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[2018] ZAWCHC 15
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Fisher v S (A51/2016) [2018] ZAWCHC 15; 2018 (1) SACR 377 (WCC) (9 February 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
REPORTABLE
CASE
NO: A 51/2016
In
the matter between:
ANWAR
FISHER
Appellant
and
THE
STATE
Respondent
JUDGMENT
DELIVERED ON FRIDAY 9 FEBRUARY 2018
GAMBLE,
J:
INTRODUCTION
[1]
The appellant was convicted in the Regional
Court, Mitchell’s Plain on 6 charges under the Criminal Law
(Sexual Offences and
Related Matters) Amendment Act, 32 of 2007
(“SORMA”) and sentenced to 5 years imprisonment in terms
of s276 (1)(i)
of the Criminal Procedure Act, 51 of 1977 (“the
CPA”). The appeal before us is against the convictions only.
[2]
The background circumstances tell a story
as old as time itself: the illicit, lustful exploitation by an older
man of the blind
infatuation of a teenager, much like Lolita in the
celebrated novel by Vladimir Nabokov. But this case has a twist
unlike so many
of the others.
[3]
The complainant in all of the charges is a
young woman who was 14 years old at the time that the offences were
committed. For the
sake of anonymity I shall refer to her only as
“M”. The evidence establishes that the 43 year old
appellant, a sometime
captain in the S.A.Police’s reserve force
and a deputy sheriff by occupation, and M’s family were social
acquaintances:
the appellant was a regular visitor to M’s home
in Rylands, as were certain of his daughters, while M and her mother
(to
whom I shall refer only as “L”) often visited the
appellant’s home in Mitchell’s Plain.
[4]
The appellant’s daughters attended
schools in the Athlone area and he customarily ferried them to and
from school every day.
In light of the fact that M attended high
school with one of his daughters, the appellant regularly picked her
up at home in the
morning, dropped her off at school with his
daughters, and in the afternoon dropped her off at home again. On the
face of it, these
were two happy families who enjoyed one another’s
company.
[5]
But here is the twist in the tale.
Unbeknown to the rest of their respective families, the appellant and
L had been involved in
an adulterous relationship since approximately
2007. This relationship was conducted clandestinely, intensely and
intimately. The
evidence presented by the State in this matter
demonstrates that around mid-2011, at a time when L was pregnant with
her 6
th
child, the appellant commenced directing his attention towards M and
soon became intimate with her. The appellant denies any sexual
contact with M and says that the case against him is the devious work
of L, who behaved as a woman scorned when the appellant eventually
elected to put a stop to their relationship early in 2012.
THE
CHARGES PREFERRED AGAINST THE APPELLANT
[6]
Initially the appellant faced nine
charges –
·
three charges of exposing a child to
pornographic images in contravention of s19(a) of SORMA in that on 26
and 27 January 2012 he
sent to M, via the cellphone service known as
“WhatsApp”, 3 images of his penis;
·
two charges of sexual assault in
contravention of s 5(1) of SORMA arising from separate incidents
committed on the same day in July
2011 when he firstly placed M’s
hand on his erect penis without her consent and, secondly, when he
rubbed M’s vagina
with his hand, also without her consent;
·
four charges of statutory rape in
contravention of s15(1) of SORMA in that he committed the following
acts of sexual penetration
of M with her consent at a time when she
was aged between 12 and 16 years (to wit, 14 years) –
o
in August 2011 and at Lansdowne, by
penetrating her mouth with his penis;
o
in August 2011 and also at Lansdowne, by
penetrating her vagina with his penis;
o
in December 2011 and at Sybrand Park, by
penetrating her vagina with his penis; and
o
Also in December 2011 and at Sybrand Park,
by penetrating her vagina with his penis on another occasion.
[7]
The appellant was acquitted on the three
pornography charges when the Regional Magistrate found that it was
possible that the images
may have been intended by the appellant to
have been sent to a cellphone in the possession of L (rather than M),
as he subsequently
claimed. It is accordingly not necessary to deal
with those charges in any particular detail in this judgment save to
say that
there will be referral to the pornography in relation to
issues of credibility, probability and the like.
THE
CELLPHONE EVIDENCE
[8]
At the outset the State adduced the
evidence of two police officers in relation to the use of cellphone
communication in this matter.
Firstly the investigating officer,
D/Sgt Chiteshe, testified that after receiving the docket on 2
February 2012 for purposes of
investigation, she approached the
accused the following day and seized two cell phones in his
possession: a Blackberry “Curve”
model and the other a
“Chat 2” model. On 6 February 2012 D/Sgt Chiteshe seized
a further two cellphones, this time
in the possession of M, namely a
Blackberry (model not disclosed) and a red Nokia “Xpress Music”
model.
