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[2017] ZAWCHC 66
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B v S (A141/2017) [2017] ZAWCHC 66; 2017 (2) SACR 366 (WCC) (9 June 2017)
IN THE HIGH COURT OF
SOUTH AFRICA
WESTERN CAPE DIVISION,
CAPE TOWN
REPORTABLE
CASE NO: A141/2017
In
the matter between:
A
B
Appellant
and
THE
STATE
Respondent
JUDGMENT
DELIVERED ON 9 JUNE 2017
GAMBLE
et FORTUIN JJ:
INTRODUCTION
[1]
Late at night on Monday, 4 August 2014 a young
girl (whom we shall refer to as “KS”) was examined by the
medical staff
of the Rape Crisis Centre at the Karl Bremer Hospital
in Bellville. She was 7 ½ years old at the time, weighed 21 kg
and
was described as being of small stature. The examination was
conducted by Dr Celeste de Vaal, an experienced forensic specialist
who regularly conducted examinations of trauma and rape victims.
[2]
The doctor took a detailed history from KS who had
been brought into the Centre by two police officers. Her examination
of the child
revealed severe injuries of the genitalia, which
included abrasions and lacerations, an injury to the inside of her
mouth and bruises
to her head, face and upper back. Dr de Vaal
concluded that the child had probably been penetrated sexually, both
vaginally and
orally, and had also been subjected to a series of
physical assaults.
[3]
At the time that KS was being examined, her mother
and the appellant were both in police custody. The appellant was
subsequently
charged with two counts of sexual penetration of KS in
terms of s3 of the Criminal Law Amendment (Sexual Offences and
Related Matters)
Act, 32 of 2007 and one count of sexual violation in
contravention of s5(1) of the same Act, to which he later pleaded not
guilty.
The appellant appeared before the Regional Court in Parow and
in October 2016 was convicted on all three counts. The three
convictions
were taken as one for purposes of sentence and the
appellant was sentenced to life imprisonment. It was also directed
that his
name should be recorded in the Register of Sexual Offenders.
The appellant appeals now against conviction and sentence.
[4]
For the sake of completeness, we record that the
child’s mother was subsequently charged with assault and the
statutory failure
to take steps to address the ongoing sexual
molestation of KS and was herself convicted of such offences and
sentenced to 10 years
imprisonment which was conditionally suspended
for five years.
THE
EVIDENCE BEFORE THE TRIAL COURT
[5]
KS testified before the trial court with the
assistance of an intermediary in terms of s170A(1) of the Criminal
Procedure Act, 51
of 1977 (“the CPA”). Because of the
distress which KS experienced during her testimony it was spread over
two court
days, a fortnight apart. The trial court also heard the
evidence of KS’s mother (“ES”), Dr de Vaal and YJ,
an
aunt of KS and sister of ES, who lived a short distance away in
the same street, and in whose care KS had been placed after the
arrest of her mother.
[6]
The evidence revealed that KS, ES and an unnamed
son shared a bedroom in a maisonette in Kraaifontein with the
appellant, his wife
and their three married children. The appellant’s
wife (LB) is also a sister of ES. On the ground floor of the flat
were
the kitchen, bathroom and living room, while there were two
bedrooms on the upper level. The appellant, it seems, was the only
person in the home who was gainfully employed.
[7]
KS described three independent events of sexual
molestation by the appellant, all of them during the evening and in
his bedroom.
Although the charge sheet broadly describes the period
that the crimes were committed as “
during
2014
”
, the evidence suggests
that the incidents probably took place in June/July of that year,
with the last incident having occurred
over the first weekend in
August and immediately prior to the examination of KS by the doctor.
[8]
The first event described by KS was in support of
count 1. She related how the appellant had placed his hand over her
underwear
and fondled her vagina. She had no difficulty in describing
the incident to the regional court.
[9]
The second event involved an act of sexual
penetration of the vagina and of the mouth, as was alleged in count
2. That event appears
to have been accompanied by ejaculation on the
part of the appellant since the child’s mother testified that
at the time
she inspected her daughter’s underwear and found a
yellowish discharge thereon shortly after the incident had occurred.
KS
described this act of sexual penetration through use of the
vernacular phrase “
hy het met my
oulik gemaak”,
which, as the
regional magistrate pointed out, is a phrase commonly used by young
children in her court to describe sexual intercourse.
In relation to
the third event, KS described how the appellant penetrated her vagina
with his penis and she complained that it
had been painful.
