Court name
High Court of eSwatini
Case number
127 of 2007

R v Mavuso (127 of 2007) [2011] SZHC 41 (10 April 2011);

Law report citations
Media neutral citation
[2011] SZHC 41
Coram
Mabuza, J

 

IN THE HIGH COURT OF SWAZILAND

 

 

HELD AT MBABANE                        CRIM. CASE NO. 127/2007

 

In the matter between:

 

 

REX

 

v

 

PHUMLANI MAVUSO

 

CORAM                                   :         Q.M. MABUZA –J

FOR THE CROWN                             :         MISS L. HLOPHE OF THE

                                                          DIRECTORATE OF PUBLIC

                                                          PROSECUTIONS

FOR THE ACCUSED                :         MR. B.J. SIMELANE OF BEN J.

                                                          SIMELANE & ASSOCIATES

 

 

 

JUDGMENT  21/4/2011

 

 

 

[1]    The Accused was charged with the crime of rape; it being alleged that upon or about the 16th June, 2006 at or near Makhwekweti area in the Lubombo Region, the said Accused  an adult male did intentionally have unlawful sexual intercourse with one Zincane Velephi Dlamini a female minor of 14 years without her consent and did thereby commit the crime of rape.

 

[2]    The crime; it was alleged; was accompanied by aggravating factors in the following manner:

 

  • The complainant was very young at the time of the rape;

 

  • The Accused intimidated and threatened to stab the victim with a knife;

 

  • The Accused was violent towards the victim;

 

  • The Accused exposed the complainant to sexually transmitted infections such as HIV/AIDS as he did not use a condom at the time of the rape.

 

[3]    The Accused pleaded not guilty to the said offence:  his defence being that the complainant consented to sexual intercourse with him.

 

[4]    The Crown led a total of seven (7) witnesses and the defence led three (3) witnesses.

 

[5]    PW1, Zincane Velephi Dlamini,  the complainant testified that she was born on the 22nd March 1991.  She was in Grade 7 on the 16/6/2006.  The trial herein began on the 3rd June 2010.  The complainant’s age was immediately put in issue as it meant that on the 16 June 2006 when the rape occurred she was older than 14 years.  In an attempt to prove her age as 14 years old at the material time the Crown called the complainant’s mother as well as a bone expert Dr. Dundun. 

 

[6]    PW5, Idah Khathazile Dlamini, the complainant’s natural mother, testified that the complainant was born during March 1991 and she produced the complainant’s birth certificate.  Her evidence was that she did not give birth to the complainant at a hospital where records are kept.  As a result she was unable to give a precise date of birth.  She gave birth at home and after sometime she went to the hospital to have the complainant weighed.  At the hospital she was given a card to enable her to go and register the birth of the complainant.   In order to get the card she estimated to the nurses the date when the complainant was born.  The result is that the complainant’s date of birth is recorded as 22 March 1991 which is an approximate date.  PW5 who is completely illiterate further estimated that a month had not passed when she went to the hospital with the complainant and the nurses relied on the information that she had given them to complete the hospital card with the details of birth of the complainant.

 

[7]    PW7, Dr. Kingsley Dundun an orthopedic surgeon was called to give expert evidence in a bid to assist the Crown with regard to the complainant’s age.  He testified that he treated bones and joint diseases such as fractures, infections in the bones and joints and degenerative diseases such as arthritis.  He testified that on the 8/6/10 he examined the complainant to try and determine her age.  He interviewed her mother PW5 who gave her birth date as 1991. 

 

[8]    Dr. Dundun after examining the complainant concluded that her skeletal development indicated that she was presently aged between 18 – 19 years old minimum.  He conceded under cross-examination that the method used was not precise.  He stated that the margin of error in the determination of age using one’s skeletal development had a margin of error of about a year either less or more; and that she could be about 20 years of age meaning that she could have been sixteen during 2006.

 

[9]    He further stated that the age range for full fusion of the skeletal bones in respect of the complainant indicates that she may have been 16 years at the time of the alleged rape.  Dr. Dundun further stated that it was accepted that gender was a factor in skeletal development; and that it was generally accepted that women matured and fused quicker than men.  I agree with Mr. Simelane that the Crown failed to prove that the complainant was 14 years as on the 16th June 2006.  I conclude that she was at least 16 years at the material time.

 

[10]  Having made the finding that the complainant was16 years old at the time of the alleged rape she no longer falls into the age range wherein she is irrebuttably presumed to be incapable of consenting to sexual intercourse.  At 16 years of age she is capable in law of consenting to sexual intercourse.

 

[11]  The complainant denied that she consented to sexual intercourse with the Accused.  Her evidence is that at that time that she was raped during June 2006 she resided at Makhwekweti in the Lubombo region.  She lived with her parents and attended Makhwekweti Primary School and was in Grade 7.

 

[12]  On the 16th June 2006 she together with other school children had gone to watch a soccer match and netball.  She was with Gabsile Gamedze (PW3) and Phephile Thabile Ndlangamandla (PW4).  After watching the netball match, the three girls went to pass water in the bush.  Thereafter the Accused and some friends of his namely, Mpendulo Ndlangamandla and Mfanzile Mavuso stopped her while the Accused grabbed her by the hand and took her forcefully to his friend one James Dlamini’s home where they spent the night.  When the Accused held her hand, the complainant states that she cried out but the Accused and his friends exclaimed that she was playing.  They walked with her and stopped in the shade of a tree for ten minutes about three hundred metres away from the sports ground.  She informed the court that there were many people at the sports ground comprising of teachers and pupils.  Gabsile (PW3) returned to the  sports ground while Phephile (PW4) stood apart and talked with James Dlamini.

