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[2020] ZAWCHC 67
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C.B v S (A249/2019) [2020] ZAWCHC 67 (4 June 2020)
SAFLII
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Republic of South Africa
IN THE HIGH COURT
OF SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
Case number:
A249/2019
Before: The Hon. Mr
Justice Bozalek
The
Hon. Ms Acting Justice Gibson
Hearing: 7 February
2020
Judgment:
4 June 2020
In
the matter between:
CB
Appellant
and
THE
STATE
Respondent
JUDGMENT
BOZALEK J
(GIBSON AJ concurring)
[1]
The appellant
appeared before the Parow Regional Court on charges of rape and
sexual assault. He pleaded not guilty to the charges,
chose to give
no plea explanation, and was legally represented throughout his
trial. On 14 March 2019 the appellant was convicted
on both counts
and sentenced to 18 years’ imprisonment. With the leave of the
magistrate, he now appeals against conviction
only.
[2]
On count 1 it was
alleged that between 2013 and October 2014, at Delft, the appellant
had committed an act of sexual penetration
(contravening sec 3 of the
Criminal Law Amendment Act (Sexual Offences and Related Matters), 32
of 2007) by penetrating the vagina
of his minor step-daughter with
his penis ‘
on
several occasions’
without her consent.
[3]
On count 2 it was
alleged that over the same period the appellant had sexually violated
the same complainant (thereby contravening
sec 5(1) of the Act) by
touching her vagina again ‘
on
several occasions’
.
[4]
To prove its case
the State led the evidence of five witnesses. These were the
complainant herself, whom I shall refer to as EB
or as the
complainant, her maternal grandmother, Mrs HB, to whom the first
report was allegedly made, Constable Vanessa Jeffrey,
who interviewed
the complainant after the report was made, Ms Nomxolisi Tsatsi, a
Provincial social worker who first dealt with
the case and Constable
Makhi Sukaze, the investigating officer. By agreement a J88 medical
examination form was admitted as an
exhibit, as well as the report of
a social worker, Mrs A Lakey, who was employed by SAPS Forensics
Social Works Services. The primary
purpose of that report was to
support an application for the complainant to testify in camera with
the assistance of an intermediary
in terms of sec 170 A(1) of the
Criminal Procedure Act, 51 of 1977 (the CPA).
[5]
The appellant
testified on his own behalf and called his wife, (Mrs B), EB’s
mother, as a witness.
Overview
[6]
EB’s
mother married the appellant in November 2012, when EB, who was born
on 11 July 2007, was four years old. EB’s
biological father
appears to have been absent from her life from the outset. The
appellant and his wife had their own son, (C),
who was one year old
when they married. The family moved into a house in Delft where each
child had its own bedroom. (Mrs B) worked
dayshift whilst the
appellant worked alternate weeks on nightshift and dayshift. When he
worked dayshift the two children would
go to their grandparents after
school and crèche as the case might be. When the appellant
worked nightshift he looked after
the children during the afternoons
when they returned from school and crèche. It was common cause
that as a result of these
arrangements the appellant was often at
home during the day, alone with EB and (C).
[7]
Over
the period covered by the charges i.e. 2013 and 2014, EB was
respectively 5 and 6 years of age, whilst (C) would have been
only 2
and 3 years, respectively. It eventually became common cause that EB
was in grade R in 2013 and in grade 1 in 2014.
[8]
EB
appears to have had a close relationship with her grandmother, Mrs
HB, who would often look after her at her nearby house. EB
would also
spend weekends sleeping over at her grandmother’s house.
[9]
On
an unspecified occasion during 2013 while EB was bathing at Mrs HB’s
house, the latter noted that the child’s vagina
was sore but
upon being asked the child would not explain the cause. The same
thing happened in 2014 and, on that occasion, after
being pressed by
Mrs HB, EB eventually disclosed that the appellant had been sexually
molesting her but begged Mrs HB not to tell
anyone because the
appellant had threatened to hit her. Mrs HB was shocked, confused and
disbelieving and took no further steps.
This disclosure took place
‘
some
weeks’
before 24 September 2014. On or about that date Mrs HB went to the
appellant’s house sometime after 11am to collect EB and
take
her to the public library. She knocked on the door for a long time
before it was finally opened by the appellant in circumstances
which
disturbed her. Inside she found EB in bed under her duvet looking
nervous. When Mrs HB pulled down the duvet she found that
EB’s
pyjamas were half way down to her knees although she was still
wearing her panties. She took EB from her home and later
when she
pressed her for an explanation, the child told her that the appellant
had again been molesting her. Once again Mrs HB
took no action
although she remained deeply troubled by what she had heard and
witnessed.
[10]
Not
long afterwards, around mid-October 2014, EB contracted mumps and was
recuperating at her grandmother’s house. Mrs HB
received a call
from her daughter saying that the appellant would be taking leave so
that he could look after EB. Thoroughly alarmed,
Mrs HB decided there
and then to take the child to social workers in Delft where she
explained matters to a Ms Tsatsi. EB advised
Ms Tsatsi in an
interview that she was being molested by the appellant. The police
were then immediately brought into the matter
and EB was taken to
Karl Bremer hospital where she was medically examined. She was
reluctant to talk to the investigating officer,
Constable Sukaze, who
arranged for her to be interviewed by female Constable Jeffrey. EB
also told Constable Jeffrey that she was
being molested by her
step-father.
[11]
That
same evening Mrs HB called her daughter and advised her of EB’s
allegations against the appellant. Things moved very
quickly from
this point on with EB being removed from the custody of her mother
and step-father (the appellant) and placed with
Mrs HB, with whom she
has lived ever since. Not long afterwards the appellant’s son,
(C), was also removed and placed with
Mrs HB. Constable Sukaze, Ms
Tsatsi and Constable Jeffrey largely confirmed Mrs HB’s
evidence insofar as they were involved.
[12]
The
appellant vehemently denied that he had ever sexually molested or
interfered with EB stating that he had always treated her
as his own
child. He testified further that prior to his arrest he had enjoyed a
good relationship with EB and her grandmother.
He could offer no
explanation as to why EB would make false allegations of molestation
against him. In her testimony the appellant’s
wife, (Mrs B),
made it clear that she had never believed that EB had been molested
by the appellant. She confirmed that there hitherto
had been a very
good relationship between EB and the appellant and that she had been
shocked when her mother had advised her of
EB’s allegations on
13 October 2014. She testified that the following day, just before
the appellant was arrested, she had
been told by Constable Jeffrey
that EB had recanted her evidence and said that the appellant had not
molested her. (Mrs B) further
testified that Constable Jeffrey had
told her on the same occasion that EB had told Jeffrey she had been
raped by an unknown person
in a backyard after returning from school.