[9]
The following witness who was called by the
State was D/Lt Col. Linen, a forensic investigator specializing in
cell phone analysis.
He examined the accused’s Blackberry and
M’s Nokia looking for any instances of communication between
the 2. On the
Blackberry the witness found several photographs of the
appellant’s penis stored on the phone’s memory but
nothing
similar on the Nokia.
[10]
Mr. Linen explained the various forms of
social media platforms in operation at the time. Firstly he mentioned
the “BBM”
message system which allowed owners of
Blackberry phones to communicate directly with each other. Then he
referred to “MXit”
which was described as a “chat
program” which allowed the users of cell phones to send text
messages directly to each
other while using a secure service which
could only be accessed via a PIN number which had to be entered into
the phone by the
user. The witness also referred to the “WhatsApp”
service which allowed 2 (or more) cell phone users to send messages,
photographs and video material to one another. He pointed out that if
WhatsApp was used to send a photograph that image would automatically
be saved to the memory of the receiving instrument and would be
required to be manually deleted if no longer wanted by the recipient.
[11]
Given that no data had been subpoenaed from
the relevant cellphone service providers in terms of s205 of the CPA,
the witness was
unable to assist the court in establishing whether
there had been any direct cell phone communication between the
accused’s
Blackberry and M’s Nokia. The witness could not
say either whether M’s Nokia was used by L at any time and was
therefore
unable to dispute the appellant’s version that he
believed that the pornographic images on his phone had been sent to L
and
not M. I pause to point out that it was the appellant’s
case that L too had sent pornographic images of herself to him but
that these had been immediately deleted from his Blackberry to avoid
detection by his wife.
THE
COMPLAINANT’S EVIDENCE
[12]
The complainant testified that in 2011 she
was a Grade 9 pupil at a high school in Athlone and 14 years old at
the time. M told
the court that her family and the appellant’s
family regularly visited one another and that on occasion she would
stay over
at the appellant’s house in Mitchell’s Plain
where she would normally share a bed with the appellant’s
daughter,
K, who was a school friend of hers.
[13]
M
described the first incident of sexual contact between the appellant
and herself on a morning in July 2011 after she had overnighted
at
his house. She said that the appellant was in bed watching TV and
that some of his daughters were lying on the bed next to him
also
watching TV. M said that she sat on a stool
[1]
next to the bed on the appellant’s left while his daughters
were lying on his right. While she was so seated, said M, the
appellant touched her breast and thereafter surreptitiously took her
hand and placed it under the blanket on his erect penis. M
said that
she was surprised by what happened but maintained her silence. When
asked why it was that the appellant’s daughters
could not see
what had happened, M said that the appellant had drawn his feet up
towards his body and in so doing the blanket had
created a natural
obstruction which interfered with the girls’ line of sight.
[14]
M testified that later the same day the
appellant drove her back to her parents’ home. She said that
just the two of them
were in the car and that along the way the
appellant reached over and placed his hand inside her jeans and under
her underwear,
thereby making direct contact with her vagina which he
rubbed for “
a short
while”
.
This she said was for about 10 minutes and she described her reaction
as “
confused and scared
”.
Nevertheless, M did not tell anyone about the incident.
[15]
The
next contact allegedly occurred after dark during August 2011 when
the appellant again drove M back home from his house. The
route which
he followed took them through the industrial area of Lansdowne and M
said that after he had pulled over in a quiet
area the appellant
requested her to perform oral sex on him
[2]
.
This evidently lasted approximately 15 minutes before the appellant
ejaculated on his lap. Thereafter, said M, the appellant asked
her to
remove her jeans and underwear and sit on his lap facing the steering
wheel of the car. She complied with his request whereupon
the
appellant penetrated her vagina with his penis. This evidently went
on for a further 20 minutes and M described it as painful
but she did
not suggest that the intercourse did not take place without her
consent.
[16]
M told the Regional Magistrate that the
appellant told her that she should not tell anybody about what had
happened and she said
that when she arrived home she behaved quite
normally. M did not disclose anything about that incident to her
parents (who were
home) but rather just had a shower and went to bed.
[17]
M testified that later that month a second
incident occurred when the appellant picked her up after school one
afternoon and drove
her to a quiet spot in the residential suburb of
Sybrand Park (near Athlone) where he stopped at an open plot near the
suburban
railway station. Once again M voluntarily performed oral sex
on the appellant who thereafter penetrated her vaginally with his
penis. She described how the appellant wiped himself clean after he
had ejaculated. Once again, M described how, when she arrived
home,
she nonchalantly walked into the house, greeted her parents and went
to do her homework.
