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[2020] ZAWCHC 42
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M.G v S (A158/2019) [2020] ZAWCHC 42 (25 May 2020)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
Republic
of South Africa
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE
NO:
A158/2019
In
the matter between:
M
G APPELLANT
v
THE
STATE RESPONDENT
Court:
Justice E D Baartman
et
Justice
J Cloete
Heard:
22 May 2020
Delivered
electronically:
25 May 2020
JUDGMENT
CLOETE
J (BAARTMAN J CONCURRING)
:
[1]
On 27 July 2017 the appellant, who had
pleaded not guilty, was convicted as charged in the Paarl Regional
Court on 6 counts
of contravening the
Criminal Law (Sexual Offences
and Related Matters) Amendment Act 32 of 2007
. On 7 September
2018 he was sentenced to an effective 5 years imprisonment. He
appeals against conviction only, leave having
been granted on
petition on 4 February 2019.
[2]
The grounds of appeal are essentially that the
trial court failed to properly consider material discrepancies in the
evidence of
the complainant (a single witness) as well as
improbabilities in his version; erred in finding that it was
corroborated by the
other two State witnesses; and failed to properly
consider the evidence of the appellant and his two witnesses. It is
also submitted
that in any event counts 2, 3 and 4 amount to a
splitting of charges; the conviction on count 1 was not competent
because the State
failed to prove all the elements of that offence;
and counts 5 and 6 were not borne out by the complainant’s
testimony as
to when they were alleged to have occurred (there having
been no amendments made to these counts before judgment).
[3]
The charges faced by the appellant were not
exactly a model of clarity. I summarise them briefly:
3.1
Count 1
: rape
committed ‘
on or about February 2011’
at Muscadel
Street, Wellington, by coercing the 16-year-old complainant to
penetrate the appellant’s mouth with his penis
and inserting
his tongue into the complainant’s anus;
3.2
Count 2
:
masturbating in the complainant’s presence ‘
on or
about July 2010 at or near Wellington Secondary School’
;
3.3
Count 3
:
compelled sexual assault by inducing the complainant to masturbate
with the appellant also ‘
on or about July 2010 at or near’
the school, although the complainant was alleged to be a year older
than in February 2011;
3.4
Count 4
:
causing the complainant to watch the appellant self-masturbate ‘
on
or about July 2010 at or near Wellington’
when the
complainant was 16 years old;
3.5
Count 5
:
sexual exploitation of the complainant ‘
on or about July
2010 at or near Muscadel Street’
by forcing him to put his
penis into the appellant’s mouth as reward for assisting him
with schoolwork; and
3.6
Count 6
:
exposing the complainant to pornographic material ‘
on or
about February 2011 at or near Muscadel Street’
.
[4]
From the evidence adduced during the trial it
became clear that the State’s case was based, firstly, on one
incident in a
classroom at the school in the second half of July 2010
and secondly, a series of incidents at the appellant’s home in
Muscadel
Street spanning the period August 2010 until July 2011.
[5]
The facts which became common cause, or were not
seriously disputed by either the State or defence, are as follows.
The appellant
was appointed as a teacher at the school with effect
from 13 July 2010. His father passed away two days later on 15 July
2010
and he left the school early that morning, only returning to
resume his duties on 26 July 2010. The complainant’
s 16
th
birthday was on 19 July 2010.
[6]
The complainant and the appellant first met in
the latter’s classroom, a partitioned section of a cellar
usually used as a
gym, which the appellant was only allocated some
time after he returned to the school on 26 July 2010. During
their first
encounter, the appellant told the complainant and his two
friends that he offered extra lessons to assist pupils with their
studies.
[7]
The complainant approached the appellant
thereafter during a second school break, and the appellant arranged
to meet him after school
in the classroom of another teacher, Ms H,
which was a more suitable venue. According to the complainant this
occurred within
a day or two after his birthday. This could not have
been correct since the appellant was not even at the school at the
time. According
to the appellant it was only later in the year,
around October 2010. However, that the first “lesson”
took place in
that classroom was not in dispute.
[8]
Subsequently the complainant, at the appellant’s
invitation, attended regular extra lessons at the appellant’s
home
which he shared with his closest friend, another teacher, Mr J
R. Although the complainant denied this, it was established on the
evidence that when these lessons took place it was not only the
complainant, the appellant and R who were present. There were about
4
to 7 other children who regularly also attended these lessons, and
their tasks were divided between the appellant and R. Some
of the
children were tutored in the open plan living cum kitchen area and
others on the outside stoep; only those children who
required access
to a computer did their tasks in the bedrooms of the appellant and R.