The Court’s
findings
[13]
In
convicting the appellant, the magistrate found that it had not been
placed in dispute that the complainant had been raped nor
that she
had the injuries as recorded on the J88 form. She recognised that the
complainant was a single witness as regards the
alleged penetrations
and sexual assaults and accordingly that her evidence had to be
satisfactory in all material respects. The
magistrate found that the
complainant had given a meaningful and chronological account of the
entire sequence of events and had
not contradicted herself. She found
further that there were guarantees for the reliability of the
complainant’s version,
one being the first report made to Mrs
HB. The nature of that report was such that it demonstrated the
consistency of the version
given by EB and as such gave credence to
it. A further guarantee for the reliability of EB’s evidence
was the medical evidence.
[14]
The
magistrate noted that the appellant’s version was a general
denial. She reasoned that EB could not have fabricated the
allegations of molestation because the medical evidence revealed that
there had indeed been injuries. She found that (Mrs B) had
not made a
good impression as a witness, observing that her attitude was such
that it was quite understandable why her daughter
had not confided in
her regarding the molestation. The magistrate concluded that the
appellant’s version was nonsensical
(
onsinnig’
)
and that the State had proved its case beyond any reasonable doubt.
Grounds of
appeal
[15]
The
magistrate’s findings were strenuously contested on appeal. The
main ground of appeal relied on was that the magistrate
had
misdirected herself in failing to apply the necessary caution in her
evaluation of the complainant’s evidence. It was
further
contended that there had been no corroboration of EB’s evidence
and that the magistrate had erred in failing to draw
a negative
inference from the contradictions between her evidence and that of
her grandmother in relation to material factual issues.
A further
ground was that the Court had erred in not finding that the State’s
version of events was improbable especially
in the light of EB’s
unclear and unsatisfactory recollection of events. Yet another ground
was that the magistrate had also
erred in accepting Mrs HB’s
evidence as corroboration for that of EB, particularly in the light
of the former’s
failure to report the incident at the first
available opportunity.
[16]
It
was further contended that the medical report had not supported the
complainant’s evidence, particularly inasmuch as it
lacked any
indication of ‘
more
serious, detailed and fresh injuries’
.
It was argued that the magistrate had erred in rejecting the
appellant’s version as ‘
nonsensical’
and in drawing adverse inferences against the appellant for not being
able to offer any explanation as to why EB might fabricate
the
rape/molestation allegations against him. The appellant’s legal
representative also criticised the magistrate’s
judgment for
its failure to deal with many inconsistencies and improbabilities in
the version presented by the State, in incorrectly
burdening the
appellant with an onus of proof, in relying on demeanour findings in
relation to (Mrs B) and in paying mere lip service
to the rule
dealing with the cautionary approach to the evidence of single
witness and a child. Generally, it was contended, the
magistrate had
adopted a piecemeal approach to the evaluation of the evidence.
[17]
A
number of the grounds of appeal were based on alleged inadequate
legal representation by the appellant’s initial legal
representative. It was alleged that the documentary evidence had been
handed in by agreement without proper consultation with the
appellant
and reliance was placed on the legal representative’s alleged
failure to put the appellant’s and his witness’
version
to the complainant and other state witnesses during
cross-examination. The nett effect, it was averred, was that the
defence
of the appellant had been improper, ineffective and
incompetent thus rendering his trial unfair.
General
approach
[18]
Cases
involving the alleged sexual molestation of minor children by close
family members often present considerable difficulties
for the
judicial system. The complainant is a child, in many cases of tender
years, testifying against a family member, often a
father or
step-father. The allegations frequently surface long after the
alleged molestation has commenced with the result that
the still
youthful witness is giving evidence as to events which took place
years previously. There is generally a dearth of evidence
with the
complainant being, in most instances, a single witness to events
which took place in secret. Where there is medical evidence
it is
seldom conclusive since it generally does not of itself indicate
either the identity of the molester or precisely what caused
the
injuries. On top of all of this the child is often giving evidence in
a situation of fraught family relationships. Should the
child
complainant’s evidence be accepted, lengthy imprisonment can be
imposed on the offender, and families and marriages
can be broken up.
It is for these and other reasons that our courts have repeatedly
emphasised the need for such cases to be handled
thoroughly and
sensitively by all involved. Thus it was that in
S
v Vilakazi
[1]
,
Nugent JA observed as follows:
‘
The
prosecution of rape presents peculiar difficulties that always call
for the greatest care to be taken, and even more so where
the
complainant is young. From prosecutors it calls for thoughtful
preparation, patient and sensitive presentation of all the available
evidence, and meticulous attention to detail. From judicial officers
who try such cases it calls for accurate understanding and
careful
analysis of all the evidence. For it is in the nature of such cases
that the available evidence is often scant and many
prosecutions fail
for that reason alone. In those circumstances each detail can be
vitally important.’
[19]
Before
dealing with the appeal grounds and criticisms in greater detail it
is appropriate to set out the general principles relating
to onus and
the evaluation of the evidence in such criminal matters, in
particular those involving a very young single witness.
[20]
Notwithstanding
the difficulties presented by cases involving sexual molestation of
minors, and the outrage which they can generate,
it bears emphasis
that the onus of proof which the State must discharge remains the
same as in any other criminal prosecution.
In
S
v DJ
[2]
, Binns-Ward J stated as
follows in this regard:
‘
There
is no basis in principle to attach a lower standard of proof or a
less exacting assessment of the evidence in a case in which
a child
is the complainant than in any other criminal case. To do so would be
to expose accused persons in cases in which the complainants
are
juveniles to a greater chance of unjust conviction than persons in
cases in which the complainants are adults. There can be
no warrant
for such a regime.’
[21]
This
principle was most recently affirmed in the majority judgment of the
Supreme Court of Appeal in
Y
v S
[3]
,
also a matter involving the sexual assault and rape of a child
complainant. In that matter there were multiple contradictions
and
inconsistencies in the complainant’s evidence and the issue was
whether the evidence was sufficient to prove the offences
beyond a
reasonable doubt. The majority reaffirmed the need for a careful and
sensitive approach to such cases and for technical
proficiency on the
part of the State. It reaffirmed, furthermore, that there was no
cautionary rule applicable to sexual assault
cases but that the
evidence of a child witness had to be approached with caution. It
referred in this regard to
Woji
v Santam Insurance Company Ltd
[4]
,
where the Court stated that the question which the trial court must
ask itself is whether the witness’ evidence is trustworthy
and
further that trustworthiness depends on factors such as ‘
the
child’s power of observation, their power of recollection and
their power of narration on the specific matter to be testified.
In
each instance the capacity of the particular child is to be
investigated. Their capacity of observation will depend on whether
they appear intelligent enough to observe. Whether they have the
capacity of recollection will depend again on whether they have
sufficient years of discretion to remember what occurs while the
capacity of narration or communication raises the question whether
the child has the capacity to understand the questions put, and to
frame and express intelligent answers. There are other factors
as
well which the court will take into account in assessing the child’s
trustworthiness in the witness-box. Do they appear
to be honest –
is there a consciousness of the duty to speak the truth?’.