 

[13]  The Complainant testified that when she cried out, both PW3 and PW4 heard her; nobody else did.  After  standing in the shade for ten minutes and at about 3 p.m the complainant, Accused, Mfanzile and Mpendulo left for James Dlamini’s house while the games continued.  They walked an entire ten (10) Kilometres and arrived at about 9.00 p.m.  The complainant testified that she did not go willingly.  They did not meet anyone along the way.  Upon arrival the complainant and the Accused used James’s room.  She asked to go and have a drink of water and tried to raise an alarm but the Accused threatened to injure her with a knife that she saw for the first time outside James’s room.  She could hear people talking and making noise nearby at a kitchen.   Mfanzile and Mpendulo went their separate ways upon arrival at James’s home.

 

[14]  When the complainant and the Accused arrived at James’s home they went into James’s room where the Accused lay on the bed while she remained standing.  The Accused whilst still dressed moved from the bed onto a grass mat on the floor.  She eventually joined him on the mat.  He invited her to undress and she refused.  He again threatened her with the knife and she undressed and so did he and they both slept on the mat.  He had sexual intercourse with her and again after a ten minute interval.  She felt pain.  He did not use a condom.  She did not consent to having sex with the Accused.  After having sex they slept until morning.  She stated that the Accused used to propose love to her on many occasions but she had rejected his proposal.

 

[15]  In the morning James came to tell the Accused that the complainant’s mother PW5 was looking for the complainant.  The Accused thereafter accompanied the complainant to the gate of her home which was some distance away as it took one and a half hours to get there.  It was not yet sunrise when she reached home.  Upon arrival at her home, the complainant’s mother PW5 asked her where she had been.  She told her mother of her ordeal.  They slept thereafter and later that morning both the complainant and PW5 went to the Accused’s home.  The Accused was not at home but PW5 spoke with his mother; thereafter the complainant and PW5 returned home.

 

[16]  Some time later the complainant went to report the matter to the police at Sithobelweni.  The police took her to the clinic at Sithobelweni where she was examined by

Dr. Phiri (PW2) from there she was taken to Hlathikhulu Government Hospital  where she was further attended to.

 

[17]  It was put to her during cross-examination that she had  accepted the Accused’s proposal during a lobola ceremony at a  Mkhaliphi homestead during an Easter weekend  in 2006.  She denied having accepted the Accused’s proposal then even though she admitted that she had attended the lobola ceremony.  It was put to her that subsequent to her having accepted the Accused’s proposal, the Accused and his friend Mphendulo paid her a visit one night.  She confirmed the visit at night but in re-examination stated that she could not remember if they had spoken at all with the Accused.  She recalled that she had been asleep and when she awoke she found them already seated in her room.  They left later that same night.  The hut in which the complainant slept in was separate from the main house.  It was put to her that her father went to the Accused’s home to confirm for himself that the Accused and the complainant were having a love relationship.  She denied that her father had done so.

 

[18]  It was put to her that during the ten minutes she had stood with the Accused in the shade he was trying to persuade her to spend the night with him.  She denied this.  It was further put to her that the reason her friends left her alone with the Accused in the shade was because they knew that she had a love relationship with the Accused.  She denied that she had a love relationship with the Accused.  Asked why she did not scream to Gabsile and Phephile to rescue her when the Accused had forcibly taken her hand and led her away; she responded that she had cried out, but nobody had come to her rescue.

 

[19]  Asked why the people, students and teachers watching the games did not respond to her cry her response was that the Accused told her that she was joking.  Asked why Phephile who was languidly talking to James her boyfriend did not respond to her cry she responded that perhaps she was afraid.  Asked why Gabsile had casually left her in the company of the Accused instead of fetching help if indeed the complainant had screamed she replied that Gabsile may have told some people as she was among the people who were looking for her that night.

 

[20]  She was asked why she did not seek help from homesteads along the route she and the Accused had used to reach James’s home.  Her response was that there were no homesteads on either side of the road; the few that were there were far apart.  When asked why she did not raise a hue and cry along the way as they met students, Mpendulo’s brother and even a teacher from the school.  Her response was that she did not see the teacher.  Asked why she did not raise an alarm to Mpendulo, James and Mfanzile that the Accused was taking her against her will.  Her response was that she was afraid as she did not know what they had all agreed to about her.

 

[21]  It was put to her that she had left the sports ground willingly and that this was evidenced by the fact that she and the Accused had casually strolled behind James, Mfanzile and Mpendulo who walked on ahead.  She denied this.

 

[22]  The complainant was asked why she did not shout for help to the people she could hear talking in the kitchen at James’ home.  She responded that she did shout but that the Accused produced a knife.  It was put to her that there were children playing in the yard near James’s room whom she could have alerted that she was there against her will; she denied that there were any children.  It is important to note that in her evidence in chief she did not mention that she raised an alarm by shouting when they reached James’s house she only said this during cross-examination.  She stated that after shouting the Accused produced a knife and threatened her with it.  The Accused through cross-examination denied that he produced a knife with which he threatened her.  When asked why she did not run away between 9.00 p.m. and 1.00 a.m,  she replied that she was afraid of the knife and the door was locked.  