[10]
The testimony of the child as to the acts of
sexual penetration, while understandably conveyed in simple terms, is
more than adequately
corroborated by the medical evidence of fresh
tears to the hymen and
labia majora
as
well as bruising of those areas. In addition, the doctor found
a tear to the “
frenulum”
(which apparently is a membrane located
on the inside of the upper lip). This was said to confirm the
probability of oral penetration
of the child prior to the
examination, although not immediately before it since there was found
to be a degree of healing of the
injury which had set in.
[11]
However, the most devastating corroboration of the
child’s version is to be found in the evidence of her mother
who admitted
to the trial court that she was aware of ongoing sexual
harassment by the appellant of her daughter. ES said that on more
than
one occasion she caught the appellant
in
flagrante delicto:
once when she
encountered him forcing the child to fondle him and another, on a
Sunday afternoon, while he was seated on his bed,
with his trousers
around his ankles and KS facing him between his legs. (On that
occasion the stained underwear of the child was
retrieved by ES and
this therefore accords with the circumstances surrounding count 2).
The alarmingly indifferent response of
the mother (perhaps concerned
about losing the sole breadwinner in the house) was to admonish the
appellant or to complain to his
wife, LB, and his adult son.
[12]
Regarding the incident which immediately preceded
the medical examination by Dr de Vaal, ES related to the trial court
how, on the
evening of 2 August 2014 (a Saturday) she became
suspicious when the child was again upstairs and did not respond to
her calls
to come down. As she went upstairs, said ES, she saw her
daughter just standing there. When LB asked KS to go out and buy
electricity
for the home, the child refused. ES said this infuriated
her and she laid into her daughter with a shoe, hitting her several
times
in the face. She also threw KS to the ground and trampled her.
The injuries sustained in this assault are more than adequately
corroborated in the J88.
[13]
It does not appear from the record just how KS
landed up in the care of her aunt, YJ, but the suggestion seems to be
that a woman
identified only as “W”, a neighbour of ES
and someone in whom she had confided earlier about the appellant’s
misconduct, must have alerted the police after ES went to W on the
Sunday afternoon asking for ointment to treat the child’s
wounds. That night, said the mother, ES slept over at another sister
of her’s (YS), who also lived nearby. ES said that she
and the
appellant were arrested by the police at her house during the course
of the Monday.
CORROBORATION
[14]
We are
required to approach the evidence of KS with caution, firstly because
she is a single witness, and, secondly because she
is a young
child
[1]
. We are satisfied that
the evidence of ES corroborates a pattern of regular sexual
molestation of the child by the appellant, which
she admitted she
condoned and for which she was subsequently convicted and
sentenced
[2]
. Further, her
evidence places KS in the immediate proximity of the appellant on the
Saturday evening (i.e. count 3) just before
she was assaulted by her
mother.
[15]
The trial court also heard the evidence of YJ who
testified that the child had confided in her earlier in the year,
probably in
June 2014, that the appellant had sexually penetrated her
(“
oulik gemaak”).
This
evidence would be admissible as the first report in relation to the
first incident of sexual penetration (count 2 and the second
event
referred to by the child). YS also testified how KS arrived at her
house on the Monday and confided in her about an act of
oral sexual
penetration perpetrated by the appellant on her on the previous
Sunday (3 August). Shortly thereafter the police arrived
and took KS
off to Karl Bremer Hospital. This remark on the part of ES was
provisionally received by the trial court as a first
report in regard
to the most recent event.
[16]
The version of the child as told to Dr de Vaal on the Monday night
was recorded in shorthand as follows on the J88 medical
report which
the doctor completed contemporaneously with her physical examination:
“
Brought
in by 2 police officers – mom & uncle arrested. Alleged
while back she was forced to have oral sex (with) uncle
– had
to suck his penis while he molested her vaginally. Then Saturday
uncle raped her – told mum who scolded her then
and said stay
out of her uncle’s room. Today her mother then assaulted her
physically as well face, head and stepped on her.
Soiled clothes,
only has nightgown on and shoes.”
The
J88 also records that the child was found to be “
very shy
and fearful”.
[17]
The version of the appellant was a simple denial in relation to all
issues and he could advance no reason whatsoever as to
why the child
might have wrongly implicated him. This conundrum must be considered
in light of the fact that the appellant was
regarded by the child
with a significant degree of trust, much like that of a grandfather.
He said that the child was well-disposed
to him and that he sometimes
helped her with her homework. There was clearly no basis for
antipathy on the part of the child towards
the appellant.