[18]
A further incident of consensual
intercourse allegedly occurred in December 2011 when the appellant
picked up M early from school
one day and took her back to the same
place in Sybrand Park. Once again an act of oral sex was followed by
vaginal penetration,
only on that occasion the appellant is alleged
to have ejaculated inside M’s vagina and thereafter to have
cleaned her with
what she described as “
a
wipe”.
[19]
On the way home the appellant stopped off
and bought M a cold drink and enquired of her how she felt. M said
she replied that she
was okay. Upon arriving home, L asked M why she
was so late. The latter informed her mother that she had been
“
working”
with
the appellant. M acknowledged that she knew that the appellant’s
work involved him driving around and dropping off documents
at
people’s houses. The evidence suggests, too, that the appellant
went into M’s house on that occasion.
[20]
M
then described how she and the appellant had cellphone communication
with each other during January 2012. She said that she did
not have
her own phone at the time and that between December 2011 and February
2012 she used her mother’s Blackberry cell
phone to communicate
with the appellant using the WhatsApp and MXit platforms. M described
the subject of their communications
as “
sexual
stuff”
[3]
.
[21]
M said that in addition to these text
messages, the appellant sent her three photographs of his erect penis
which she saved to the
phone and she went on to describe in detail
what was depicted on the photographs. When shown copies of the
photographs which Linen
had downloaded off the appellant’s
Blackberry, M confirmed that these were the images that had been sent
to her. Linen had
earlier handed copies of the photographs to the
court. The supporting data handed in confirm that they were created
between 26
January and 1 February 2012
[22]
M
testified that in January 2012 L had gone to Mossel Bay one weekend
to visit her own mother. On that occasion, said M, she asked
the
appellant (who was busy with his rounds as sheriff) via sms to buy
her R5 worth of airtime as the shop near her house where
she usually
bought airtime was closed while the owner was at mosque. M said
that the appellant replied that he would do so
in exchange for oral
sex.
[4]
M explained that the appellant complied with her request but that she
did not offer any
quid
pro quo.
For the sake of convenience I shall hereinafter refer to this
communication as “
the
airtime sms”.
[23]
M further testified that when L returned
from Mossel Bay her mother went through the Blackberry phone and came
across the airtime
sms. This led to L discovering about the
relationship between the appellant and M who thereupon confessed
everything to her mother.
L assured M that there was nothing to be
scared of and subsequently took her to the Mitchell’s Plain
police station for purposes
of making a statement.
[24]
Perusing
the transcript of the proceedings in the lower court, it is apparent
that M (who was by then 17 years old) gave her evidence
in a clear
and coherent manner and the Regional Magistrate’s assessment in
her supplementary reasons of 15 January 2016 regarding
M’s
demeanour and credibility is, in my view, entirely justified.
[5]
Further, M withstood her cross-examination fairly well: the defence
was unable to make any significant inroads into her evidence-in-chief
other than to expose the sort of limited inconsistencies that one
would expect from a young witness in a matter such as this. In
addition, it appeared that when she was initially cross-examined M
was fasting during the Muslim holy month of Ramadan (June 2014)
and
that this had affected her ability to concentrate properly.
Accordingly, when she complained about this the Regional Magistrate
postponed the case until November 2014: the cross-examination was
therefore spread over several months.
[25]
The thrust of the defence case, as it was
put in the cross-examination of M, was to the effect that the
appellant had not been intimate
with M in any way on any of the
occasions described by her. It was further contended that the
appellant had never travelled alone
with M in his car and that on
each occasion that he gave her a lift from school one or more of his
daughters was present in the
car.
[26]
It
was initially suggested to M during the second phase of cross-
examination in November 2104 by his counsel in the court
a
quo
[6]
that L was the driving force behind the laying of charges against
him
[7]
.
However, no real substance was given to this assertion in cross
examination. Then just a little while later in cross examination
it
was put to M that she herself had been instrumental in exposing the
relationship with the appellant.
[8]
Once again no detail was given regarding the facts underpinning this
suggestion, but, in any event, the assertion is senseless
in the
absence of a relationship of sorts between the appellant and M. I
shall deal with this point later when I discuss the defence
case.
[27]
It was further suggested by defence counsel
to M that any pornographic photographs which had been sent to her
were erroneously transmitted:
that they were actually intended for
her mother because the appellant had assumed that L was using the
Blackberry to which he had
sent the photographs at the time. M
disputed this, saying that there was no room for mistaken belief on
the part of the appellant
as to the recipient of the photographs
because the two of them were “
chatting”
via cell phone at the time.