[9]
Also present in the house were the appellant’s
mother, who came to live with them after his father’s death and
who would
usually be sitting in the open plan area (she could not
drive and hardly knew anyone in Wellington); the domestic assistant,
Ms M
M who worked from 08h00 to 17h00 at least 3 days per week;
and for a period of about a month (in October 2010) the appellant’s
sister, Marina, together with her baby.
[10]
The evidence also established that as time
progressed the complainant’s behaviour deteriorated
substantially. Whereas initially
he was quiet and respectful, he
became demanding, impertinent and aggressive. Although his school
marks improved by the end of
2010, in the first quarter of 2011 he
abandoned school, was involved in a stabbing incident, and had to be
persuaded by another
teacher, a Mr A (with whom he was
particularly close) to return.
[11]
On 25 August 2011 the complainant reported
to his class teacher, Ms B, her husband and Mr A that he had
been coerced by
the appellant during the lessons at his home to
masturbate with him, view pornography and ejaculate into his mouth.
This was in
turn confirmed by the complainant to the headmaster, a
Mr C, and Ms Feroza Thompson, a social worker employed by
the
Western Cape Education Department who was notified by the
headmaster after the report was made. This resulted in the
appellant’s
arrest, his suspension and his dismissal after a
departmental disciplinary hearing in which the complainant testified
in September
2011.
[12]
Before turning to the substance of this appeal,
it must be stated that there was no evidence adduced by the State
that the appellant
had inserted his tongue into the complainant’s
anus, and no more need be said about it.
[13]
As previously stated the first incident is
alleged to have occurred in Ms H’ classroom. The
appellant’s evidence,
which was not challenged by the State,
was that this classroom was one of the most visible in the block. It
had large windows facing
onto an open quad and sports field,
affording passers by a clear and unobstructed view into the
classroom. The appellant did not
have a key to the classroom (because
the classroom was not allocated to him) and relied on one of two
caretakers/cleaners to unlock
it for him. The door to the classroom
opened onto a corridor used by pupils, staff and others.
[14]
The complainant himself accepted that teachers,
some pupils and non-professional staff would usually be on the
premises for about
an hour after the end of a school day. He had
arrived at the classroom immediately after school ended. He did not
suggest that
none of these people were on the premises when the
incident is alleged to have occurred. The appellant’s testimony
that sport
was being played on the field adjoining the classroom and
quad similarly went unchallenged.
[15]
In his evidence in chief it was the complainant’s
version that upon entering the classroom he sat on one of the
benches. The
appellant told him that in order to help him he needed
to trust him, which required them to masturbate in the presence of
each
other. The complainant was to undo his trouser zip, take out his
penis and masturbate. The complainant refused, but the appellant
told
him it was the manly thing to do and that every man did this. Because
the complainant felt that he did not have much of a
choice, since he
needed the appellant’s help, he did as instructed while the
appellant did the same as they faced each other.
[16]
When they finished the appellant told him that
they would not do the homework task (a history project) at the school
after all,
but rather at the appellant’s home where there was a
computer, so that the work could be downloaded onto a compact disk
and
the complainant would achieve a higher mark. This would happen in
a few days and the appellant would tell him when. The complainant
then took his school bag and left the classroom.
[17]
During his cross-examination material omissions
and contradictions emerged, which boiled down to five different
versions of the
circumstances in which the incident in the classroom
was alleged to have taken place. First, the complainant testified
that the
classroom door was open when he arrived, and made no mention
of the door being closed or locked at any stage during the incident.
Second, he stated that after the appellant coerced him to masturbate
with him, the latter closed and locked the door before the
masturbation took place.
[18]
Third, the complainant stated that the appellant
closed and locked the door immediately after the complainant entered
and before
any discussion took place. Fourth, the complainant stated
that the appellant only closed and locked the door after one of the
caretakers/cleaners,
a Mr W, was seen twice in the corridor across
the quad from the classroom onto which its windows faced, because W
was able to see
into the classroom from that vantage point. No
mention was however made of the stage at which this occurred, and no
explanation
was given by the complainant for why locking the door on
the opposite side of the classroom would, in these circumstances,
have
obscured W’ visibility.