[18]
In her testimony ES confirmed that the appellant was the only
breadwinner in the house (aside from social grants received by
her in
respect of the children) and her implication of him in these events
was tantamount to economic suicide for her and the family.
Significantly, the appellant could not explain away the damning
evidence of ES regarding the number of occasions in which she caught
him in compromising positions with the child. We consider that there
is one particularly curious aspect of the appellant’s
evidence.
He testified that on the Sunday (3 August) he phoned his employer to
inform him that he would not be in on the Monday,
citing a bad
headache as the reason. Perhaps he realised then that he had gone too
far and that the long arm of the law was about
to extend its reach to
him?
[19]
Be that as it may, the denial of the appellant stands in stark
contrast to the overwhelming totality of evidence against him.
When
the various pieces of the puzzle are put together the State’s
case is drawn into sufficiently sharp focus that the appellant’s
version simply cannot carry the day
[3]
.
In our view, the trial court correctly rejected his evidence in the
circumstances as not being reasonably possibly true.
[20]
Given that the court was dealing with the evidence of a young child,
as we have said, it is axiomatic that her testimony had
to be
approached with the utmost caution. There are some contradictions
here and there as to what happened exactly and when, and
there may be
instances which she related which were not covered by the charges.
But once the State’s evidence is viewed holistically
there can
be little doubt that the child’s version is properly
corroborated in all material respects in accordance with the
principles applicable in the cases already referred to.
ADMISSIBLE
EVIDENCE?
[21]
On appeal, Mr Theunissen argued on behalf of the appellant that the
evidence of the child had been irregularly taken by the
regional
magistrate, that she had not been properly cautioned in terms of the
relevant provisions of the CPA and that there was
therefore no
admissible evidence from KS on the record. We now deal with that
argument.
[22]
The record reflects that before KS gave evidence the court was asked
to make a ruling in terms of s170A(1) of the CPA that
her evidence
could be adduced through the intercession of an intermediary. The
defence did not object thereto and after considering
the
qualifications and experience of the proposed intermediary an order
was duly granted. Thereafter, KS gave evidence
in camera.
[23]
She was asked in some detail by the regional magistrate, through the
intermediary, what grade she was in at school and how
old she was.
Her replies that she was in Gr 3 and was then nine years old were
factually correct. Then she was asked some questions
aimed at
establishing whether she could distinguish right from wrong. There
were no difficulties with her replies in that regard
either. The
regional magistrate then remarked as follows:
“
HOF:
Die
Hof is tevrede dat die getuie die verskil verstaan tussen ‘n
waarheid en die leuen. Sy word dan verklaar ‘n bevoegde
getuie
[4]
……
HOF:
Ek
waarsku nou vir jou jy moet net die waarheid praat, niks anders nie
net die waarheid, verstaan jy dit?
[5]
.......
GETUIE:
Ja.”
[24]
Mr Theunissen argued that this admonition from the court was not
sufficient to render KS’s testimony admissible as evidence.
Relying on the Full Bench decision in this Division in
Bessick
[6]
,
counsel submitted that the failure of the regional magistrate to
specifically ask KS whether she understood what the concept of
an
“
oath”
embraced
was fatal to the admissibility of her evidence. He suggested that
such a direct enquiry was an obligatory first step to
be undertaken
by the court before establishing whether the witness could
distinguish between right and wrong. Counsel argued that
absent this
enquiry, the witness could not be permitted to deliver unsworn
evidence in terms of s164 of the CPA.
[25]
The provisions of s164(1) of the CPA are to the following effect:
“
When
unsworn or unaffirmed evidence admissible
164
(1)
Any person who, is found not to understand the nature and import of
the oath or the affirmation, may be admitted to give evidence
in
criminal proceedings without taking the oath or making the
affirmation: Provided that such person shall, in lieu of the oath
or
affirmation, be admonished by the presiding judge or judicial officer
to speak the truth.”
[26]
That section is to be considered in conjunction with s162(1) which
reads as follows:
“
Witness
to be examined under oath
162
(1)
Subject to the provisions of sections 163
[7]
and
164, no person shall be examined as a witness in criminal proceedings
unless he is under oath, which shall be administered by
the presiding
judicial officer or, in the case of a superior court, by the
presiding judge or the registrar of the court, and which
shall be in
the following form:-
‘
I
swear that the evidence that I shall give, shall be the truth, the
whole truth and nothing but the truth, so help me God.’