[28]
Regarding
the airtime sms, the appellant’s case ultimately was that he
admitted that the text had been sent to M, but that
it was intended
to be an oblique, teasing reference to a young man called Tashriq,
who was apparently known to M. The suggestion
was that M had been
intimate with that person
[9]
.
M pertinently took issue with this suggestion and said that there was
no room for any misunderstanding
[10]
.
Given that the airtime sms plays a key role in this case, I shall
revert to it too when I evaluate the appellant’s evidence.
[29]
M was
questioned at length by the Regional Magistrate in an attempt to
clarify some of her answers. Firstly, the witness said that
when she
communicated with the appellant by cellphone she would use MXit on
the one handset and WhatsApp on the other. When doing
so, said M, she
would always tell the appellant that it was she who was calling
[11]
.
She also pointed out that while each of them had their own accounts,
L was unable to access her MXit communications (and vice
versa) as
they were password-protected.
[30]
Then M explained to the court the events
that led to her mother reporting the matter to the police. She said
that they were out
driving somewhere, that L found her phone in the
car and that she went through it. Later that evening L confronted M
at home regarding
what she had seen and it was evident from that
interaction that L had seen both the photographs which the appellant
had sent her
daughter, as well as the airtime sms. M told the court
that her mother still had the airtime sms on her phone and that it
was available
for production to the court. She also said that she had
received the photographs via WhatsApp and had deleted them off the
WhatsApp
platform but not off the phone’s photograph library
where they were automatically stored.
THE
EVIDENCE OF THE COMPLAINANT’S MOTHER
[31]
The last witness for the State was the
complainant’s mother, L. She told the court that she had known
the appellant socially
for 8 -10 years, having met him through a
relative. L said that she had 2 cell phones at the time of this
incident – a late
model Blackberry and a red Nokia “Music
Express”- to which both she and her daughter M had access.
Generally, she would
leave the Nokia for M’s use when she went
out with the Blackberry.
[32]
L said that she gave birth to her 6
th
child, a baby boy, on 6
th
June 2011. She said that when she returned home from hospital after a
painful confinement she saw M literally hanging onto the
appellant.
She let things go because she did not wish to provoke an argument at
that stage but later that evening L said that she
confronted M and
scolded her regarding what she considered to be inappropriate
behaviour with the appellant. L said that M was
tearful and told her
that while her mother was in hospital the appellant had approached
her while she was still in bed and, as
he lay on top of the child,
told her that he wanted to have intercourse with her.
[33]
This evidence is inadmissible hearsay and
was not dealt with by M in the witness box. In any event, L said that
she decided not
pursue the matter further with the appellant at that
stage, firstly because he had unexpectedly taken himself off to
hospital with
chest pains (which she assumed may have been indicative
of a heart complaint) and secondly, because she did not want to
jeopardise
the children’s’ transport arrangements to
school.
[34]
L
went on to describe an incident when she and her family had visited
the appellant’s home for a braai. When they set off
back home,
L said, they left M with the appellant as he was going to the shops
to buy chocolate and undertook to bring her home
later. When the
appellant dropped her off, L described M’s behaviour as
unusual. She said the child was very playful and
rather flighty,
running around with a handkerchief in hand. M told her mother that
she had vomited into the handkerchief. After
the appellant had driven
off, L said that M unexpectedly enquired of her whether it was true
that the appellant had gone for “
male
sterilisation
”
[12]
.
This, too, is inadmissible hearsay in light of the fact that M did
not confirm it under oath.
[35]
L
also said that M was very protective of her cellphone that day and
deleted all the messages on it: L said that she was concerned
because
she was unable to view any of the messages which M seemed to want to
keep away from her. L described how M went to shower
and how she
later found the handkerchief neatly hanging there to dry. This made
her suspicious that something untoward had happened
between M and the
appellant
[13]
.
[36]
With reference to the airtime sms, L said
that she was at the beach with a friend when the “
red
phone”
fell onto the sand. Her
friend handed the phone to her and L said that she then scrolled
through it and came across the sms in question.
She immediately
confronted the appellant about this over the phone but he was
somewhat flippant and said it was all just a joke.
L became alarmed
that the appellant might be pursuing her daughter and said that she
decided to urgently seek counsel from her
mother in Mossel Bay. It
had clearly dawned upon L that she and her daughter were possibly
involved with the same man.
[37]
As
fate would have it, L’s husband was unable to take her to the
bus station to travel to Mossel Bay and he asked the appellant
to
help out because the appellant was evidently the friend the family
turned to when they needed such a favour. En route to the
bus station
L said that she confronted the appellant regarding his potential
involvement with M, told him she knew of the airtime
sms and
admonished him to stay away from her daughter. She described the
appellant’s response as strange.