[5]
[22]
In
terms of the provisions of sec 208 of the CPA, an accused can be
convicted of any crime on the single evidence of a competent
witness.
Although a cautionary rule applies to the evaluation of single
witnesses, as was stated in
S
v Sauls and Others
[6]
‘… the single witness must still be credible, but there
are, as Wigmore points out, “indefinite degrees in this
character we call credibility”
.
There
is no rule of thumb test or formula to apply when it comes to a
consideration of the credibility of the single witness (see
the
remarks of Rumpff JA in S v Webber
1971 (3) SA 754
(A) at 758). The
trial judge will weigh his evidence, will consider its merits and
demerits and having done so, will decide whether
it is trustworthy
and whether, despite the fact that there are shortcomings or defects
or contradictions in the testimony, he is
satisfied that the truth
has been told.’
[23]
The
complainant was a single witness in respect of the charges and
therefore her evidence had to be approached with caution. When
she
testified she was 10 years of age and was testifying about events
which for the most part happened when she was 5 or 6 years
of
age. EB’s youth was therefore another reason why EB’s
evidence had to be approached with a heightened sense of caution.
As
was stated by Schreiner JA in
Rex
v Manda
[7]
with regard to the evidence
of children:
‘…
the
dangers inherent in reliance upon the uncorroborated evidence of a
young child must not be underrated. The imaginativeness and
suggestibility of children are only two of a number of elements that
require their evidence to be scrutinised with care amounting,
perhaps, to suspicion. … The best indication that there was
proper appreciation of the risks is naturally to be found in
the
reasons furnished by the trial Court.’
[24]
As
regards the question of onus, and no less in the case where the
accused’s defence is a denial and where the charges relate
to
the alleged sexual molestation of a minor within the accused’s
family, it is self-evident that the State bears the onus
to prove its
case against the accused beyond reasonable doubt and that there rests
no obligation upon an accused person ‘
to
convince the court’
.
Even though the accused’s explanation or defence is improbable,
if his or her version is reasonably possibly true he/she
is entitled
to his acquittal. As was pointed out by Zulman JA in
S
v V
[8]
in a similar matter ‘
it
is permissible to look at the probabilities of the case to determine
whether the accused’s version is reasonably possibly
true but
whether one objectively believes him is not the test’
.
[25]
In
the present matter, as in many matters of a similar nature, the
question of corroboration of the single witness’ evidence
is
important. Here it must be borne in mind that a witness cannot
corroborate himself or herself, that repetition of a story cannot
furnish corroboration but can at most prove consistency and proof of
consistency is not the equivalent of corroboration (Principles
of
Evidence, 3
rd
ed, Schwikkard, page 530).
[26]
The
evidence must be holistically evaluated in determining whether the
State has discharged its onus or not. As was stated in
S
v Trainor
[9]
,
the correct approach is that a conspectus of all the evidence is
required. Evidence that is reliable must be weighed alongside
any
such evidence as may found to be false. Independently verifiable
evidence, if any, should be weighed to see if it supports
any of the
evidence tendered. In considering whether evidence is reliable, the
quality of that evidence has of necessity to be
evaluated, as has to
be corroborative evidence, if any. Evidence has to be evaluated
against the onus on any particular issue or
in respect of the case in
its entirety
[10]
. However, as
was emphasised in
S
v Shilakwe
[11]
,
once a detailed and critical examination of all the components of
evidence has been done, a court must step back and observe the
evidence as a whole. In that matter the Court quoted with approval
from the matter of
Mosephi
and Others v R
[12]
where the following was
stated:
‘
The
question for determination is whether, in the light of all the
evidence adduced at the trial, the guilt of the applicant was
established beyond reasonable doubt. The breaking down of a body of
evidence into its component parts is obviously a useful aid
to a
proper understanding in an evaluation of it. But, in doing so, one
must guard against tendency to focus too intently upon
the separate
and individual parts of what is, after all, a mosaic of proof. Doubts
about one aspect of the evidence led in the
trial may arise when that
aspect is viewed in isolation. Those doubts may be set at rest when
it is evaluated again together will
all the other available evidence.
That is not to say that a broad and indulgent approach is appropriate
in evaluating evidence.
Far from it. There is no substitute for a
detailed and critical examination of each and every component in the
body of evidence.
But, once that has done it is necessary to step
back a pace and consider the mosaic as a whole. If that is not done
one may fail
to see the wood for the trees’.
[27]
Finally,
it is as well to remind oneself that an appeal court will only
interfere with a conviction by a lower court if the latter
has
misdirected itself in making a finding on fact and another court will
come to a different decision. As was restated in
S
v Hadebe
[13]
:
‘…
there
are well established principles governing the hearing of appeals
against findings of fact. In short, in the absence of demonstrable
and material misdirection by the trial Court, its findings of fact
are presumed to be correct and will only be disregarded if the
recorded evidence shows them to be clearly wrong.’
[28]
In
the present matter the State’s evidence was, regrettably, not
as thoroughly prepared and presented as one would expect.
Nor was the
evidence analysed with sufficient care by the magistrate.
[29]
A
specific problem with the State’s presentation of its case was
the lack of attention paid to detail. The evidence of all
the State
witnesses, save for that of Mrs HB, was led somewhat briefly and
without attempting to elicit the kind of detail
which often provides
an indication as to the veracity of the evidence or not. I also find
it perplexing that the evidence of the
medical examination of the
complainant was simply presented by placing the J88 report form in
front of the Court without leading
the evidence of the examining
doctor. Another problem was the prosecutor’s occasional leading
questions to the complainant
and the magistrate’s failure to
intervene to correct this.
[30]
The
magistrate’s judgment was superficial in certain important
respects. No attempt was made by her to deal with contradictions
or
improbabilities in the evidence, apparent or real. The State’s
evidence was not carefully analysed and certain of the
findings made
by the Court were unwarranted or were generalisations, a prime
example being the magistrate’s finding that
the appellant’s
version was nonsensical (
onsinnig’
).
Similarly, the magistrate’s broad finding that EB gave a
meaningful, chronological account of her molestation and that
she
never contradicted herself is incorrect. Given these flaws, a careful
consideration of the evidence at this stage is all the
more
necessary.
The Evidence
EB’s
evidence
[31]
In
order to assess EB’s evidence it is appropriate to consider
some extracts therefrom. In examination in chief, EB was first
asked
to explain her understanding of the word rape. Her evidence proceeded
as follows:
‘
Ms
Soars: Why did the social worker let you stay with your grandma?
Ms (EB): Because
(the appellant) raped me.
Prosecutor: Okay.
Now (EB), do you know that the word rape means?
Ms Soars: (EB),
what does the word rape means?
Ms (EB): When
someone hurt you
Prosecutor: Okay.
And how does the person hurt you?
Ms Soars: How
does the person hurt you, (EB)?
