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Maseko Dunguzela Sibusiso vs Rex (Case No) [2001] SZCA 28 (1 November 2001)

IN THE COURT OF APPEAL OF SWAZILAND

APPEAL CASE NO.

In the matter between:

DUNGUZELA SIBUSISO MASEKO APPELLANT

VS

REX RESPONDENT

CORAM : BROWDE JA

: TEBBUTT JA

: BECK JA

JUDGMENT

Browde JA:

The appellant was charged in the High Court with the crime of rape, it being alleged that on the 12^th December 1998 at or near Ngonini, Manzini region he had unlawful sexual intercourse against her will with Beauty Busi Mabuza. The appellant was found guilty and was sentenced to imprisonment for a period of ten years backdated to the 12^th December 1998. This appeal is against both the conviction and the sentence.

The evidence of the complainant was that on the night in question she was asleep in her home when she was awakened by the presence of someone in her room. She recognised that person to be the appellant who was a neighbour and well known to her. They had in fact grown up together. The appellant had lit a candle which enabled the complainant to see what appellant did next which was to throw a radio at her and assault her while she attempted to shield herself with a blanket. Although she shouted, he grabbed her and according to the complainant, “he strangled me and he grabbed my hand and bit my finger, he also pressed his fingers into my eyes trying to gorge (sic) them”. Although she continued to try to raise an alarm, he tore off her panties and proceeded to rape her. She sustained scratches on her neck and a cut on her finger. The rape of the complainant went on for about an hour after which the appellant apologised and left the house. That was at about 4am. As soon as the appellant left, the complainant went to her grandmother who lived nearby to complain and told her “Dunguzela has raped me”. The grandmother advised her to see another neighbour by the name of Shongwe to whom she accompanied the complainant.

The grandmother Siphiwe Dvuba gave uncontested evidence of the report by the complainant including that she had been strangled and that her eye had been “gorged” and her finger bitten. The witness also corroborated the fact that the complaint was made at about 4am and that thereafter they went to Mr. Shongwe who took them to the local police station. It is of interest that no questions at all were put to the grandmother by the appellant. I should perhaps interpolate that before the trial started the appellant was warned by the presiding Judge that the matter was a serious one and that it was for that reason that it was originally transferred from the Magistrate’s Court to the High Court. Despite this information the appellant told the court that he wished to conduct his own defence. It appears that after the complainant had completed her evidence, the appellant realised that it would be in his interest to have counsel and for that purpose he asked the court to appoint an attorney for him.

The learned Judge described it as unfortunate that there is no provision for an accused person to obtain pro deo counsel in cases of rape. That is reserved for treason and murder only. The learned Judge afforded the appellant an opportunity to attempt to obtain counsel and for that purpose the case was postponed. Unfortunately this proved to be impossible and ultimately the appellant was constrained to continue with the trial in person.

It is indeed unfortunate that pro deo counsel are not appointed by the Crown in rape cases. The serious consequences to the accused of an adverse verdict certainly warrant the appointment of counsel so as to ensure thorough consideration of all matters relevant to the charge.

In the event the appellant’s cross-examination of the complainant bore no fruit whatsoever nor did the appellant at any stage deny that he had been in the house of the complainant on the night in question. The only purpose of his cross-examination was apparently to show that certain items which one might have expected to be exhibits were not brought to court. I refer in this regard to the panties of the complainant which were allegedly torn, the “machine of the door” which had been broken by the appellant in forcing entry and the radio which the complainant alleged the appellant had thrown at her at the commencement of the assault upon her. These are certainly matters for comment but Detective Constable Malinga, who was the officer in charge of the investigation and who arrested the appellant, explained that although he had seen the broken radio on the floor and also the torn panties these were not produced as exhibits as he thought the doctor’s evidence would be sufficient to prove the rape. He also stated that he had observed the injury to the right forefinger of the complainant as well as the scratch near her eye and on her neck. In the event the doctor was not called as he was not available and the appellant then gave evidence.

His version was simply a denial of the Crown evidence. He stated in his evidence, “I don’t know why I was arrested, I didn’t know why I was arrested until I was in custody”. Nothing was said by the appellant in answer to the allegations except this bare denial which of course does not explain why the complainant would have left her home at 4am to make a complaint to her grandmother in which the complainant stated that the appellant had assaulted and raped her. It is also significant that the grandmother said that she was told, when the first complaint was made to her, that the complainant had been strangled and her eye had been “plucked” and her finger bitten. It is extremely unlikely that the complainant would have concocted these details and gone to wake her grandmother in the early hours of the morning in order to tell her a fabricated story against the appellant. The appellant has not suggested any reason why the complainant might have decided to implicate him in a serious attack on her which he had not committed.

In my judgment, the learned Judge a quo was completely justified not only to find that it had been proved beyond reasonable doubt that the complainant had been raped by the appellant but also that it was a case with aggravating circumstances. Rape is itself a heinous crime and when accompanied by a forcible entry into the sanctity of the victim’s home its viciousness is magnified beyond the endurance of any civilised community.

As far as the sentence concerned it is a heavy one but it is in accordance with the terms of Section 185(bis)(1) of the Criminal Law & Procedure Act No.67/1938 as amended which provides that:-

“A person committed of rape shall, if the court finds aggravating circumstances to having been present, be liable to a minimum sentence of nine years without the option of a fine and no sentence or part thereof shall be suspended.”

There was no misdirection by the court a quo nor can the sentence said to be so harsh as to be inappropriate in the light of the statute to which I have referred. Indeed, I would unhesitatingly endorse the approach of the learned Judge a quo. Society demands that the courts protect women from the abhorrent conduct of would-be rapists. The only deterrent which the courts have at their disposal is that of heavy sentences in proper cases. This is such a case.

The appeal is accordingly dismissed and the conviction and sentence are confirmed.

J. BROWDE JA

I AGREE:

P.H. TEBBUTT JA C.E.L. BECK JA

Delivered before an open court on this day of November 2001.