[14]
That evidence was not challenged by the cross-examiner.
[38]
L said that she was simply unable to broach
her concerns with her mother because she did not know where to start.
Upon her return
to Cape Town L said she went through M’s phone
(evidently the red Nokia) and came across other text messages in
which M told
friends that she had lost her virginity. This distressed
L no end and when M came home from school that day L said that she
confronted
her daughter who readily admitted everything to her. L
then reported the matter to the police.
[39]
L confirmed to the court that she had seen
the three photographs of the appellant’s genitals on her
daughter’s phone.
She also testified that there were messages
between the appellant and M on that phone (presumably the Nokia)
which accordingly
dispelled any notion that the pictures had been
erroneously sent to the daughter rather than the mother.
[40]
After the matter had been reported to the
police, but before the arrest of the appellant, L said that she
received a telephone call
from the appellant during which he
initially denied any involvement with M. L said that she persisted
with the accusation against
him and eventually the appellant
acknowledged his culpability but pleaded for understanding for the
plight of his family saying
that he would never do such a thing
again. That evidence was not challenged either by the appellant.
[41]
L was
obviously conflicted between her affections for her daughter and her
lover and candidly admitted to the Regional Magistrate
that she had
considered not proceeding with the complaint
[15]
.
However, her ambivalence did not find favour with the investigating
officer who refused to consider withdrawal of the charges
and
threatened her with a charge of perjury. In the result the
prosecution went ahead.
[42]
The cross-examination of L was fairly
peripheral and inconsequential and very little of what she said was
placed in issue. During
her evidence it transpired that the
appellant’s wife had learnt about their affair during October
2011 and that she had demanded
an apology from the appellant and L.
Mutual undertakings of trust were thereafter given that the affair
had been terminated. That
notwithstanding, the affair continued apace
until about a week before the arrest of the appellant.
[43]
L’s cross-examination was interrupted
due to a lack of court time and it continued about a month later.
When L returned to
testify on 10 December 2014 she informed the
Presiding Magistrate that she had brought along with her the phone in
question with
the airtime sms still intact. While there was much
discussion about the sms, no copy thereof was actually handed in as
an exhibit.
In any event, the defence persisted in cross-examination
of L with the suggestion that the airtime sms was intended to be a
light-hearted
allusion to sexual contact with Tashriq, but L was
adamant that “
there’s no
third party involved with this SMS.”
[44]
During
the re-examination of L, the contents of the sms were read into the
record by the court
[16]
.
Counsel for the defence responded to this by suggesting to L that the
appellant’s cell phone then must have been used by
someone else
to send that message. This allegation was inconsistent with the
earlier allegation that an sms had indeed been sent
relating to a
message in which Tashriq was mentioned by name
[45]
Finally, L told the court that she had
viewed both the Blackberry and red Nokia phones and found nude
photographs of the appellant
on both handsets. Those that were on the
Nokia were password protected because they were filed under the MXit
program but the witness
said she was able to view them after her
daughter had opened the program for her. That evidence was not
challenged under cross
examination by the defence.
MEDICAL
EVIDENCE
[46]
At the close of the State case the defence
made application for the discharge of the appellant in terms of s174
of the CPA which
was correctly refused by the Regional Magistrate.
During his address in that application counsel for the defence drew
the court’s
attention to the fact that the State had presented
no medical evidence in support of the complainant’s
allegations. This
remark seems to have jolted the prosecutor into
action because upon refusal of the application for discharge, he
immediately requested
the court’s leave to hand in the
so-called “Form J 88” relating to a medical examination
of the complainant.
The prosecutor explained that with the
protraction of the case he had lost track of things and forgotten to
hand up the report,
which had been in the possession of the defence
all along. With the consent of the defence, the J88 was then placed
before the
court by agreement.
[47]
The medical report revealed an examination
conducted at 11h30 on 2 February 2012 at the GF Jooste Hospital in
Manenberg by a Dr
Narula. She described M as a 14 year old female of
normal build, who was 1,54m tall and weighed 45kg. There were no
complaints
of any particular concern other than chronic constipation.
The examination of M’s genitalia revealed a whitish discharge
from the vagina and an annular and irregular hymen with a series of
clefts therein. The doctor concluded that her findings were
“
compatible with (forcible)
vaginal penetration with a penis/object”
and
that “
definitive hymenal changes”
had been noted. In addition, the doctor
speculated that the scarring of M’s rectum was “
most
likely the result of severe constipation, however the possibility of
anal penetration with a penis object”
could
not be excluded.
[48]
In light of the absence of any allegations
by M of anal penetration, this possibility was correctly excluded by
the Regional Magistrate.
