(c)
that the sentence is excessive.
The appellant who argued his appeal in person did not pursue the first two of his original grounds of appeal and correctly so. There
is no substance in either of them. In regard to the first submission, the record reads as follows:
“The rights of accused to legal representation explained. The accused states that he has no money, he will conduct his own defence.
God will be with him”.
It is clear that the appellant knew exactly what his rights were and that the court’s explanation of these to him must have
been sufficiently full for him to have appreciated what they were.
As to the mother’s evidence, it is trite that evidence of a complaint by a victim in a rape case is always admissible. This
ground is also, therefore, without substance.
The only point of any merit, which was also adverted to by the Magistrate in his judgment, is whether the corroboration required of
evidence in sexual offences and that required in applying the cautionary rule in respect of the evidence of minor children, could
come from the evidence of another minor child. Although the appellant did not argue this point before this Court, it was raised in
his original grounds of appeal and I will therefore deal shortly with it.
In England, under Section 38 of the CHILDREN AND YOUNG PERSONS ACT OF 1933, which requires corroboration of the evidence of young
children, it has been held that such corroboration cannot come from the evidence of another child, which equally requires corroboration
(see REX V MANSER 25C.A.R 18). No similar statutory enactment exists in Swaziland and that case has no application here.
It is clear, however, that the evidence of young children should be accepted with caution. The imaginativeness and suggestibility
of children are only two of a number of elements that require that this should be so. However, courts should not act upon any rigid
rule that corroboration must always be present before a child’s evidence is accepted (see R V MANDA 1951(3) SA 158 (A) at 163).
The question which the court should ask itself is whether the evidence of the young witness is trustworthy. An admirable guide to
this is provided by the judgment of Diemont JA in WOJI V SANTAM INSURANCE COMPANY LTD 1981(1) SA 1020 (A) at 1028 A-E:
“Trustworthiness, as is pointed out by Wigmore in his Code of Evidence para 568 at 128, depends on factors such as the child’s
power of observation, his power of recollection, and his power of narration on the specific matter to be testified. In each instance
the capacity of the particular child is to be investigated. His capacity of observation will depend on whether he appears “intelligent
enough to observe”. Whether he had the capacity of recollection will depend again on whether he has sufficient years of discretion
“to remember what occurs” while the capacity of narration or communication raises the question whether the child has
“the capacity to understand the questions put, and to frame and express intelligent answers” (Wigmore on Evidence Vol.II
para 506 at 596). There are other factors as well which the Court will take into account in assessing the child’s trustworthiness
in the witness-box. Does he appear to be honest – is there a consciousness of the duty to speak the truth? Then also
“the nature of the evidence given by the child may be of a simple kind and may relate to a subject-matter clearly within the field
of its understanding and interest and the circumstances may be such as practically to exclude the risks arising from suggestibility”
(per Schreiner JA in R V MANDA (supra))”.
In the present case the evidence of the children was given well. Each one of them saw what happened to the others and their stories
are substantially the same on all material aspects. The appellant did not deny what they had said. On appeal before us he said he
was “joking” or “playing” with the children and did not appreciate that what he was doing was wrong. While
the children may have thought it was some game they were playing with him, the appellant, who is a man in his 50s and clearly, from
the way he presented his argument, not a fool, could not have believed that he was doing nothing wrong by his sexual antics with
these little girls. He was in my view clearly correctly convicted on all three counts.
As for sentence, he received which has subsequently become the minimum sentence prescribed by law on the first two counts, which were
ordered to run concurrently. It cannot be contended that these sentences were excessive. The sentence of five years on the third
count was a fair and appropriate one. The Magistrate cannot be faulted for not letting it also run concurrently with the others.
Sentencing lies in the discretion of the trial court and this Court will only interfere with a sentence of the trial court if the
latter has misdirected itself or the sentence is excessive in the sense that it substantially exceeds that which this Court would
have passed. Neither of these factors exist in this case and the sentences must therefore stand. The appellant submitted that they
should have been backdated to the date of his arrest in July 1996. He was, however, only in custody for four months before being
released on his own recognisances until the day he was sentenced. This does not warrant this Court’s reducing in any way, or
backdating at all, the sentences in question.
In the result the appeal is dismissed and the convictions and sentences are confirmed.
P.H. TEBBUTT
JUDGE OF APPEAL
I agree
R.N. LEON
JUDGE PRESIDENT
I agree
J.H. STEYN
JUDGE OF APPEAL
Delivered in open court this day of November 2002.
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