[19]
Sixth, the complainant had conceded in the
disciplinary proceedings (held in September 2011, when the events
were presumably still
fresh in his mind) that W was in fact present
in the corridor onto which the classroom door opened (and not across
the quad). He
also conceded in those proceedings that W twice stood
at the open door to the classroom, asking how long they would be
(because
he wanted to clean and lock up), but had maintained this
occurred before the appellant closed and locked the door and before
he
initiated the masturbation discussion. It was not suggested during
the trial that the door locked with anything other than a key
(i.e. that it had a yale lock or similar which would enable it
to lock without one).
[20]
There were other contradictions in the
complainant’s testimony as well. These included where and how
he met R for the first
time. The complainant also initially claimed
that there was no discussion about the history project itself in the
classroom on
that day. After being confronted with his testimony in
the earlier disciplinary hearing about W’ presence at the open
entrance
to the classroom, he conceded that any passer by would
easily have been able to see what was going on inside, but for the
first
time claimed that when W initially appeared, he and the
appellant were seated at a desk discussing what he needed to do for
his
history project.
[21]
Although the complainant was subjected to lengthy
cross-examination over an unduly extended period (which was peppered
by delays
not of his own making) from 2013 to 2015, and it can
reasonably be accepted that with the passage of time his recollection
would
not have been as clear, the material discrepancies on crucial
aspects of his version cannot simply be wished away on that basis.
[22]
I thus hold a different view to that of the trial
court which found that, despite the passage of time, the
complainant’s version
was consistent throughout in all material
respects. Moreover, the testimony of the other two State witnesses,
Mr B and Ms Thompson,
did not in fact corroborate the
complainant’s version that the first incident occurred in a
classroom at the school, because
on their testimony the complainant
did not report this to either of them. Both of these witnesses were
patently honest, credible
and reliable and there is no reason to
disbelieve them.
[23]
The record reflects that the State led the
complainant’s testimony in a “broad brush” manner.
It became clear
during the course of the trial that the prosecutor
had made no attempt to either familiarise herself with the transcript
of the
disciplinary hearing, or consult with the complainant about it
before handing him over for cross-examination. It seems that the
complainant was ill-prepared, and one would have expected more of the
prosecutor, who should at least have ensured that all material
aspects of the complainant’s version were covered during his
evidence in chief. The result was that the State’s case
in
respect of the first incident was ultimately so weakened that, in the
face of the appellant’s denial and his subsequent
unchallenged
testimony, it is not possible to find that the State discharged its
onus of proof beyond a reasonable doubt. The appellant
is thus
entitled to an acquittal on counts 2, 3 and 4, and it is not
necessary to consider whether these amounted to a splitting
(or
duplication) of charges.
[24]
Turning now to the second series of incidents
which allegedly occurred at the appellant’s home, i.e. those
pertaining
to counts 1, 5 and 6. It is convenient to commence with
count 5, in which it was alleged (as previously stated) that ‘
on
or about’
July 2010 the appellant
sexually exploited the complainant by forcing him to put his penis
into the appellant’s mouth as
reward for assisting him with
schoolwork.
[25]
It was submitted on the appellant’s behalf
that there was no evidence by the complainant that such an event
occurred in and
during July 2010 and that, absent an amendment to
this charge before judgment in the trial court, it mistakenly
convicted him on
this count.
[26]
In my view the reference in the charge sheet to
‘
on or about July 2010 at or near
Muscadel Street’
taken together with
the complainant’s testimony that he commenced with lessons at
the appellant’s home in August 2010,
was sufficiently broadly
worded for the appellant to be aware, by the time of conclusion of
the evidence, what period the State
relied upon.
[27]
However the difficulty faced by the State is that
it was never the complainant’s version that in August 2010 he
was forced
to put his penis into the appellant’s mouth. His
testimony was rather, essentially, a repetition of what allegedly
occurred
previously in the classroom, with the addition that he was
also shown pornographic material which the appellant downloaded on
his
computer in his bedroom in order to assist the complainant to
ejaculate. It was further the complainant’s version that this
pattern was repeated on each occasion he went to the appellant’s
home, which was three times per month, until he completed
his school
exams at the end of 2010.
[28]
Accordingly there was no evidence before the
trial court to prove count 5 and to the extent that the learned
magistrate assumed
otherwise in her judgment, she erred in this
regard. It follows that the appellant must also be acquitted on count
5.
[29]
That leaves counts 1 and 6 (excluding that
portion of count 1 pertaining to the appellant having allegedly
inserted his tongue into
the complainant’s anus). As previously
mentioned the period specified was ‘
on
or about February 2011’
and the acts
complained of were the coercion of the complainant to penetrate the
appellant’s mouth with his penis and exposing
him to
pornographic material.