In the circumstances, it is apparent that
the allegations by M of consensual vaginal penetration are supported
by the medical evidence.
THE
DEFENCE CASE
[49]
The appellant testified in his own defence
and called as witnesses his daughter (to whom I shall refer as “K”)
and another
young woman (whom I shall call “T”), who
appears to have been in foster care at the appellant’s home in
2011/12
when she would have been around 18 years of age.
[50]
As already indicated the appellant’s
version of events was a bare denial of any intimacy with M but he
acknowledged a long-standing
adulterous relationship with L. The
appellant was at pains to attempt to demonstrate that there had been
no opportunity for him
to have travelled alone with M at any stage,
saying that one or more of his children was always around when M was
in his car. To
this end he adduced the evidence of K and T in an
attempt to provide corroboration for his version.
[51]
Much of the argument on the appeal before
us turned on the import of the airtime sms. While the appellant
originally sought to make
light of it, his attempt to ultimately
persuade the court
a quo
that
it was about the goings-on of Tashriq are difficult to accept. It is
important to bear in mind that this allegation was the
appellant’s
fall-back position when the message was eventually produced, his
original version having been a denial of the
communication and a
later version having sought to attribute it to an anonymous
unauthorized user of his phone. This important
piece of evidence
accordingly elicited various explanations from the appellant
demonstrating his mendacity.
[52]
Furthermore, under cross examination by the
prosecutor the appellant was shown to have been an inherently
dishonest person: not
only did he admittedly conceal his
long-standing affair with L from his wife, when his adultery was
eventually exposed he promised
to terminate it forthwith. Yet, this
undertaking was breached almost immediately as he and L continued to
see one another for several
more months until L, somewhat reluctantly
it must be said, terminated the affair upon discovering the
allegations regarding her
lover’s involvement with M.
[53]
When pressed under cross-examination to
offer an explanation as to why he considered that M should be
disbelieved in relation to
her allegations against him the appellant
suggested that her evidence was the product of a devious plot by L to
get back at him
for terminating their relationship. That explanation
poses a number of incongruities. Why, if the tryst had been
successfully resumed
after mutual assurances had been furnished to
the appellant’s wife regarding its termination in October 2011,
did the appellant
suddenly decide to call it off at the end of
January 2012? There was no obvious need to do so. And, why if L
wished to falsely
implicate the appellant, did she go to such
extraordinary ends to do so? Surely, an allegation of a single
incident of non-consensual,
vaginal penetration would have been much
more effective?
[54]
In
argument before us, counsel for the appellant, Mr. Liddell, submitted
that this approach was impermissible. Relying on
Maseti
[17]
,
a rape case in which the parties’ families were also known to
each other and in which the prosecutor extensively questioned
the
accused about the basis for a fabricated claim by the complainant,
Mr. Liddell submitted that the following
dictum
was
applicable to the present matter:
“
The
question requires the witness to express an opinion about the
subjective state of mind of another person. It follows that questions
directed at eliciting this type of evidence are impermissible and
should be disallowed.”
[55]
That
dictum
is in my view not applicable in the instant case. Here the appellant
had been asked in his evidence-in-chief to express a view
as to why L
and
M
had made the damaging claims against him
[18]
and had initially offered a garbled explanation to the effect that L
had probably wanted to save face amongst their friends and
family
when their liaison was ultimately exposed in January 2012. That
assertion rendered cross-examination on the point permissible
as the
following
dictum
in
Maseti
demonstrates.
“
[23] This
was not a case where the accused had, in evidence in chief, expressed
a belief that the case against him had been fabricated
for a
particular reason, the validity of which might have been the proper
subject of cross-examination.”
[56]
In the result, once questioned on his
suspicions, the appellant furnished various explanations, none of
which in my view held water.
Of particular relevance in this regard
are the following facts -
·
their affair had continued right up to the
day before his arrest, when the parties were intimate with each
other;
·
L had admittedly expressed ambivalence
about proceeding with the charges once laid and only felt compelled
to do so when the investigating
officer threatened her with perjury;
·
L continued to express affection for the
appellant after his arrest; and
·
She helped the appellant by driving his car
home from the police station after his arrest and delivering his
personal effects to
his wife.
[57]
Finally, the suggestion ultimately put up
by the appellant required a high degree of complicity and connivance
between mother and
daughter to create a version that would be
compelling and believable throughout. Such a scheme is invariably
fraught with the danger
of contradiction as the person required to
falsely implicate an accused “
loses
the plot
”, as it were. And yet in
this case we see anything but that: the evidence of M accords largely
with her statement to the
police and, as I have said, the
contradictions are not material in the circumstances.