Ms (EB): By
touching your vagina or putting his penis in your vagina.
Prosecutor: Now
who taught you that word?
Ms Soars: Who
taught you that word, (EB)?
Ms (EB): When I
went to my grandmother for the weekend and then I said my vagina was
sore and my grandmother asked why and then
I told her what happened
and then she told me, then she asked me if I know what he was doing
to me?
Court: What did
you tell your grandma?
Ms Soars: What
did you tell your grandma when she asked you?
Ms (EB): I said I
don’t know.
Prosecutor: Did
you tell your grandmother, you told your grandmother your vagina was
sore, is that right?
Ms Soars: (EB),
so you told your grandmother that your vagina is sore, is that right
so?
Ms (EB): Yes.
Prosecutor: Is
that the only thing you told your grandmother?
Ms Soars: Is that
all that you told her that day?
Ms (EB): No, I
told her the whole story what happened and then when we came home
from there then my grandma told me I should tell
my mommy.
Prosecutor: Okay.
Now you said you told your grandmother the whole story. Would you
tell us also the whole story?
Ms Soars: (EB),
would you tell us also the whole story as you told your grandmother?
Ms (EB): Yes.
Prosecutor: Okay,
now tell us the whole story, what is the whole story?
Ms Soars: (EB),
please tell us the whole story, ne?
Ms (EB): I told
my grandmother to come and fetch me to take me to the library and
then (the appellant) came to my room and he pulled
my panties down.
And then he put his penis in my vagina and he touched it. And he did
not hear my grandmother coming in by the
gate, but when my grandma
knocked, then he heard and he dressed himself quickly to open the
door for my grandma. So he made like
he was sleeping.
[32]
It
will be recalled that Mrs HB testified that EB disclosed twice to her
that the appellant was molesting her. The first occasion
was some
weeks before 24 September 2014 and the second was the day of what I
shall call the ‘
library
incident’
i.e. on 24 September 2014. According to Mrs HB on neither of those
occasions were these disclosures or allegations conveyed to
EB’s
mother, (Mrs B). That only took place on or about 13 October 2014
after Mrs HB took EB to a social worker and the police
were drawn in.
[33]
The
question of precisely when the incidents of molestation took place
and EB’s recollection thereof was not clarified when
the
prosecutor again addressed that issue directly with her. He referred
EB to the library incident which she had described and
the following
exchange took place:
‘
Prosecutor:
Now when this happened, in what grade were you?
Ms Soars: Now
(EB), when that happened to you, in what grade were you?
Ms (EB): I was in
grade R.
Prosecutor: Okay.
Is this the very first time that something like this happened to you,
the day that your grandmother came to get
you to go to the library?
Ms Soars: Is that
the first time that this happened to you?
Ms (EB): Yes.
Prosecutor: Now,
on this day did you go to school on this day or not?
Ms Soars: Now
(EB), on that day that you told us about now, did you go to school
that day?
Ms (EB): Yes.
A
little later the evidence resumes.
Prosecutor: Now,
when your grandmother got there, did you tell your grandmother what
happened to you on that day?
Ms Soars: Now,
when your grandmother came to your house, did you tell her that same
day what happened to you?
Ms (EB): Yes.
Prosecutor: What
did you tell your grandmother?
Ms Soars: What
did you tell her?
Ms (EB): I told
her that (the appellant) pulled my panties off and that he was laying
on me and he put his penis in my vagina.
Prosecutor: And
what did your grandmother do then?
Ms Soars: And
what did your grandmother do when you told her that?
Ms (EB): She told
me that when my mommy comes from work, I must tell my mommy the whole
story.
Prosecutor: And
did you tell your mommy the whole story?
Ms Soars: And
when your mommy came from work, did you tell her the whole story?
Ms (EB): Yes, I
went to the room and tell her.
Six lines later the
evidence resumes.
Prosecutor: Okay.
Did you go back home with your mommy on that day or not?
Ms Soars: Did you
go back home with your mommy that day?
Ms (EB): No, I
went to sleep with Gran for the weekend and then my mommy told (the
appellant).
Prosecutor: And
then what happened?
Ms Soars: And
then what happened after that?
Ms (EB): And then
(the appellant) told my mommy that he did not do it and my mommy came
to my grandma’s house and told my
grandma that.
[34]
These
passages reveal further discrepancies when measured against Mrs HB’s
evidence. The library incident took place in September
2014 and
therefore EB could not have been in grade R at the time. According to
Mrs HB the library incident was not the first occasion
on which EB
disclosed to her that she was being molested by the appellant and
thus it could not have been the first incident of
molestation.
According to Mrs HB EB did not go to school on the day of the library
incident and nor was there any disclosure to
EB’s mother on
that day and nor, by definition, to the appellant.
[35]
At
a later stage in EB’s examination in chief the prosecutor
returned to the issues of precisely when any molestation took
place,
how many incidents there were and the details thereof. The following
passage is relevant:
‘
Prosecutor:
Okay. Now when did the social worker say that you cannot stay in the
same house as (the appellant) anymore?
Ms Soars: So when
did the social worker say that you must go and live by your
grandmother?
Ms (EB): I do not
know.
Court: Okay. Were
you still in Grade R or were you in Grade 1?
Ms Soars: Were
you in Grade R that time or in Grade 1?
Ms (EB): I think
I was in Grade 1 that time.
Court: Now, did
anything happen to you while you were in Grade 1?
Ms Soars: Did
anything happen to you when you were in Grade 1?
Ms (EB): No, it
stopped that time.
Prosecutor: So
are you saying it stopped when you were in Grade 1?
Ms Soars: Did it
stop when you were in Grade 1?
Ms (EB): Yes.
Prosecutor: And
how many times did it happen?
Ms Soars: And how
many times did it happen?
Ms (EB): Between
5 or 13 times.
Prosecutor: Now
can you say how many times did it happen when you were in Grade 1, in
Grade1, ja?
Ms Soars: How
many times did it happen when you were in Grade 1?
Ms (EB): I think
twice.
Prosecutor: Okay.
So all the other times were that when you were in Grade R?
Ms Soars: So
(EB), the other times when it happened, were you in Grade R that
time?
Ms (EB): Yes.
Prosecutor: Now
can you tell us, if you can, more about the other times when it
happened?
Ms Soars: Now
(EB), can you tell us more about the other times when that happened.
Can you tell?
Ms (EB): I do not
think I can remember.
Prosecutor: Now
you told us now the day that grandmother took you to the library. Was
that the very first time?
Ms Soars: Now
(EB), so the day when your grandma took you to the library, was that
the first time it happened?
Ms (EB): I am not
sure.
Prosecutor: Now
you are saying that between 5 and 13 times. Now that times that it
happened, where was your mommy?
Ms Soars: Now
(EB), you said that it happened between 5 and 13 times, so where was
your mommy that times when that happened to you?