 

[23]  She conceded that the Accused woke her up at about 1.00 a.m. and informed her that her mother was looking for her.  It was put to her that when the Accused woke her up her response was that she wished to sleep awhile longer but she denied having said this.  It was put to her that when the Accused and Mpendulo accompanied her home Mpendulo asked her what she would say to her parents she responded that she was old enough to know what she would tell them.  She denied this and said she had responded that she would tell her parents where she had been.

 

[24]  Gabsile Gamedze (PW3) gave evidence that she recalled the events of the 16/6/2006.  She attended the same primary school as the complainant and on this day she too had attended the sports tournament.  When she gave evidence she was 20 years old; she was 16 years on the 16/6/2006 and was in Grade 6.  When the soccer ended she went to urinate in the company of the complainant and Phephile (PW4).  She stated that there were some boys near where they urinated.  While she was walking along she looked back and saw that the complainant was held by the Accused.  The Accused was in the company of Mpendulo Ndlangamandla and James Dlamini.  The complainant did not look like she was happy being with the boys.  When PW3 had finished urinating she returned to the sports ground and when the match ended she went home.  She did not observe anything more because the complainant was standing with the Accused someone they all knew in the area.  PW3 confirmed that there were elderly people at the sports ground but she did not report to anyone that she had left the complainant with the Accused;  PW3 only reported to her mother when she got home that PW1 was not happy.  She was asked by Miss Hlophe why she did not report to anyone when she had left the complainant unhappy.  She replied: “because it was someone whom we know and he is known in the local area”.  Asked if to her knowledge the Accused and the complainant were in love she replied that she did not know.

 

[25]  PW3 when cross-examined revealed that she and PW4 relieved themselves in a pit latrine and that it was correct that there were no toilets as the complainant had stated thus contradicting herself.  PW3 further stated that had the complainant raised an alarm she would have been heard at the sports ground as there were many elderly people who were watching the match as well as students.

 

[26]  Siphephile Ndlangamandla (PW4) also attended the same primary school as the complainant and PW3 during June 2006.  She too was 20 years old when she gave evidence; she was 16 years old on the 16/6/2006 and was in Grade 6.  She too attended the sports tournament on the 16/6/2006.  When the soccer had finished she together with PW1 and PW3 went to urinate in a forest.  When they returned they saw the Accused, Mpendulo Ndlangamandla and Mfanzile Mavuso.  Mfanzile and Mpendulo held the complainant and she shouted hey!  She did not say that it was the Accused who held her.  The witness was then called by James her boyfriend while Gabsile moved away.  PW4 later left to board her transport and left PW1 still being held by the Accused’s two friends.  She too testified that there were many people about eighteen metres away from where PW1 was held up.  She testified that after shouting hey! PW1 kept quiet.  Before PW4 left she looked at PW1 who looked disinterested; PW4 did not report to anyone as she believed that the boys would let PW1 go.  PW4 stated that she did not know whether the complainant and the Accused were in love.

 

[27]  PW4 admitted during cross-examination that she and James were in love during 2006.

 

[28]  PW5, Idah Dlamini the natural mother to the complainant testified that on the morning of the 16/6/2006, the complainant left for school as there was a soccer match; she did not return.  She asked after the complainant from some children that the complainant normally played with namely Zethu.  At Zethu’s home she received a report.  There after she went to a homestead which was owned by a man who was a member of the community police.  She did not find him but enlisted his wife’s help:  Thembi Mavuso.  Being women she feared going directly to the Mavuso homestead which was the parental home of the Accused and where the Accused lived.  They both went to the home of the Chief’s runner, Philemon Dlamini to ask for his help.  He accompanied them to the Accused’s home but the Accused was not there.  Some boys who were at the Accused’s home advised her that the Accused had gone to Sithobelweni to watch soccer.  From the Accused home they proceeded to a Ndlangamandla homestead where they received further information.  This Ndlangamandla home is the home of PW4 and DW3.  They returned home where they waited but Thembi suggested that they return to the Accused’s home in order to look for the complainant.  They did so but the complainant was not there nor was the Accused.  They went to the Accused’s brother’s home but the Accused was not there.  They went to the home of the uncle to the Accused; the latter was not there.  They returned to the Accused’s home; he was still not there.  They found his father who did not know where he was.  Because it was at night PW5 returned home and along the way met some boys including James Dlamini.  She informed him that she was looking for PW1 and threatened to go to the police.  Her threat seemed to work because PW1 returned home at about 1.00 a.m.

 

[29]  When the complainant entered into the house PW5 posed some questions to her.  The following is an extract of what took place:

 

“PW1 returned at about 1.00 a.m.   She came into the house.  I asked her where she was from and who was accompanying her. 

 

  • She told me that she was accompanied by the Accused.

 

  • I asked her why he was accompanying her and I told her that I was from Accused’s house but had not found him at his home. 

 

  • She said she was from James Dlamini’s home.

 

  • I asked her why she went to James’s homestead.

 

  • She replied that when she had finished watching soccer and after relieving herself the Accused held her and told her that they should go. 

 

  • I asked her if they were lovers and she said no, she was not his girlfriend.

 

  • I asked her if it was alright for us to wake up in the morning and go and ask him and she said it was fine they could go.  PW1 told me why they had gone to James’s house. 

 

  • She told me that when they arrived there, Accused asked James for a house and James gave them. 

 

  • I asked if they had sex together and she agreed and said that they had sex two times.”

  

[30]  PW5 further testified that on the following morning she together with the complainant went to the home of the Accused in order to discuss the issue of whether the Accused and the complainant were in love but the Accused was not at home.  PW5 spoke to his parents who requested her not to report the matter to the police until it had been discussed by both families but his parents did not follow through.  She then decided to report the matter to the police.   She went with the complainant to make a report.  She informed her husband but he did not say much as she had already reported the matter to the police.  Instead they talked about the incident of the Accused entering the complainant’s hut at night.