[30]
It was the complainant’s testimony that
after he returned for extra lessons at the appellant’s home in
February 2011
the latter took matters a step further. He coerced the
complainant to put his penis into the appellant’s mouth as he
ejaculated.
This occurred, again three times a month, whenever the
complainant attended these lessons at the appellant’s home, and
affected
him so badly that he dropped out of school until Mr A
persuaded him to return. It was only later that year, after the
complainant
had a spiritual dream, that he summoned up the courage to
report the abuse to the fellow teachers.
[31]
The timeline proffered by the complainant is
supported by the common cause fact that around March or April 2011 Mr
A, seemingly
oblivious to the real reason why the complainant was
struggling, approached the appellant and R to request that they allow
him
to reside with them (they refused). It would appear that Mr A
was under the impression, based on the excuse given to him by
the
complainant, that the latter’s home environment had
deteriorated to the point that he was not coping.
[32]
What does not make sense is the complainant’s
testimony that he continued to be abused by the appellant until about
the end
of July 2011, because it was not in dispute that following
the stabbing incident the complainant did not attend school during
the
second term. Again criticism must be levelled at the prosecutor
who failed to canvas this properly with the complainant during his
evidence in chief, and thus left him exposed to doubt later being
cast on his credibility. Moreover the State failed to call Mr A
who, given his close relationship with the complainant, would most
likely have been able to shed light on whether he resumed his
extra
lessons after returning to school in the third term.
[33]
That being said, in my view corroboration for the
abuse itself can nonetheless be found in the complainant’s
reports to Mr
and Mrs B, Mr A, the headmaster Mr C and Ms
Thompson; in the undisputed substantial deterioration in the
complainant’s
behaviour; in him leaving the school at the end
of 2011 despite the appellant having already been suspended from
teaching, if not
dismissed (once the abuse was exposed); and the
lasting effect of the abuse on the complainant some years later when
he testified,
which was pertinently noted by the trial court in its
judgment. I agree with the learned magistrate that it is highly
improbable
that, were this all a figment of the complainant’s
imagination, he would have subjected himself to the ordeal of
testifying
in court. I also agree with the reasoning of the trial
court that given that the abuse commenced when the complainant was
only
16 years old and taking into account his straitened personal
circumstances at the time, he was easily susceptible to being groomed
and abused.
[34]
Against this must be weighed the version of the
appellant together with the evidence of his witnesses. In a nutshell
the appellant’s
defence was an alibi in the form of others who
were present in the house on the occasions when the complainant
attended his extra
lessons. Both Mr R and Ms M were adamant that to
the best of their knowledge the appellant would simply not have had
the opportunity
to abuse the complainant in the manner alleged, given
not only the presence of others but also the layout of the house and
the
fact that there were no keys to the inside doors including the
appellant’s bedroom (however, as I understood the complainant’s
evidence, he did not testify that the door was locked but only that
it was closed during these incidents).
[35]
According to both the appellant and R the
complainant turned on them when they attempted to cut ties with him
at the end of 2010
as a result of his increasingly poor behaviour,
and this in all probability was what motivated the complainant to
falsely accuse
the appellant. According to the appellant the tipping
point came in July 2011 when he refused to buy the complainant a pair
of
rugby boots. During an argument on the school premises the
complainant threatened to falsely accuse him of sexual molestation if
he did not do so, and it was after the appellant again refused that
the report was made by the complainant and charges were laid.
[36]
There are certain troubling aspects about this
version. While conceding that the complainant at times worked on the
computer in
his bedroom, there were various claims made by the
appellant that were never put to the complainant when he testified.
They were
as follows.
[37]
First, that when the complainant worked on the
computer in the appellant’s bedroom his sister (while she
stayed there) as
well as Ms M would enter to offer him refreshments
(Ms M made no mention of this in her testimony either). Second, that
it was
R and not the appellant who set up the history project program
for the complainant on the appellant’s computer, and assisted
the complainant on the first occasion when he was having difficulty
with that program. Third, that by the time the complainant
started
his extra lessons at the house the appellant’s mother had
already moved into R’s bedroom across the passage
from the
appellant’s, while R shared the latter’s bedroom
(although he left his computer and personal effects in his
own
bedroom). Fourth, that upon completion of the history project it was
no longer necessary for the complainant to use the computer
in the
appellant’s bedroom (and thus for months on end all other
lessons took place elsewhere on the premises).