Ms (EB): My mommy
goes in the morning to work and then by the time, the time she goes
to work then he comes from work and then he
goes to work.
[36]
From
this passage, and again using Mrs HB’s evidence as a benchmark,
it would appear that EB corrected herself stating, albeit
hesitantly,
that she was in grade 1 i.e. it was 2014 when she was placed in her
grandmother’s care which would have been
in October 2014. She
limited the incidents of molestation, which in total she estimated to
have been between 5 and 13, to one or
two in that year with the
balance having taken place the previous year when she was in grade R.
EB could supply no detail of these
previous molestations stating that
she did not think that she could remember. The prosecutor appeared
satisfied not to probe that
answer any further. By clear implication
EB in effect corrected her earlier evidence that the molestation on
the day of the library
incident was the first occasion on which she
was molested.
[37]
The
issues of how many incidents of molestations had taken place, their
detail and their timing was not taken much further in EB’s
cross-examination by the appellant’s attorney. To the extent
that he dealt with any specific incidents he concentrated on
the
library incident with the result that the contradictions within EB’s
evidence and its vagueness in certain important
respects was simply
not dealt with.
[38]
At
one point the appellant’s legal representative did raise the
issue of the incidents of molestation other than the library
incident
but, as the following exchange illustrates, he was stopped from doing
so by the magistrate:
‘
Mr
Van Der Schyff: Now the 5, the 13 times when it happened, did it
happen whilst you were in Grade R or did it happened when you
just
got to Grade 1?
Court: Asked and
answered.
Mr Van Der
Schyff: As the court pleases. Thank you. Now, (EB), I must put to you
what (the appellant) is going to tell the court.
…’
[39]
Notwithstanding
the lack of any objection from the appellant’s legal
representative, there was no basis for this ruling by
the magistrate.
The appellant’s attorney had not asked any questions on these
issues previously and was certainly not bound
by EB’s answers
to the prosecutor in her examination in chief. The question of when
the balance of the incidents of sexual
molestation took place and
their extent cried out for closer examination. In my view the
magistrate committed a material irregularity
when she blocked this
line of cross-examination.
[40]
As
I have indicated, the magistrate’s finding that EB gave a
meaningful and chronological account of events and that she never
contradicted herself is not borne out on an examination of the
evidence. EB testified that she had been molested ‘
between
5 or 13 times’
but how she arrived at this figure was not explored by the prosecutor
in examination in chief nor was it dealt with in cross-examination.
Nor could EB give much detail of the circumstances surrounding her
molestation by the appellant other than on the occasion of the
library incident. All this has implications for the factual matrix
upon which the appellant was eventually convicted, a matter
to which
I shall return.
[41]
Apart
from those listed above there were further discrepancies, albeit
minor ones, between the evidence of EB and that of Mrs HB.
Dealing
with the library incident, EB stated that when her grandmother had
fetched her it had been in a friend’s vehicle.
Mrs HB testified
that she had walked to her daughter’s house and there was no
question of a friend accompanying her. EB said
that the incident took
place on a day when she had gone to school, but according to Mrs HB
it had been a public holiday.
[42]
When
the evidence is looked at as a whole it is clear that EB had an
imperfect recollection of the alleged acts of sexual molestation
and
that it was the library incident which loomed large in her mind. It
deserves to be emphasised that it would be unrealistic
to expect of a
five year old child that, some five years later, she would have a
clear recollection of precisely when multiple
incidents of sexual
molestation took place over a prolonged period. Furthermore, EB’s
evidence should not be considered in
isolation. In this regard Mrs
HB’s evidence is vitally important since she was the person to
whom EB made the first report
and who played a vital role in the
revelations of sexual molestation. When account is taken of Mrs HB’s
evidence it seems
quite clear, furthermore, that EB had conflated the
library incident with the incident some weeks later when Mrs HB took
her to
the social worker and on which occasion EB’s mother was
told of EB’s allegations that she was being molested by the
appellant. The evidence of Mrs HB, the grandmother, is critical in
determining not only whether EB’s evidence is credible
but also
whether the alleged sexual molestation was a single incident or
involved more numerous incidents.
Mrs HB’s
evidence
[43]
It
is significant that Mrs HB traced difficulties back to 2013 when,
according to her, EB’s mother herself reported that the
child
had a vaginal discharge (as opposed to a rash) which had been raised
with a doctor. Even at that time, Mrs HB testified,
she and her
daughter began to think of who EB might be playing with. (Mrs B)
later denied in her testimony that EB ever had a vaginal
discharge.
[44]
In
2013 Mrs HB noted that EB did not want her to wash her private parts
in the bath because it was sore but when she pointedly asked
EB how
she got hurt or who hurt her she did not want to talk. A similar
occurrence took place in 2014, but on that occasion Mrs
HB pressed EB
saying that she could not be sore ‘
every
time’
.
The core of her evidence about this first disclosure was as follows:
‘
Mrs
HB: And then in 2014 when she came to me again one weekend and again
with the bathing that she did not want me to wash her private
parts,
I then, when I dried her I took her to my room and I said to her, but
you cannot be sore every time, what happened. And
then I said to her
but if you not going to tell me, then I will have to take you to the
police or somebody that you will then talk
to. And then she grabbed
my face and started to cry. And eventually then she said to me, but
it is (the appellant), but ma, please,
please, please, pinkie promise
please do not tell anyone, because he said he is going to hit me.’
Mrs HB: I then
asked her, did he just touch you, because if he just touch you how
come that you are sore. And then she said that
he put his penis in
her vagina, but for her to say that, there was a lot of tears and
emotion’.
[45]
The
next incident was 24 September 2014 when Mrs HB went to fetch EB in
the late morning to go to the library. Mrs HB emphasised
how
different things had been that day in that EB had not come excitedly
to the window after hearing the gate open as she normally
did when
her grandmother arrived. She had to knock on the door for a ‘
very,
very long time’
and had a sense of uneasiness. Eventually, dressed in his wife’s
nightgown, the appellant came to the door and directed her
to EB’s
room where she found EB lying under a duvet but looking nervous and
not showing the excitement which she normally
did when her
grandmother arrived. Mrs HB removed the duvet to find EB’s
pyjamas pulled down to her knees. According to her
EB’s brother
was in crèche that morning and therefore the appellant and the
complainant had been alone in the house.
Mrs HB sensed something was
not right and later questioned EB as to why her pyjama pants had been
pulled down. EB cried and told
her that the appellant had come to lie
next to her in her bed and had touched her and put his penis in her
vagina again. It was
a few weeks later when EB was recovering from
mumps that Mrs HB finally took action by contacting a social worker
regarding EB’s
alleged molestation.
[46]
Although
Mrs HB did not confront the appellant at the time of the library
incident it is of some significance that when Mrs HB was
cross-examined her experience and observations at the appellant’s
house on the day of the incident were not challenged on
behalf of the
appellant. There was accordingly no explanation proffered by the
appellant why the child was still in bed at 11am
or partially
undressed in the manner that she was found by Mrs HB.