 

[31]  When PW5 was cross-examined she disclosed that her husband paid a visit to the Accused’s parents in order to get both the Accused, the complainant and their parents to discuss the issue whether they were in love or not as the complainant had denied everything.  PW5’s husband also wished to discuss the issue of the Accused visiting the complainant at night.  PW5 seemed upset that the discussions never took place.  When asked whether the complainant had informed her that the Accused had proposed to her; PW5 agreed.  She stated that the complainant upon returning from her night at James’s home had informed her that the Accused had proposed love to her while she was at a Mkhaliphi’s home attending a lobola ceremony; but that she had refused his proposal.  She further agreed that the complainant mainly responded to questions put to her by PW5.

 

[32]  PW5 admitted that she was angry when the complainant arrived at 1.00 a.m; and that is why she plied her with many questions.  She stated that even though she was angry at the complainant she was not so angry as to shout at her.  She spoke to PW1 nicely and did not threaten to assault her.  She stated that she began to believe the complainant’s version of the story because when they had gone to the Accused’s home he had run away when he heard that the complainant’s parents had come to talk with him and his parents about the matter.

 

[33]  Further cross-examination of PW5 revealed that the complainant had told her mother that when she left the sports ground for James’s home she was forced to walk by being pushed from behind.  She did not tell her mother that she walked freely.  She did not tell her mother that she had spent ten minutes in the shade of a tree talking alone with the Accused.  When her mother asked why she did not raise an alarm after PW1 had gone to relieve herself, PW1 informed her that the people at the sports ground would not have heard her as they were far.  When Mr. Simelane informed PW5 that evidence had been led which showed that the sports ground was only 18 metres away she disagreed with Mr. Simelane.

 

[34]  When PW5 was asked if the complainant had informed her that there were people talking in the kitchen when PW1 arrived at James’s house; PW1 could have raised an alarm, PW5 responded that the complainant had told her that she had tried to go these people but that the Accused had dragged her away and threatened to assault her; he threatened her with a knife which he was carrying.

 

[35]  The Accused was arrested on the 17 June 2006 and charged with the crime of rape it being alleged that he raped PW1.  He was arrested by 4123 Detective Constable M. Mathunjwa  (PW6).  It was PW6 who took the complainant to the Health Centre at Sithobelweni where she was examined by Dr. Phiri (PW2).  When PW6 testified he merely gave the general aspects of the matter namely that the complainant informed him that she had been forcefully removed by the Accused from the sports ground and taken to James Dlamini’s home where the Accused raped her twice.  She revealed to PW6 that the Accused had a knife.

 

[36]  He revealed during cross-examination that the complainant had informed him that she was taken at knife point from the sports ground and that the Accused threatened to stab her along the way with it.  It did not occur to PW6 to ask for the knife in order to produce it as an exhibit.

 

[37]  PW2, Dr. Phiri testified that on the 17th June 2006 he examined the complainant and completed Form RSP 88, the police medical report (Exhibit A).  He presented his findings which were that the complainant was menstruating; having started the previous day.  She had bruises on both thighs and on the labia majora and minora.  Her hymen was destroyed.  She had not been previously sexually active; he was able to determine this by examining her.  He could only insert one finger in her vagina and the examination was painful for her.  He informed the court that had she been sexually active he would have been able to insert more than one finger; the norm being two fingers.  He found remnants of her destroyed hymen and this would not have been the case had she been previously sexually active.  He informed the court that the use of the fingers is referred to as digital examination and this method determined the level of penetrative sex.  If two fingers can be inserted and there is no pain then the person is deemed to be sexually active.  In this case the complainant was clinically depressed but PW2 conceded that this may have been caused by other factors such as her parents anger towards her other than sexual activity.  The Crown closed its case.

 

[38]  DW1, Phumlani Mavuso next took the witness stand.  He testified that he resided at Sithobelweni and that the complainant and he had a love relationship during 2006 and that as on the 16 June 2006, she was his girlfriend.  He had proposed love to her on two occasions.  The first occasion they both were from church.  The second time was on Good Friday and at a Mkhaliphi homestead where a lobola ceremony was taking place.  Because she was busy with some chores they agreed to meet and talk later.  Later on he walked the complainant home and he repeated his proposal and she accepted.  He saw her again on another day he had gone to her home with Mpendulo and he sent Mpendulo to go in and call her; but she never came.  Seeing that it was getting late and she was not coming, the Accused and Mpendulo went to the hut that the complainant slept in.  The Accused went into the room while Mpendulo kept guard outside the door.

 

[39]  The complainant asked who had come in and he replied that it was he.  She did not raise an alarm.  He spoke with her and asked why she had not come when he sent Mpendulo to call her; she replied that it was because she was busy.  The Accused told her that he wished to meet with her.  She agreed and told him she could meet him on a Saturday at 12.00 p.m. as she would have finished her chores by then.  He left with Mpendulo.

 

[40]  On the Saturday he waited for her at the appointed place but she did not show up.  He went to her home and finding nobody there he returned to his home.  He next saw her at the school games at Sithobelweni on the 16/6/2006. The Accused was with Mpendulo, Mfanzile Mavuso and James Dlamini.  When the last game was about to end the Accused asked Mpendulo to send his sister to go and tell the complainant that he wished to see her.  When she arrived he held her by the hand and walked with her to the shade of a tree where they talked for about 10 minutes.  Also in the shade of the tree were Mfanzile, Mpendulo and James who were standing next to the school fence not far away.