[58]
Of
course, the appellant does not have to persuade the court that his
version is the unequivocal truth, just that it is reasonably
possibly
true in the circumstances
[19]
.
It is trite that the onus remains on the State to prove an accused’s
guilt beyond any reasonable doubt, and when the court
is asked to
make such a finding, it must step back and consider the appellant’s
version in the context of the entire factual
matrix before it
[20]
.
In the present case that requires consideration of the evidence of
the defence witnesses as also the application of caution towards
the
evidence of M in light of her age, immaturity, the fact that she was
a single witness as also consideration of the general
probabilities
of the matter.
“
The
proper approach in a case such as this is for the court to apply its
mind not only to the merits and demerits of the State and
defence
witnesses but also to the probabilities of the case.”
[21]
[59]
Turning to the defence witnesses, it must
be said that they add little to the piece. The assertion by K that
her father only ever
gave M a lift when she and her sisters were also
in the car does not exclude the fact that the 2 lovers may have
secretly travelled
together to partake in sexual activity. The very
fact that their tryst was secretive (notwithstanding some suspicion
on her part,
it was successfully concealed from L for quite some
time) implies that, by design, it was not intended that she should
have known
about it. In the result it seems to me that K’s
evidence does not take the defence case any further.
[60]
The evidence of T was presented by the
defence in an attempt to give the lie to the incident regarding the
television viewing. She
evidently recalled an incident years before
during which the appellant, his daughter K and the witness were
together in his bedroom
watching television. It must be said that the
incident was relatively innocuous in the circumstances – a
group of persons
who were comfortable in the company of each other
were watching television together in the comfort of the bedroom.
Significantly,
T places M in the room in close proximity to the
appellant and corroborates M insofar as the latter said she was
sitting next to
the bed on a “
bankie”.
Yet, the witness is certain that
nothing untoward occurred. This, in and of itself, is curious given
the passage of time and the
relatively innocuous nature of the event
described. Why, it must be asked, did she recollect the event at all?
[61]
But precisely because her vision of the
appellant’s hand was obscured by his raised knees under the
sheet, which created a
natural obstruction, she most probably did not
see what she was not supposed to see. According to M this was the
first incident
of sexual contact with the appellant: it really was
the commencement of his grooming of her for later penetration, and
would thus
have been conducted clandestinely. Little wonder then that
M did not notice anything out of the ordinary.
[62]
In the circumstances, I am not persuaded
that the evidence of the defence witnesses took the case any further.
At best for the appellant
the import of their evidence can be
described as neutral.
CAUTION
AND CORROBORATION
[63]
In light of the fact that M was a single
witness in relation to all the charges, and given that she was a 14
year old teenager at
the time, we are enjoined by s208 of the CPA to
consider her testimony cautiously, and if possible to seek
corroboration therefor
in other admissible evidence.
[64]
Given
that M was required to testify some 3 years after the events which
formed the basis of the charges, such contradictions as
exist (and,
as I have said, they are not particularly material) do not
necessarily enjoin the court to reject the witness’s
evidence
without more. While contradiction may sometimes be indicative of
error, not all error affects the credibility of a witness
and the
court will evaluate the evidence taking into account the nature of
such contradictions, the extent thereof and their bearing
on other
aspects of the witness’s evidence.
[22]
In doing so a court will have regard to the fact that, particularly
in the case of younger witnesses, contradiction may be indicative
of
“
imperfect
recollection, observation and reconstruction of an honest
witness”
[23]
.
[65]
I have already noted the positive
credibility finding of the Regional Magistrate, which we are bound to
respect. Moreover, the complainant’s
relative maturity for a
young woman of her age is readily apparent from the record.
Importantly, however, her version is corroborated
in a number of
respects. Firstly, there is the medical evidence which suggests that
consensual vaginal penetration was probable.
Further, there is the
evidence regarding the airtime sms. This not only corroborates M’s
evidence directly but strengthens
the probabilities in favour of the
State’s case and seriously dents the appellant’s
credibility. Also, the existence
of the photographs to which M
referred was positively confirmed by her mother.
[66]
And then there is L’s evidence
regarding the soiled handkerchief and M’s unusually flighty
behavior when it was probably
brought into the home, as also her
inquisitiveness regarding the possibility that the appellant had been
sterilized. Finally, there
is the unchallenged evidence of L that the
appellant was contrite after the event and his expression of concern
for the plight
of his wife and children. Importantly, there was no
suggestion by the defence that, at the time, the appellant
immediately denied
his involvement with M. Rather, as L testified
regarding their exchange on the way to the bus station, the appellant
appeared emotionless
and detached when she confronted him with her
daughter’s claims.