[47]
In
my view, Mrs HB’s evidence is vitally important in that it
establishes, firstly, consistency on the part of EB in reporting
that
the appellant was responsible for her sexual molestation. It also
strongly suggests that EB’s molestation must have
begun as
early as 2013 but in any event was ongoing in 2014 and was not
limited to a single incident.
[48]
The
magistrate made no specific finding on Mrs HB’s credibility as
a witness but it seems clear that her evidence was accepted
in full.
On appeal an argument mustered against Mrs HB’s evidence was
that it should be rejected because her explanation
for failing to
report the alleged sexual molestation at the first available
opportunity was unconvincing. In my view this criticism
is
unjustified. Mrs HB testified of her shock when EB first told her in
2014 that the appellant was sexually molesting her. She
testified
that her mind was blank and she did not know what to do or where to
go and that she could not really believe the allegations.
She
explained further that there were many things going through her mind.
She was thinking of her daughter, of the appellant and
about their
marriage. Again after the library incident and the further
disclosures by EB, Mrs HB testified that she was numb and
did not
know what to do. She contacted her brother for advice and he told
that she would have to do something. She was too afraid
to tell her
daughter, thinking that whatever she said would have consequences and
that she needed to be one hundred percent certain.
She testified that
what eventually drove her to action was when EB was recovering from
mumps and EB’s mother asked for her
to be sent home so that the
appellant, who had taken leave, could look after her. This appeared
to be the last straw for Mrs HB
who could not understand why the
appellant wanted to look after EB when she was perfectly willing and
able to do so. She then took
EB to Ms Tsatsi, the social worker. When
EB confirmed the allegations to Ms Tsatsi, the police were
immediately drawn in.
[49]
Mrs
HB’s explanation for not raising the matter immediately with
the appellant makes complete sense. She obviously realised
the
far-reaching repercussions for her daughter and her family if she
raised the molestation allegations or confronted the appellant
and
her fears in this regard were indeed borne out. Mrs HB’s
account of how she was eventually compelled to act by a combination
of the library incident, the advice of her brother and the final
incident, when she was asked to send EB back to be placed in the
care
of the appellant while she recovered from mumps, is entirely
credible. In any event, even if Mrs HB can be criticised for
her
tardiness in taking action this does not necessarily reflect upon her
credibility as a witness.
[50]
In
my view, the magistrate’s acceptance of Mrs HB’s evidence
cannot be faulted. Her evidence reads well and she appears
to have
been an intelligent and observant person who was able to articulate
her experiences and her emotions well. Her evidence
forms a solid and
reliable account against which the complainant’s evidence can
be evaluated.
The
appellant’s case
[51]
The
appellant’s evidence constituted a denial of any molestation of
EB. It did not, by its nature, admit of much scope for
cross-examination. The appellant was not able to offer any
explanation as to why the complainant would make false allegations
against him but clearly this cannot be held against him nor can any
adverse inference be drawn against him. His evidence did establish
was that his working hours were such that he was often alone in the
house during the daytime with EB and with his son, then only
either 2
or 3 years old.
[52]
Apart
from the appellant’s general denials and his insistence that he
had always treated EB as his own daughter, the only
evidence which he
gave suggesting that EB’s allegations against him were false
was his recounting that his wife had told
him that EB had allegedly
said at the police station exonerating him. This requires an
evaluation of (Mrs B)’s evidence which
sought to cast doubt on
the veracity of EB’s evidence that she was molested by the
appellant.
(Mrs B)’s
evidence
[53]
(Mrs
B) testified that she had been shocked and surprised when her mother
had advised her of EB’s allegations of molestation
by the
appellant because she never expected to hear anything like that and
she had not suspected that anything was happening. She
had
immediately asked EB about the allegations but the child had started
crying and did not want to speak. This latter evidence
was directly
at odds with that of EB and Mrs HB.
[54]
(Mrs
B) testified that the day after first hearing of the allegations, and
after hearing from the social worker, she had again asked
EB about
the allegations who then had told her that it was not the appellant
and that nothing had happened. Her evidence was further
that later
that same day at the police station Constable Sukaze had asked
Constable Jeffrey to interview the complainant. When
Jeffrey emerged
from interviewing EB she told her (Mrs B) and Constable Sukaze that
EB had told her that it was not the appellant
who had molested her
and therefore that she (Mrs B) should not worry. On the same
occasion, Constable Jeffrey had also told her
and Constable Sukaze
that EB had told her that she had come from school one afternoon to
find no one at home. EB had gone to the
back yard of a neighbour’s
house where she had been raped and molested by ‘
some
guy’
.
This was the first occasion on which (Mrs B) had heard these
allegations. However, (Mrs B)’s evidence continued, Constable
Sukaze had responded to Jeffrey by saying that he did not believe
that story. Nonetheless (Mrs B) had shortly afterwards told the
appellant that he need not worry since EB had apparently said it was
not him who had molested her. Despite all this Constable Sukaze
proceeded to question the appellant and then arrested him. Under
cross-examination (Mrs B) was forthright in stating that she did
not
believe EB’s allegations regarding the appellant.
Analysis of
the evidence
[55]
On
appeal, EB’s evidence regarding the library incident was
challenged as being improbable. In particular, it was suggested
that
it was improbable that the appellant would have molested EB
immediately before her grandmother arrived at the house or, having
done so, would have allowed her to go to the library; furthermore;
that it would have been expected that EB would be bleeding and
in
severe pain. In my view, none of these alleged improbabilities is
borne out by the evidence.
[56]
Firstly,
Mrs HB’s evidence was that her calling at the appellant’s
house that day had not been pre-planned. Secondly,
assuming that the
appellant had just molested EB, it would have excited Mrs HB’s
suspicions more had the appellant not allowed
her to take EB to the
library. Thirdly, it does not follow that had a molestation just
taken place EB would have been bleeding
and in severe pain. That
would depend on the degree of molestation or penetration, how far the
act had progressed and how frequently
such molestation had taken
place in the past. Similarly, the argument that the medical
examination findings (made some three weeks
later) did not support
EB’s version for want of detailed and fresh injuries is without
merit. On neither EB’s nor Mrs
HB’s evidence had there
been an incident of molestation in the weeks prior to EB being
examined at Karl Bremer hospital.
[57]
On
behalf of the appellant reliance was also placed on other
discrepancies between the evidence of EB, Mrs HB and other State
witnesses.
Many of these dealt with who exactly had been present when
EB spoke in turn to Ms Tsatsi and Constables Jeffrey and Sukaze. It
is unnecessary to go into detail regarding these discrepancies since
in my view they are not material. It was not disputed that,
apart
from Constable Sukaze to whom she would not open up, EB had directly
advised both of the other independent officials that
the appellant
had sexually molested her. To the extent that there were differing
versions of whether Mrs HB was with EB when she
was interviewed by
one or more police officials and when Ms Tsatsi first interviewed the
child, these are not material differences.