 

[41]  The Accused asked the complainant to visit him at his home but she responded that she could not do so as her brother a soldier and of whom she was afraid was at home.  He persuaded her to visit him and she agreed.  They walked to James’s home together with Mfanzile and Mpendulo.  They first took a road thereafter a footpath because the complainant was afraid that they might meet her brother on the road.  They took a footpath which bypasses some homesteads.  The homesteads were about 6 metres and some 13 metres from the footpath.  The complainant walked ahead of accused who brought up the rear.  At one time they met a one time teacher of hers, Mthandeni Ndlangamandla and the complainant doubled back to the Accused in order to avoid meeting the teacher.

 

[42]  When they reached James’ home they stood  outside the fence and James came out to talk to them.  PW1 informed them that she was thirsty and asked for a drink of water.  The Accused sent Mphendulo to fetch water for her.  By the time Mphendulo returned with the water both the Accused and PW1 were standing outside a hut belonging to James.  The Accused accepted the water from Mphendulo drank some of it and then offered it to PW1 who drank it.

 

 [43]The Accused denied that PW1 raised any alarm at the sports ground and along the way to James’s home or upon arrival at James’s home. He denied that he carried a knife which he used to scare the complainant.  After Mphendulo had brought the water, the Accused sent him to ask James for the keys to his hut.  Mphendulo complied and when he returned the Accused opened the door and invited PW1 in; when they were inside he closed the door.  He sat on the bed and she sat on the floor on a grass mat.  Shortly thereafter James knocked and the Accused opened for him.  James requested the Accused not to open the door for any member of his family as they had a tendency of taking his things without his consent and did not return them.  Thereafter James and Mphendulo left.

 

[44]  The Accused dozed off on the bed.  He got up after a short while and found PW1 sleeping on the mat.   He asked her why she was sleeping on the mat she responded that she was unable to sleep on the bed.  He asked if she wished him sleep on the mat and she agreed.  He found a bigger mat and made a bed for them by using the blankets from the bed.  They both got under the blankets and he asked her to undress and she did so.  He asked her to have sex with him and she agreed.  He denied threatening her with a knife in order to have sex with her; he denied ever carrying any knife.  He denied having sex with her twice; he stated that he had sex with her once.

 

[45]  After having sex they both fell asleep.  Sometime later James and Mfanzile knocked and the Accused opened the door.  They informed the Accused that PW1’s mother was looking for her.  They asked the Accused to accompany her home because her mother was upset.  He  went back into the room woke her up and told her that her mother was looking for her.  She asked the Accused what the time was; he in turn asked James who replied that it was about 1.00 a.m.  When he informed her, she responded that she could not leave at that time she would instead leave at dawn and she went back to sleep.  The Accused tried to wake her up but she refused to get up. 

 

[46]  He went to James and Mfanzile to request them to try and talk some sense into her.  She did not immediately respond but after they left she woke up dressed and she and the Accused left.  They were accompanied by Mfanzile while James remained behind.  Along the way Mfanzile asked her what she would tell her mother when she arrived home.  She responded that she was old enough to know what she would say to her mother.  The Accused explained to her that Mfanzile had merely asked the question because he was concerned for her as she would most likely get a flogging when she got home whether she admitted having been with him or not.  This time she did not respond.  Along the way Mfanzile turned towards his home and the Accused accompanied the complainant to her home. Upon arrival he waited for her to enter her mother’s house and he went back to his home.  After that he was arrested and charged with the crime of rape.  He testified that he did not know how old she was when he had sex with her or when he was proposing love to her.  He did not know that it was a crime to have sex with a girl who was under sixteen years of age. 

 

[47]  The Accused was thoroughly and meticulously cross-examined by Miss Hlophe but he was not shaken.  He answered calmly and forthrightly.  It was put to the Accused that PW1 had denied that they were lovers.  He responded that  PW1’s denial that they were lovers was because she feared her brother who was a soldier.  The Accused when asked why PW1 had told the Court that she did not talk to him at Mkhaliphi’s homestead the Accused responded that it was because PW1, was afraid that her mother would beat her up for having talked to him.  He revealed that he had informed the police that he and PW1 were lovers; even though this fact was not put to the police officer, PW6.  He denied that PW1 cried when he took hold of her hand at the school games.  Instead she kept quiet and showed appreciation.  He was not able to give an explanation as to why PW1 had denied meeting a teacher from her school along the way to James’ home.  He re-iterated that they had consexual sex with the complainant.  He was asked for a reason why the complainant had testified that it was not true that she had consented to have sex with him.  He replied that the reason was because she was afraid of her parents as she had told them they were not in love.

 

[48]  The Accused was asked why the complainant had gone to the police to report that the Accused had raped her if she had consented to have sex with him.   His response was that she was forced by her parents to make the report.  Asked why he had left his home on the morning of the 17/6/2006 when the complainant and her mother went to his home.  He replied that he had woken up early and had gone to his grandmother’s home where a relative had died.

 

[49]  The Accused was asked what had caused the bruises on the complainants thighs; and he responded that they were caused by the long walk from the sports ground to James’ home.  Asked about the bruises on her vagina; his response was that they were caused by their making love as despite foreplay she was still dry when he entered her.