[67]
When all is said and done, I have little
doubt that the complainant was correctly found to be an honest
witness and that her evidence
met the requirements of s208 of the
CPA. The evidence in favour of the State’s case was, at the end
of the day, overwhelming
and persuasive. Against that, the
appellant’s bare denial simply did not measure up. Accordingly,
I am satisfied that the
appellant’s version was rejected as not
being reasonably possibly true in the circumstances.
[68]
In conclusion, I would like to express our
appreciation to Mr. Liddell for his continued assistance in the
matter. He was instructed
to argue the appeal and was responsible for
drawing the original heads of argument in 2016 but when his erstwhile
instructing attorney
died he was no longer on brief to argue the
matter. His willingness to represent the appellant at the hearing on
a
pro bono
basis
is in the best traditions of the legal profession.
CONCLUSION
[69]
In light of the aforegoing the appeal must
fail. The conviction of the appellant on counts 1, 2, 3, 4, 5 and 6
is confirmed.
__________________
GAMBLE,
J
I
Agree
____________________
FORTUIN, J
[1]
Referred to by the witnesses as a ‘
bankie’
[2]
The complainant used the vernacular term “
blow
job”
(and later she
spoke of a “
BJ”
)
to describe the act of fellatio.
[3]
“
He would keep on
asking me if I would do it again and then I just said yes.”
[4]
“
And then he sent me
an sms saying if you give me a blow job I'll buy you another R5
airtime."
[5]
“
1. The court found
her to be an honest and reliable witness who gave a coherent
recollection of her sexual encounters with the
appellant, had (sic)
she wanted to falsely implicate the appellant as a result of her
mother's influence suggested (sic) by the
defence, she would have
easily cried rape instead of consensual sexual encounters with an
elderly man."
[6]
The appellant was represented by different counsel on appeal.
[7]
“
Now the accused will
say that your mother was the main instigator to lay this charge
because she was under the impression that
the accused had a
relationship with you…”
[8]
“…
(H)e never
did anything alleged in this charge sheet, he disputes it. He never
had sex with you, you never gave him any blow jobs,
maybe something
happened that you got scared that your mother is going to find out
and then you complained. Because you did say
that if your mother
didn't find out about the sms or the messages on the phone you would
not have complained about anything.
What do you say about that?"
[9]
“
You see the message
wasn't that the accused asked you for a blow job or that he gave you
(sic) a blow job but it was more about
the person Tashriq that gave
you (sic) a blow job."
[10]
“
No,
on the message, he sent me the message (sic) Tashriq’s name
wasn’t mentioned in the message. I asked him to go
buy me R5
airtime because it was Friday and all the shops was (sic) closed and
he was on the road. Then he sent me a message
(sic) I'll buy you
another R5 if you give me a blow job."
[11]
“
I would say its [M]
chatting”.
[12]
“
She asked me….
is it true that he can't have kids and all this and I'm wondering
why is this child having this conversation
with me because it's just
like so out of the blue.…"
[13]
“…
And then
when I went to shower later in the evening the handkerchief was
nicely washed and hung up and all that and I'm thinking
to myself…
what 13 year-old throws up in a handkerchief and washes it out,
she's going to leave it there for me to wash
out, why would she be
washing it out. So that night I was very suspicious that something
happened in the car.."
[14]
“
I'm
having a conversation with him and he just looks at me like he's
half dead or something and he doesn't say yes, no, maybe,
sorry,
anything like that and that is it and we drive on."
[15]
“
I was like 50/50
whether to withdraw or not…"
[16]
“
Your airtime for BJ,
I will give you another R5”.
The
message was preceded by a reference number from the cell phone
service provider to enable M to download the airtime which
the
appellant had purchased for her. The sms was sent at 11h22 on 6
January 2012 – a Friday.
[17]
Maseti v
S
[2013]
ZASCA 160
(25 November 2013) at [22]
[18]
Do you know why the
complainant or her mother would encourage her daughter to make these
charges against you, this (sic) false
charges?.....Why would you
think that the daughter would lay these charges against you?”
[19]
R v Difford
1937
AD 370
at 373;
R v M
1946
AD 1023
at 1027;
S v Kubeka
1982 (1) SA 534
(A) at
537.
[20]
S v Hadebe
1997
(2) SACR 641
(SCA);
S v
Trainor
2003 (1) SACR 35
(SCA) at 40f.
[21]
S v
Singh
1975(1)
SA 227 (N) at 228G-H;
S
v Guess
1976(4) SA 715 (A) at 718H.
[22]
S v Mkohle
1990 (1) SACR 95
(A) at 98 f-g.
[23]
S v Oosthuizen
1982 (3) SA 571
(T) at 576 B-C.