[27]
S164 has been the subject of quite considerable judicial comment over
the years, including judgments by the Supreme Court of
Appeal
[8]
and various Provincial Divisions
[9]
.
It bears mention that those cases deal with the import of the section
in question before its amendment in 2007 when the words
“
from
ignorance arising from youth, defective education or other cause”
appeared
after the word “
who
”
and
before the words “
is
found”
in
the first line thereof.
Hiemstra
[10]
points
out that in its current form the section is accordingly of wider
application than before and “
(t)he
court can now make a finding that a witness does not understand the
oath on any basis.”
[28]
The preferred approach in relation to the procedure to be adopted by
a trial court before applying s164 was summarised as follows
by
Streicher JA in
Mekka :
[11] The fact that the
magistrate, after having established the age of the complainant,
proceeded to enquire whether she understood
the difference between
truth and lies and then warned her to tell the truth is, in my view,
a clear indication that she considered
that the complainant, due to
her youthfulness, did not understand the nature and import of the
oath. In her additional reasons
the magistrate confirms that to have
been the case. The magistrate did, therefore, make a finding that the
complainant was a person
who, from ignorance arising from the
youthfulness, did not understand the nature and import of the oath.
The magistrate saw and
heard the complainant and this Court is in no
position to question the correctness of her finding.
[12]
The respondent submitted that the trial court also had to enquire
whether the complainant understood the difference between
truth and
falsehood. Whether such an enquiry need be held is a question that
was not decided in
S
v B
[11]
and
need not be decided in this case, as it is clear that the magistrate
conducted such an enquiry. The complainant said that she
understood
the difference and that one got punished if one were to tell a lie,
thereby indicating that she knew that it was wrong
to tell a lie. It
was the basis of these answers that the magistrate concluded, as she
was in my view entitled to do, that the
complainant understood the
difference between truth and falsehood.
[13] It follows that
the magistrate did not commit an irregularity by allowing the
complainant to testify after having warned her
to tell the truth.”
[29]
In
Williams
, Chetty J made the following observations
in relation to the facts before that court:
“
[9]
When the complainant was called upon to testify, the uncontroverted
evidence of Ms Phillips
[12]
,
that the complainant had the intellectual capacity to differentiate
between the truth and falsehood, had already been led and
must
obviously have weighed heavily with the judge. Consequently it is
axiomatic that the judge’s admonishment, that the
complainant
speak the truth, flowed directly from his conviction that, by reason
of her youth, the complainant did not understand
the nature and
import of the oath. Experience shows that even in cases where
witnesses are much older than the complainant the
word ‘oath’
remains a nebulous concept, whereas the invocation to speak the truth
is more readily appreciated and understood.
The transcript
demonstrates unequivocally that the judge was satisfied that the
complainant comprehended the difference between
truth and falsehood,
and his admonishment that she speak the truth was in my view
sufficient to render complainant’s evidence
admissible.”
[30]
It will be observed that in both of these
dicta
there was no
procedural requirement that the court should first enquire of the
witness whether she understood what the ‘
oath’
was. It was left up to the court to assess whether this was probable
or not. In
Bessick
,
Henney J made the following
observation (with reference to cases such as
S v B
,
Mekka
and
Williams
)
as to the
advisable approach:
“
[19]
‘n Formele ondersoek hoewel wenslik, om vas te stel of ‘n
getuie oor die vermoee beskik om die eed of bevestiging
te begryp, is
nie nodig nie. Indien ‘n hof ‘n mening vorm uit
omringende omstandighede dat ‘n getuie nie die
aard en
betekenis van die eed begryp nie, kan die hof die getuie waarsku”
[13]
.
[31]
In the circumstances, we are of the view that the approach advocated
by counsel for the appellant places the bar too high.
Having
considered the approach of the regional magistrate in this case, we
are of the view that she obviously satisfied herself
as to the
inability of KS to formally take the oath and correctly applied the
provisions of s164; thereby ensuring that the evidence
deposed to was
inadmissible as such. Most importantly, as demonstrated in para 23
above, the trial court formally admonished the
witness to speak the
truth as required by that section of the CPA.
CONCLUDING
REMARKS ON THE MERITS
[32]
Having satisfied ourselves that there was admissible evidence from
the complainant on record, we are of the view that such
evidence
(properly corroborated in the various respects referred to)
conclusively established the guilt of the appellant on each
of the 3
counts. The appeal against conviction can therefore not succeed.