 

[50]  The Accused’s father Bhekindoda Mavuso (DW2) next gave evidence.  He testified that the complainant’s father had approached him wishing to know if the Accused and PW1 were lovers.  He responded that he did not know.  He was asked by PW1’s father to tell the Accused to stop coming to his home at night as his children would mistake him for a criminal and would harm him.

 

[51]  DW3 Mpendulo Ndlangamandla next gave evidence.  His evidence is similar to that of the Accused.  He testified that he knew both the Accused and the complainant.  On the 16/6/2006 he attended some games at Sithobelweni.  He was with the Accused, James and Mfanzile.  The Accused asked Siphephile (PW4) to go and call PW1.  Shortly thereafter they saw PW1, Siphephile and Gabsile walking towards a ditch and followed them but met them on their return.  The Accused asked to talk to PW1 and she obliged.  James and Siphephile also moved away and stood together; while the Accused and PW1 stood nearby.

 

[52]  The Accused asked PW1 to walk with him to the shade of a tree as it was hot.  The Accused then held her by the arm and led to the shade.  He held her tenderly in a way that showed that they were in love; there was no violence and she did not cry out.  Furthermore there were many people milling around who would have heard her cry out.  Mfanzile and Mpendulo joined them in the shade.  According to this witness the Accused asked PW1 why it was so difficult to see her and she responded that she had to while away the time at home as her parents were always asking her if there was a relationship between them.  The witness stated that it was while the two were still talking that they all did not notice that the truck that they had arrived in was leaving without them.  The Accused suggested that they go to the station in order to board a bus but PW1 refused saying that she was expecting her brother who was a soldier and he would be in the bus; she did not wish him to see her.  The Accused suggested a route that they could use and she agreed.  This is the route they used to walk to James’s home.

 

[53]  The witness testified that PW1 and the Accused walked comfortably together all the way to James’s house.  He too confirmed that along the way were homesteads.  They met the witness’s brother, the teacher Mthandeni Ndlangamandla along the way.  Upon reaching James home, James who had walked ahead came out to meet them and inquired as to how they had traveled.  PW1 asked for water.  The Accused sent the witness to fetch some water.  When he returned with it the Accused took it drank some and gave it to PW1 who drank it.  Some children were in the yard playing and PW1 asked who they were, the Accused responded that they attended the same school as her.  The Accused sent the witness to fetch the keys to James’s hut; which he did.  He returned with the keys and gave them to the Accused.  He testified that there were other people in the homestead namely James’s mother and his sister in law who were in the kitchen.  The kitchen was about eight (8) metres away.  The witness denied that the complainant tried to raise and alarm and the Accused stopped her.  He further denied that the Accused had a knife in his possession.  After he had given the Accused the keys the Accused opened the door and he and PW1 went inside.  This witness left them and went to join James.

 

[54]  The witness confirmed that on some previous occasion he had accompanied the Accused to PW1’s home.  The Accused informed the witness that PW1 and him were in love.  It was late afternoon and when they arrived at PW1’s home, the Accused sent him to go and call PW1.  Getting into the homestead was easy for the witness as this was the home of his grandmother.  When he got into the premises PW5 and PW1’s elder sister were just leaving in order to fetch some water.  He found PW1 and told her that the Accused wished to see her.  She told the witness to tell the Accused that she was coming and the witness returned to where the Accused was waiting.  While DW3 and the Accused waited; PW5 returned.  When PW1 tried to go to the Accused PW5 called her back when she was at the gate.  She tried again the second time but PW5 turned her back again. 

 

[55]  The witness and the Accused waited until it was dark; she did not come.  Soon thereafter the household began to prepare for bed.  When everybody were in their various houses, the witness and the Accused entered PW1’s hut.  The Accused knocked and she asked who was there and the Accused responded that it was him, he pushed the door open and entered.  The witness remained at the door.  The Accused greeted PW1 and asked her why she had not come to him when he had sent the witness to call her.  She replied that she was held up.  The Accused said that it was now late and yet he wanted to talk to her.  He asked her when they could meet and she replied that they could meet at 12.00 p.m. on Saturday.  The Accused bade her farewell and he and the witness left.

 

[56]  When DW3 was cross-examined he maintained his story that when PW1 realised that the truck that she had arrived in to attend the sports on the 16/6/2006 had left she asked the Accused how she would get home.  He responded that they could take a bus,  but PW1 refused because she feared that they would meet her brother on the bus.  DW3 denied that he and the Accused had blocked PW1 and prevented her from leaving.  When he was asked if he knew of a love relationship between PW1  and the Accused, he stated that the Accused had informed him that they were in love and he believed what the Accused had told him.  On the whole DW3 maintained his evidence and was not shaken in cross-examination.  Thereafter the defence closed its case.

 

 

[57]  I now turn to the question whether or not the Crown has proved its case against the Accused beyond a reasonable doubt as is required by law.  In order to prove its case beyond a reasonable doubt, the crown must prove all the elements of the charge of rape that has been preferred against the Accused in the circumstances.  The elements thereof consists in the intentional, unlawful sexual intercourse with a woman without her consent.

 

[58]  The identity of the Accused is common cause.  He was well known to the complainant before the sexual incident.

 

[59]  It has already been disproved and consequently established that the complainant was not 14 years old at the time the alleged rape was committed.  Having established that she was not 14 years old but at least 16 years of age, the legal principle that states that as a 14 year old minor,  she cannot in law consent to sexual intercourse falls away and does not apply in her case.  She can consent to sexual intercourse.

 

[60]  It is common cause and has been  proved that the Accused had sex with the complainant.  Did she consent to sexual intercourse with the Accused?  He says that she consented to have sex with him because they were in love.  She denies that she consented to having sex with him and denies that they were in love.