[38]
Fifth, and significantly, the appellant claimed
that he recorded his July 2011 argument with the complainant (and
thus by necessary
implication the threat to falsely accuse him) on
his cell phone. He also maintained that immediately after that
argument he approached
both C and R where they were standing smoking
on the school premises and reported the argument to them. Although he
made no mention
of C having moved away, it was also the appellant’s
claim that he played this recording there and then to R. The fate of
that recording (crucial evidence) was not disclosed by the appellant.
Inexplicably it was not explored by the State in cross-examination.
R
made no mention of it when he testified. Although the appellant
maintained that he was deeply shaken by the argument, according
to R
the appellant only appeared mildly concerned when he reported this to
him. C was not called by the appellant to corroborate
what was
allegedly conveyed to him; but in any event it is most unlikely that
he would not have recalled this when the complainant
made his first
report about a month later in August 2011.
[39]
In addition, other aspects of the appellant’s
version made no sense. According to him, by the time they testified,
he and
R had not been on speaking terms for the past two years due to
a family fallout. According to R, they were still friends, although
he implied that, given the pending criminal proceedings, they had not
been able to communicate with each other as much as they
had in the
past. What is not in dispute is that prior to the appellant’s
arrest in August 2011 he and R were best friends
who spent almost all
of their time together. It was the version of both the appellant and
R that his bedroom window faced onto
the stoep of the house and that,
if the curtains had been closed during these incidents as the
complainant alleged, this would
immediately have been noticed by
those on the stoep. However, according to Ms M, the appellant’s
bedroom window was
not visible from the stoep. In any event, and as a
matter of logic, it is unlikely, as claimed by the appellant, R and
Ms M,
that the appellant was never out of their sight.
[40]
He was in a position of trust and, if one accepts
that neither R nor Ms M had any reason to suspect him of
untoward behaviour,
they would similarly have had no cause to monitor
his movements. Further, and if the appellant and R are to be
believed, if the
complainant had turned on them at the end of 2010,
the unanswered question is why he waited for six months until a spat
over a
pair of rugby boots to falsely accuse the appellant, and the
appellant only.
[41]
Having regard to the aforegoing, and despite the
manner in which the State presented its case, I am nonetheless
persuaded that the
appellant’s guilt on counts 1 and 6 was
proven beyond reasonable doubt. In this regard, there is no merit in
the complaint
that the State failed to prove the elements of the
offence of rape (count 1) when regard is had to
s 3
of the Act
under which the appellant was charged, as read with the definition of
‘
sexual penetration’
in
s 1
thereof. Moreover, there is no basis to interfere in the
sentences imposed on counts 1 and 6 as a consequence of the State’s
failure to prove the other counts beyond reasonable doubt.
[42]
The following order is made:
1.
The appeal against conviction succeeds to
the extent set out below.
2.
The appellant’s convictions on
counts 2, 3, 4 and 5 and the resultant sentences imposed are set
aside.
3.
The appellant’s convictions in
respect of counts 1 and 6 are upheld and the sentences imposed in
respect of such counts are
confirmed, namely:
Count 1:
Contravening
s 3
of the
Criminal Law (Sexual Offences and Related
Matters) Amendment Act 32 of 2007
Ten (10) years
imprisonment of which 5 years is suspended for 5 years on condition
that the accused is not convicted of contravening
s 3
or
s 5(1)
or
s
55
of Act 32/07 committed during the period of suspension.
Count 6:
Contravening
s 19(a)
of
s 3
of the
Criminal Law (Sexual Offences and
Related Matters) Amendment Act 32 of 2007
Three (3) years
imprisonment wholly suspended for a period of 5 years on condition
that the accused is not convicted of contravening
s 19
of Act 32
of 2007 committed during the period of suspension.
In addition
the accused’s personal particulars be added
both in the National Register for Sexual Offenders in terms of s
50(2) of Act
32 of 2007 and in terms of s 114(1)(b) read with s 120
of the Children’s Act 38 of 2005 and s 103(1) of Act 60 of
2000. The
accused is declared unfit to possess a firearm.
________________
J I CLOETE
________________
E D BAARTMAN
For
the appellant
:
Adv Christo
Bisschoff
(4260949) (
advg1@capebar.co.za
)
Instructed
by: M Van der Scholtz Attorneys, M Beukes, 5921930,
vdscholtz@mweb.co.za
;
For
the respondent
:
Adv E
Kortje
(
ekortje@npa.gov.za
;)
(4877261, 0848749137)
Instructed
by: State Attorneys