultimately it is this Court that has to decide whether or not it is satisfied with the correctness of the conviction by the court a quo primarily because of the responsibility placed upon this court by section 293 (4) of our Act which states:

 

“If the High Court, under this section, passes any sentence upon any person he shall be deemed to have been tried and convicted for the offence concerned before the High Court.  (Amended P.49/1964.)

 

[8]    It is with the above in mind that I now examine the facts of the case before me in order to determine the propriety of the conviction and if I am satisfied that all is in order I shall mete out an appropriate sentence.

 

[9]    A summary of the evidence that led to the conviction of the Accused follows.

 

        The complainant, Phumzile Khumalo was twelve years old when she gave evidence in the court a quo on the 25/11/07.  The complainant was 10 years old when the alleged rape occurred.  She stated that sometime during December 2005 at about 9.00 a.m. she was alone at home because schools were closed.  The Accused who lived in the same area arrived and found her in the kitchen cooking.  He did not say anything to her, he took hold of her and pulled her.  When she cried out he shut her mouth with his hand.  He quickly removed his trousers forced her to lie down facing up and removed her panty.  He inserted his penis in her vagina, lay on top of her and made movements on her body.  When he had finished he stood up put on his trousers and left.  After he had left she also stood up and noticed that a whitish fluid like mucous was coming out of her vagina.  She felt pain when the Accused had sex with her.

 

[10]  Because her mother was not at home that day she was unable to report her ordeal.  She only reported to her mother on the following day but her mother did not do anything after the complainant had made a report to her.

 

[11]  Some two days later the Accused returned to the home of the complainant repeated his sexual antics with the complainant after sending her younger sister away to the local shop to buy some ice.  The complainant did not report this second incident to her mother because her mother had not done anything after the first report.

 

[12]  On the third occasion during 2006 before the schools opened for the first term, the Accused arrived at her home.  He found her alone in the kitchen, got hold of her, threw her down and removed his trousers.  When he got on top of her he was disturbed by a neighbour and got off her before he could carry out his intentions.

 

[13]  When schools reopened a female teacher, Miss Mabaso (PW4) noticed that the complainant was unable to walk properly as she spread her legs when she walked.  Miss Mabaso asked her what the matter was and the complainant informed her that she had some pain in her womb and sexual organs.  She invited her to her home examined her private parts and noticed that there was a foul smell that came from the complainant’s vagina.  After she had washed the complainant, the latter confided her story about the Accused having sex with her.  Ultimately the matter was reported to the police.  She was taken for medical examination.

 

[14]  The medical report was handed into court as an exhibit.  It recorded that an examination of the complainant who was ten years old was carried out on the 21st February 2006 at Good Shephered hospital.  It recorded that her labia majora was normal.  Her labia minora and restibula were reddened.  Her hymen was intact.  None of the doctors fingers could get into her vagina because she was not yet sexually active.  The examination  was consequently painful.  The opinion of the doctor is that:

 

“The findings  are suggestive of sexual abuse but are not conclusive.”

 

[15]  When the Accused gave evidence, he testified that he wished to state that he did request to have sex with the complainant but he ended up not having sex with her.  That was all he said.

 

[16]  When he was cross-examined he admitted that he would sometimes give the complainant money and buy her ice cubes.  He admitted that he had made a mistake by visiting the complainant and proposing love to her because he then got tempted to ask her for sex.  He denied that he penetrated the complainant.  He admitted that he only touched her and rubbed his penis into her thighs.  He also agreed that when he fondled her, his penis became erect.  It was put to him that he had raped the complainant.  His response was that even though he would make an attempt to penetrate her vagina his penis would not penetrate and no spermatozoa would come out.

 

[17]  In his reasons for judgment the learned Magistrate stated that the court noted that the doctor’s report shows reddishness of the vagina of the complainant.  He then concluded that that was a sign that penetration did take place. 

 

[18]  The doctor’s report does not in my view suggest any penetration.  The doctor’s report states that his findings of sexual abuse are not conclusive.  His findings therefore do not support penetration.

 

[19]  The complainant at the time of the alleged rape was very young and could not have possibly known what penetrative sex entailed.  The Accused on the other hand admits to having rubbed his elongated penis on her thighs.

 

[20]  All these facts taken together amount to indecent assault and the Accused should have been found guilty on the alternative charge of contravening section 3 (1) of the Girls and Women’s Protection Act no. 39/1920.

 

[21]  In the circumstances the conviction of rape is hereby set aside.  The Accused is found guilty of contravening section 3 (1) of the Girls and Women’s Protection Act no. 39/1920 and is sentenced to five (5) years imprisonment

 

without an option of a fine.  The sentence is backdated to the 26th March 2006 when the Accused was arrested.

 

 

Q.M. MABUZA

JUDGE OF THE HIGH COURT OF SWAZILAND