 

[61]  The Accused testified that he proposed love to the complainant on two occasions.  The first occasion they were both from church.  On the second occasion he proposed love to her while they were both at a Mkhaliphi family where they attended a lobola party.  This party took place during the Easter weekend during 2006.  The Accused testified that because she was busy with some chores they agreed to meet and talk later.  Later on he walked her home and repeated his proposal of love and she accepted him.  As a follow up to this acceptance he paid her a visit at her parental home.  He was accompanied by Mpendulo, whom he sent to call her but she did not come.  As it was getting late, he went into the hut where she slept and they talked while Mpendulo kept guard outside.  When he asked her why she had not come to him when Mpendulo went to call her she responded that it was because she was busy.  They agreed to meet on a Saturday but she did not turn up.  He next saw her at the school games on the 16/6/2006.  She in turn denied that they talked at the lobola party or that she accepted his love proposal.

 

[62]  She did not deny that he came to visit her at her home after the Easter weekend.  She did not deny that Mpendulo came to call her nor did she deny that the Accused came into her room where they both talked.

 

[63]  She did not raise an alarm that the Accused and Mpendulo were at her home.  She did not raise an alarm when the Accused walked into her room and stayed to talk with her until he and Mpendulo took their leave.

 

[64]  The next time they met was at her school where sports were taking place.  When the last game was about to end the Accused asked Mpendulo to send his sister PW4 to go and call the complainant.  When she arrived the Accused held her by her hand and walked her to the shade of a tree where they talked for about 10 minutes.  Also in the shade were Mfanzile, Mpendulo and James.  James was with his girlfriend PW4.  The complainant testified that when the Accused grabbed her by her hand and took her forcefully to James’ home she cried out and the only people who heard her where her school colleagues PW3 and PW4.

 

[65]  When PW3 gave evidence she stated that when she finished urinating she returned to the sports ground.  She left the complainant standing with Accused who held her hand.  She did not observe anything untoward because the complainant was standing with the Accused, someone whom they all knew in the area.  PW3 did not mention in her evidence in chief that the complainant had raised any alarm.  She just stated that the complainant did not look happy being with the boys.  When PW3 was cross-examined she stated that had the complainant raised an alarm she would have been heard at the sports ground as there were many elderly people who were watching the match as well as the students.  When she was asked if she knew of any love relationship between the complainant and the Accused she replied that she did not.

 

[66]  When PW4 gave her evidence, she stated that when she, PW3 and the complainant returned from urinating, she saw the Accused, Mpendulo and Mfanzile.  Mfanzile and Mpendulo held the complainant and she shouted hey!  PW4 was then called by her boyfriend James while PW3 moved away.  When she left to board her transport she left the complainant still being held by the Accused’s two friends but the complainant looked disinterested.  She also denied any knowledge of a love relationship between the Accused and the complainant.  She too confirmed that there were many people milling around who were about 18 metres away from where the complainant was held up.  The complainant testified that the sports ground was about 300 metres from where she was held up and that there were many people at the sports ground comprising of teachers and pupils.  PW3, PW4 and the complainant all attended the same primary school during June 2006.  They were all 16 years at the time.  PW4 was in love with James.  PW3 and PW4 denied any knowledge of the love relationship between the complainant and the Accused.  It is only DW2, who is PW4’s brother who admitted the relationship having been informed by the Accused and who happened to be the Accused’s emissary  whenever the Accused needed to get in touch with the complainant.

 

[67]  I am of the view that had the complainant made a forceful continuous scream someone would have come to her assistance.  She made a feeble hey! and that was all.  I am further of the view that PW3 and PW4 knew about a relationship between the Accused and the complainant but were denying any knowledge as an attempt to protect her from her parents wrath.  Otherwise they would not have left her alone with the Accused, Mpendulo and Mfanzile.

 

[68]  Further evidence by the complainant is that she went with the Accused to James’s home unwillingly.  They left the sports ground at 3.00 p.m.  and arrived at James’s home at 9.00 p.m.  When she was asked why she did not raise an alarm along the way to James’s home as there were homesteads along the way.  She said that it was because the homes were far apart.  The Accused supported by DW2 stated that there were homes on either side of the road and that she could have raised an alarm had she wished to do so.  They further stated that the homes were not far apart and that family members were idling either at the fences or in their yards.

 

[69]  When they arrived at James’s home it was put to her that she could have raised an alarm as there were adults talking in the kitchen and some children who were still playing in the yard.  She stated that she shouted but that the Accused produced a knife and threatened her with it.  It is difficult to believe that she shouted because someone would have come to her assistance, especially as the Accused only produced a knife after she had shouted.

 

[70]  I do not believe that she shouted for help nor that the Accused produced a knife.  All the way from the sports ground the Accused had no knife and she could have easily got away from him.  He all of a sudden acquired a knife at James home and this crucial piece of evidence she only stated during cross-examination and not during her evidence in chief.  There was no knife produced as an exhibit.  The investigating officer PW6 stated in evidence that she revealed to him that the Accused had a knife and that she had been taken forcefully at knife point from the sports ground.  This evidence of the knife by PW6 is in contradiction to the evidence of the complainant who stated that the knife was only produced at James’s home.  Furthermore the evidence of PW6 did not reveal whether or not he searched for the knife and what the results of that search were.  He failed to inform the court why the knife was not produced as an exhibit in court.  The failure to produce the knife and the lack of explanation as to whether he looked for it or not is very fatal to the Crown’s case.  The complainant herself has not informed the court as to where the knife was during sexual intercourse and afterwards.  I therefore reject the story of the knife as being untrue.