SENTENCE
[33]
When sentencing the appellant, the regional magistrate was confronted
with two convictions (on counts 2 and 3) that each attracted
compulsory minimum sentences of life imprisonment in terms of the
so-called minimum sentencing legislation, in that the victim
was a
person under 16 years of age.
[14]
On count 1 there was no minimum or prescribed sentence.
[34]
Against this statutory background the regional magistrate decided not
to impose individual sentences on each count but rather
to treat the
3 counts as one for the purposes of sentence and to impose the
ultimate sentence, having found that there were no
substantial and
compelling reasons to deviate from the prescribed minimum. While this
approach is permissible in appropriate circumstances,
it is not the
preferred route where there is a clear distinction in time to be
drawn between the particular offences in respect
whereof the offender
has been convicted.
[15]
[35]
In
Kruger
[16]
Shongwe
JA restated the approach:
“
[10]
It is said to be undesirable to impose a global sentence where there
are multiple different counts (
S
v Immelman
1978(3)
SA 726 (A) at 728E-729A). However, the practice of taking more than
one count together for purposes of sentence is neither
sanctioned nor
prohibited by law. In
S
v Young
1977
(1) SA 602
(A) at 610 E-H Trollip JA said:
‘
Where
multiple counts are closely connected or similar in point of time,
nature, seriousness, or otherwise, it is sometimes a useful,
practical way of ensuring that the punishment imposed is not
unnecessarily duplicated or its cumulative effect is not too harsh
on
the accused.’
[36]
In
Swart
[17]
the
Supreme Court of Appeal interfered with the composite sentence
imposed in the court
a
quo
and
directed that separate sentences should be imposed for each offence
in circumstances where the victim had been raped on two
occasions
about four hours apart. In the present case the three counts were
distinguishable in terms of time (they were clearly
days apart) and
we are of the view that the underlying principle of individual
sentencing should therefore have applied.
[37]
From the record it seems to us as if the regional magistrate
attempted to counter the cumulative effect of consecutive sentences
on each of the counts by imposing a single sentence of life
imprisonment. While she was permitted to adopt that approach we
consider
that it was undesirable having regard to the circumstances
at hand.
[38]
There were a number of different considerations to be taken into
account by the trial court. Firstly, the method may present
difficulties on appeal should one or more of the convictions be set
aside. Secondly, the legislature has seen it fit to prescribe
minimum
sentences of life imprisonment for the sexual penetration of a minor.
It is in our view appropriate that each offence be
dealt with
individually, particularly because the court must assess whether
substantial and compelling circumstances to avoid the
ultimate
sentence have been established in respect of each contravention.
Thirdly, the sentence on count one has to be distinguished
from those
on counts two and three in light of the fact that the contravention
is less grave than those on the other counts. Fourthly,
it is
important from the point of view of both deterrence and retribution
that society perceives that individual criminal acts
are treated
accordingly.
[39]
When considering the cumulative effect of the sentences imposed it is
important to bear in mind that our law contains an adequate
safety
mechanism to ensure that an accused who is sentenced to life
imprisonment, in addition to other sentences, will not be sentenced
in an unfair and unjust manner. This safety mechanism is contained in
subsections 39(2)(a)(i) and (ii) of the
Correctional Services Act,
111 of 1998
which direct that all finite sentences are to be served
concurrently with any life sentence and, further, that multiple life
sentences
shall run concurrently. Sentencing the appellant
respectively for each of the convictions would therefore not result
in one of
the life sentences being extended.
[40]
As we have already indicated, it is most important in our view that
the sentencing court must ensure that the eventual sentence
is a
competent one for each of the convictions. The sentence imposed
should therefore reflect the seriousness of each of the crimes
of
which the perpetrator has been convicted. The facts before us are
that the appellant was convicted on two separate counts of
rape, each
of which singularly creates the possibility of the imposition of a
life sentence. In addition to this, he was convicted
on a count of
sexual violation. In our view, the sentence imposed should reflect
this. In this regard we refer to the following
dictum
of Mpati
AJA in
Swart
“
[26]…Die
vonnis deur die Verhoorhof opgele ten opsigte van hierdie aanklagte
moet vervang word met ‘n vonnis wat ek
as toepaslik beskou. Om
hierdie doel te bereik, meen ek dat dit gerade sal wees om ‘n
afsonderlike vonnis op te le ten minste
vir die tweede verkragting…”
We
are in complete agreement with this sentiment.