There was never any
suggestion that Mrs HB had encouraged EB to make allegations of
molestation against the appellant.
[58]
I
have already dealt with the evidence of EB and Mrs HB in some detail.
[59]
The
evidence of the appellant’s principal witness, (Mrs B) calls
for closer scrutiny. Her evidence that EB had started crying
and
would not speak to her when she first asked her about the allegations
that the appellant had molested her was contradicted
by Mrs HB’s
evidence. Furthermore, this was put to neither EB nor Mrs HB. The
latter testified that immediately after she
had told her daughter
about the allegations EB had confirmed to her ((Mrs B)) that she had
been molested by the appellant. That
evidence was not challenged at
the time on behalf of the appellant.
[60]
As
previously mentioned, on the day after EB’s initial disclosures
to Mrs Tsatsi and the police, (Mrs B) testified that she
attended
upon the social workers to obtain an explanation as to what EB had
told them regarding the medical examination. Her evidence
was she
again asked EB about the matter who told now her that it was not her
step-father and added that nothing had happened. This
was put to EB
in cross-examination and her response was that it was not true and
that she thought her mother was lying in this
regard.
[61]
(Mrs
B) testified in some detail about what she had been first told at the
police station all of which caused her to disbelieve
that EB had been
molested by the appellant. Despite (Mrs B) allegedly being told by
Constable Jeffrey in the presence of Constable
Sukaze that EB had
recanted her allegations that the appellant had molested her and that
she had been raped by a stranger, her
evidence was that Constable
Sukaze had nonetheless proceeded to question the appellant and then
arrest him. (Mrs B) could offer
no explanation why Constables Sukaze
and Jeffrey had testified that there was never any mention of any
other person who had raped
or molested EB. Furthermore, the
allegation that EB had said that she had been raped by a stranger in
a neighbour’s backyard
was never put to EB, or any other State
witness for that matter. A further difficulty with this evidence by
(Mrs B) is that a different
version was put to EB by the appellant’s
legal representative, namely, that at the police station in the
presence of her
mother and her grandmother she had told the police
that it was not the appellant who had molested her. As mentioned EB
denied ever
recanting her statement that it was the appellant who had
molested her or saying that no one had done so. For her part Mrs HB
testified
that she had not even been present on 14 October 2014 when
EB was taken to the police station by (Mrs B) and interviewed there
by the police. She too testified that the appellant was the only name
that EB ever mentioned, time after time, as being the person
who
molested her.
[62]
Central
to (Mrs B)’s evidence of EB recanting in her allegations were
Constables Jeffrey and Sukaze. However, both witnesses
testified that
the only person identified by EB as a molester was the appellant and
neither ever heard of anyone else being identified
by EB or that she
had recanted in her allegations against the appellant. The
unchallenged evidence of Ms Tsatsi that when she interviewed
EB the
latter identified the appellant as her molester must also be taken
into account.
[63]
Accordingly,
the only evidence that EB ever recanted or wavered in her
identification of the appellant as her molester comes from
(Mrs B),
with hearsay support from the appellant.
[64]
On
appeal the magistrate was criticised for relying unduly on demeanour
findings in her evaluation of (Mrs B). The magistrate stated
that
having regard to (Mrs B)’s attitude in court it was not
surprising that EB did not confide in her. Seen in context this
observation appears to relate principally to (Mrs B)’s evidence
that she had never believed that the appellant had molested
her
daughter and not to her demeanour as such. Accordingly, I do not
consider that such criticism is well founded.
[65]
The
magistrate was, however, correctly criticised by the appellant’s
legal representative as having misconstrued one aspect
of (Mrs B)’s
evidence, namely, that EB had allegedly told Constable Jeffrey that
she had been raped in a backyard by a stranger.
The magistrate stated
as follows: ‘
(Mrs
B) glo die kind was verkrag na skool eendag. As (Mrs B) dit geweet
het, hoekom het sy op daardie stadium niks daar omtrent
gedoen nie’
.
This reasoning lost sight of the fact that according to (Mrs B) this
alleged revelation only came to light after the appellant
had already
been identified by EB as her molester and very shortly before he was
arrested, thus removing much of the force in the
magistrate’s
criticism of (Mrs B)’s credibility based on this ground.
[66]
The
shortcomings in (Mrs B)’s evidence seeking to cast doubt on
EB’s identification of the appellant raise serious doubts
as to
(Mrs B)’s own credibility in this regard. That credibility
problem is exacerbated by the fact that (Mrs B) was interviewed
by
the social worker, Mrs Lakey, not long after the whole matter came to
light, as was confirmed in Mrs Lakey’s report dated
15 December
2014. Under the heading ‘
Collateral
Information obtained from (Mrs B)’
,
Mrs Lakey wrote that (Mrs B) ‘
does
not believe (EB). She based her disbelief on the way (EB) disclosed
to her. Furthermore, she doubts (EB)’s disclosure
as (EB)
always complained of a sore vagina and she frequently had a vaginal
rash’
.
If at that stage (Mrs B) had indeed been told that EB had said that
she had been raped by an unknown person in a neighbour’s
backyard, and also that it was not the appellant who had molested
her, one would expect that she would have mentioned these to
Mrs
Lakey as reasons why she disbelieved EB’s allegations
implicating the appellant.
[67]
When
regard is had to all these factors, I consider that (Mrs B)’s
evidence did not weaken the State’s case and lends
no support
to the appellant’s case. In fact, her evidence strongly
suggests that her mind was closed to the possibility that
the
appellant could have sexually molested his step-daughter.
Overall
conclusions
[68]
Notwithstanding
the errors and any misdirections in the manner in which the
magistrate dealt with the evidence and in her judgment,
it remains
this Court’s duty to determine whether these were material and
whether, on a balanced and holistic evaluation
of the evidence, the
State succeeded in discharging its onus.
[69]
Central
to this question is the credibility of EB’s evidence as a
single witness. In argument before us the State conceded
that EB was
not a ‘
spectacular
witness’
.
This euphemistic description was an appropriate concession. As has
been demonstrated, portions of EB’s evidence were flawed
by
internal contradictions and a lack of detail. The magistrate found
that her evidence was meaningful and chronological but that
broad
finding is not justified. This does not mean, however, that all of
EB’s evidence should be rejected out of hand. When
considering
the discrepancies and apparent contradictions in the complainant’s
evidence it must also be borne in mind, that
she was testifying at
the age of 10 regarding events which took place when she was 5 or 6
years of age. As Mrs Lakey noted in her
initial report EB had
‘
difficulty
to relate information in complete chronological order’
but
‘
the
core elements remained consistent’
.