 

[71]  She slept in the same room with the Accused from 9.00 p.m. to 1.00 a.m. when the Accused woke her up.  She stated that she was afraid of the knife that is why she did not run away or raise an alarm.  She conceded that the Accused woke her up at 1.00 a.m. and informed her that her mother was looking for her and that the Accused and Mpendulo accompanied her to her home.

 

 

[72]  Miss Hlophe submitted that PW2, Dr. Phiri testified that medically non-consexual activity had taken place.  He testified that the complainant had bruises on both thighs and on her labia majora and minora.  Her hymen was destroyed.  She had not been previously sexually active as he could only insert one finger in her vagina and there were still remnants of her hymen.  He was unable to see any sperm cells on the vaginal swab because she was menstruating when he examined her.

 

[73]  In my view the vaginal bruises and loss of hymen are explained away by the fact that she was still a virgin when the Accused had sex with her.  There is no evidence of what happened after the sexual intercourse.  The only evidence is that they both slept on the grass mat on a bed that the Accused had made for both of them with the blankets that he had removed from the bed.  She seems to have fallen asleep naturally after the sexual act.

 

[74]  The bruises on her thighs puzzled me because the doctor did not explain how they might have occurred.  I asked the Accused how she may have obtained these bruises and he stated that they may have occurred when he and the complainant walked the long distance from the school sports ground to James’s home, her thighs would have chafed together during the walk.  He denied that they were inflicted by him.  This is a reasonable explanation to me. 

 

[75]  There is not much evidence of the circumstances surrounding the sexual act and its aftermath.  There is a certain embarrassment and prudishness in discussing sexual issues in a public fora especially those associated with rape resulting in losing crucial and meaningful evidence.

 

[76]  It is a requirement of our law that the complaint of rape should be made at the first reasonable opportunity that avails itself to the complainant and must be made voluntarily.  In R v C 1955 (4) SA 40 (N) Caney J said: “To qualify for admission, the ‘complaint’… must have been made … at the earliest opportunity which, under all the circumstances, could reasonably be expected, to the first person to whom the complainant could reasonably be expected to make it.”

 

[77]  In casu PW5, the mother to the complainant had already been looking for the complainant on the night of the 16/6/2006 but did not find her.  I have already outlined above all that PW5 did accompanied by Thembi Mavuso in trying to find the complainant.  They went to the Accused home who had outwitted them by taking the complainant to James’s home.  When the complainant returned, it was natural for her to go to her mother whom she had already heard had been looking for her from James and Mpendulo.

 

[78]  When she arrived at her mother’s house she did not voluntarily offer information as to where she had been.  Instead it was her mother who asked her questions as to where she had been and who she had been with, all of which were a natural reaction to a distraught mother.  It was during this interrogation that the complainant informed her mother that she had been forcefully taken by the Accused to James’s home where he had raped her.  When PW5 related their conversation with the complainant during her evidence in chief did not testify about the knife.  She only did so during cross-examination.

 

[79]  The complainant did not make a report to her mother voluntarily.  It was the mother who drew her out by asking her leading questions to which she responded.  Questions of a leading or suggestive nature have the effect of rendering the responses inadmissible and I therefore reject the evidence of PW5 insofar as the report of rape made to her is concerned.  See Rex v Osborne 1963 (1) SA 484 (A).  PW5 did not inform the Court about the complainant’s disposition and demeanor when she arrived.  There is no evidence showing that the complainant was distraught, disheveled and generally upset.  The only evidence to that effect was by PW2, Dr. Phiri who said that she was clinically depressed.  But even he conceded that her depression may have been caused by other factors such as her parents’ anger towards her other than the sexual activity.

 

[80]  PW5 testified that on the 17/6/2006, following the discussion with the complainant, both she and the complainant went to the Accused’s home to discuss the issue of whether or not the Accused and the complainant were in love; but the Accused was not at home.  His parents suggested that PW5 should not report the matter to the police they would instead visit PW5 to discuss the matter further.  The Accused’s parents did not fulfill their promise and so PW5 went to the police to report the matter; she went with the complainant.

 

[81]  It is clear to me that even PW5 suspected that there was a love relationship between the Accused and the complainant, that is why there was no real will to have the Accused reported to the police immediately.  Instead PW5 first went to discuss the matter with the Accused’s

 

parents.  To fortify this perception, the complainant’s father paid the Accused’s father DW2 a visit during which he disclosed to DW2 that he had come to ask the Accused if he and the complainant were in love.  He asked DW2 to convey to the Accused to desist from coming to the complainant’s home at night as he would be mistaken for a criminal and would be harmed.

 

[82]  It was natural for the complainant to deny her relationship with the Accused to her parents for fear of how they would react as she was still young and at school.

 

[83]  It is my considered view that the complainant had plenty of chances within which to have raised an alarm or even to have bolted away, but she did not.  Her failure to do so compels me to conclude that she went with the Accused willingly.

 

[84]  I find therefore that the complainant was not forcefully led to James’s house she went there willingly with the Accused.  She was not raped but consented to have sex with the Accused.  It is my further finding that the Crown

 

 

 

 

has failed to prove its case beyond a reasonable doubt and I accordingly find the Accused not guilty of the crime of rape.  He is acquitted and discharged.

 

 

 

Q.M. MABUZA

JUDGE OF THE HIGH COURT OF SWAZILAND