[41]
In this matter the appellant sexually violated the helpless
complainant on a number of occasions. Each and every violation
of this child amounted to a separate crime and the failure to
sentence the appellant separately on each such crime will not, in
our
view, sufficiently highlight the court’s abhorrance of these
crimes. It will send the wrong message to the public. This
court has
an obligation to reflect on the heinous nature of the crimes and in
particular the fact that they occurred repetitively
within the
sanctuary of the home – a place where the victim was entitled
to feel safe in the hands of those she trusted.
Sentencing the
appellant to only one life sentence will therefore not reflect the
seriousness with which this court considers these
and similar crimes:
crimes which destroyed the the childhood of this complainant. She
will always carry the scars of what the appellant
did to her and she
will also always have to live with the knowledge that those adults
who were supposed to love and protect her,
allowed this to happen.
This court has no option but to pronounce appropriately on these
crimes by sentencing the appellant correctly.
[42]
In the circumstances, we are not satisfied that the magistrate
correctly sentenced the appellant and in the interest of justice,
we
will interfere by replacing the sentence imposed with the sentences
set out below.
ORDER
OF COURT
A.
The appeal against the convictions is dismissed
and the convictions of the regional magistrate are hereby confirmed.
B.
The sentence imposed by the regional magistrate is
hereby set aside and replaced with the following :
“
The
accused is sentenced as follows:
Count
1, 5 years imprisonment;
Count
2, Life imprisonment;
Count
3,
Life
imprisonment
.”
__________________
GAMBLE,
J
___________________
FORTUIN, J
JUDGES
:
Gamble
J
et
Fortuin
J
JUGDMENT
DELIVERED BY
:
Gamble J
FOR
APPELLANT
:
Adv.
D N Theunissen
INSTRUCTED
BY
:
Legal Aid SA - Cape Town
FOR
RESPONDENT
:
Adv.
K Pillay
INSTRUCTED
BY
:
Director
of Public Prosecutions – Cape Town
DATE
OF HEARING
:
26
May 2017
DATE
OF JUDGMENT (Reasons)
:
9
June 2017
[1]
R
v Manda
1951
(3) SA 158
(A) at 163;
Woji
v Santam Insurance Co.Ltd
1981
(1) SA 1020
(A) at 1028;
S
v Mathebula
1996
(2) SACR 231
(T) at 234g – j.
[2]
Although
there is no direct evidence of the conviction it would appear as if
ES was convicted,
inter
alia
,
of a contravention of
s54(1)(a)
of the Criminal Law (Sexual Offences
and Related Matters)
Amendment
Act, 32 of 2007.
[3]
S v Van der Meyden
1999
(2) SA 79
(W) at 82C-E;
S
v Mbuli
2003
(1) SACR 97
at 110e;
Trainor
v S
[2003]
1 All SA 435
(SCA) at [9].
[4]
“
The court is
satisfied that the witness understands the difference between a
(sic) truth and the (sic) lie. She is thus declared
to be a
competent witness.”
[5]
“
I now warn you
that you must speak only the truth and nothing but the truth, do you
understand that?”
[6]
S v Bessick
[2012]
ZAWCHC 248
(29 May 2012)
[7]
S163 provides for a
witness to make an affirmation to solemnly swear to speak the truth
in circumstances where s/he objects to
taking the oath.
[8]
S v B
2003(1)
SACR 52 (SCA);
Director
of Public Prosecutions, KwaZulu Natal v Mekka
2003(2) SACR 1 (SCA);
[9]
S
v Stefaans
1999(1)
SACR 182 (C);
S
v Vumazonke
2000(1)
SACR 619 (C);
S
v Malinga
2002(1)
SACR 615 (N);
S
v Williams
2010
(1) SA 493 (ECG).
[10]
Hiemstra’s
Criminal Procedure
at
22-48
[11]
See footnote 7 above.
[12]
A social worker who had
interviewed the complainant prior to the hearing with a view to
recommending the use of an intermediary
in adducing the child’s
evidence.
[13]
“
While a formal
enquiry is preferable to establish whether a witness has the
capacity to understand the oath or affirmation, it
is not strictly
necessary. In the event that the court forms the opinion from the
surrounding circumstances that a witness does
not understand the
nature and extent of the oath, it can warn the witness."
[14]
S51(1) read with
Schedule 2 Part1 of the
Criminal Law Amendment Act 105 of 1997
.
[15]
SS Terblanche
A
Guide to Sentencing in South Africa , 3
rd
ed at 202;
[16]
S v Kruger
2012(1)
SACR 369 (SCA)
[17]
S v Swart
2000(2)
SA 566 (SCA) at [26]-[27]