What is more, the events described by EB, if true, would have been
very traumatic for any child. She stood firm in her evidence
that it was the appellant alone who molested her and that this took
place on several occasions and, as far as she could remember,
over
the period 2013/2014 when she was in grade R or grade 1. Her account
of what happened during the library incident was consistent
and, in
material aspects, tallied with the independent account given by Mrs
HB. Crucially then, EB’s evidence was partially
corroborated by
the evidence of Mrs HB regarding the library incident and by the
undisputed medical evidence.
[70]
EB
fared well in cross-examination and no inherent improbabilities were
exposed in her evidence. It was common cause in the evidence
of the
State witnesses and that of the appellant and his wife that there
were no pre-existing tensions within the family relationships
which
might have pre-disposed EB to make false allegations against her
step-father. The same considerations applies to Mrs HB,
the
grandmother. Prior to the disclosure of the incidents the
relationships between her, her daughter and the appellant were
altogether
harmonious.
[71]
As
mentioned, further evidence which at least partially corroborates
that of EB’s was the medical evidence that on examination
on 13
October 2014 the examining doctor found that there were multiple old
tears in EB’s hymen, consistent with vaginal penetration
in the
past. It is unfortunate that the State did not call the examining
doctor to further explain his report and the implications
of his
findings. It would have been of value had he been called to give body
and context to his report and to be available for
cross-examination
and questions from the Court. That said, the J88 report was admitted
with the agreement and consent of the appellant’s
legal
representative and was uncontroverted. No one offered any
explanation, other than what has already been discussed in this
judgment, how the then five year old complainant could have sustained
the vaginal injuries which were found on examination.
[72]
In
her judgment, the magistrate stated ‘
die
beserings wat aangedui is op die J88 is nie in geskil geplaas nie.
Wat wel in geskil geplaas is, is dat die beskuldigde die
person is
wie die klagster verkrag het’
and
further ‘
daar
is ook mediese getuienis vir die stawing vir wat die klagster vir die
hof vertel het wat gebeur het’
.
The magistrate may have somewhat overstated the implications of the
medical evidence to in suggesting that she suggested that
the
clinical findings equated to a finding that EB was raped since the
injuries could, for example, conceivably have been self
or
accidentally inflicted. However, in the absence of any such
explanation, on the overwhelming probabilities the medical evidence
confirmed that EB had been sexually penetrated by someone in the
past.
[73]
A
further factor which I regard as material to the complainant’s
credibility is that EB’s disclosures that she had been
molested
by the appellant were very reluctantly made and only following a
process of cajoling and pressure from her grandmother.
This does not
strike one as the response of a child eager to make false allegations
of sexual molestation against anyone. That
some form of sexual
activity had indeed taken place is borne out by the unchallenged
medical evidence which scotches any suggestion
that the molestation
allegations were a figment of EB’s imagination. The substance
of EB’s evidence was consistent
and corroborated by the medical
evidence and, perhaps to a lesser degree, by Mrs HB’s account
of the library incident. EB
persisted in her allegations and evidence
up to and throughout the case notwithstanding that she was
immediately removed from the
care and custody of her mother and
step-father and placed in that of her grandmother. It is also clear
that (Mrs B), EB’s
mother, never believed EB’s
allegations regarding the appellant. The fact that EB maintained her
version of events in the
face of this hostile emotional climate gives
her evidence added credence.
[74]
The
appellant bears no onus of disproving any part of the State’s
case nor of furnishing reasons why EB would make false allegations
against him. It must however be taken into account that, as far as
the evidence shows, there was no apparent reason for EB to make
false
allegations against the appellant. To the extent that he relied on
the evidence of his wife that EB recanted her allegations
in her
presence and that of the police or withdrew them at any stage, such
evidence was not fully put to witnesses and finds no
support
whatsoever from any independent parties directly involved, namely,
the two police officials and the social workers. This
reflects
adversely on the credibility of (Mrs B), the only witness called by
the appellant.
[75]
I
turn now to those grounds of appeal and submissions on behalf of the
appellant to the effect that he was not adequately legally
represented. The principal difficulty with these arguments are that
they are not substantiated by the record of proceedings and
in effect
amount to the appellant’s new legal representatives giving
evidence through the Notice of Appeal and heads of argument.
Nowhere
in the record is there any suggestion by the appellant or his witness
that instructions given to the legal representative
were not put to
State witnesses or were incorrectly put. Nor is there any indication
on the record that admissions were made other
than on the appellant’s
instructions as, for example, when the J88 form and Mrs Lakey’s
report were handed in by agreement.
To give credence to these grounds
of appeal would mean the acceptance at face value of any
unsubstantiated submissions by an appellant
who avers in a notice of
appeal or in argument that he/she was not properly represented during
trial. In my view, these grounds
of appeal cannot be sustained.
[76]
For
all the reasons I have mentioned, I find that EB’s evidence as
a single witness notwithstanding its flaws, was trustworthy
and can
be relied upon. This finding is, however, subject to an important
limitation relating to those parts of her evidence which
were so
vague or lacking in detail that it would be unsafe to rely on them.
It will be recalled that EB’s evidence was that
the incidents
of molestation numbered between 5 and 13, most of them taking place
while she was in grade R with the balance, one
or two incidents,
taking place when she was in grade 1. EB was not able to give any
detail at all regarding any incidents in 2013
i.e. when she was in
grade R, stating that she could not remember them. Furthermore, as
mentioned earlier, the magistrate disallowed
cross-examination on
that point. The only other evidence of EB being sexually molested
during 2013 was Mrs HB’s evidence
that EB had suffered from a
vaginal discharge that year and that on one occasion she had not let
her wash her private parts complaining
that they were sore. This
evidence, seen in the greater picture, suggests that EB was being
molested as early as 2013, but given
its lack of specificity I do not
consider it safe to
found
any conviction on such scant evidence.
[77]
EB
did give clear evidence, however, regarding the incident which took
place on the day of the library incident. Furthermore, when
her
evidence is read together with that of Mrs HB then it is clear that
there must have been at least one prior incident of molestation
during 2014 since on two occasions before the library incident she
had complained of a sore vagina. On the first such occasion
EB would
make no disclosure but on the second occasion she eventually
disclosed to Mrs HB that the appellant had been molesting
her and had
put his penis in her vagina. Apart from these two penetrations,
however, there is no clear evidence of other acts of
sexual
molestation during 2014. This picture ties in however with EB’s
evidence that there were only a few incidents of molestation
during
2014 i.e. when she was in Grade 1.
[78]
The
ultimate issue is whether the State discharged the onus of proof
which it bore in this matter. In considering this question,
I
take into account what Malan JA stated regarding the level of proof
in
R
v Mlambo
[14]
:
‘
In
my opinion there is no obligation upon the Crown to close every
avenue of escape which may be said to be open to an accused.
It is
sufficient for the Crown to produce evidence by means of which such a
high degree of probability is raised that the ordinary
reasonable
man, after mature consideration, comes to the conclusion that there
exists no reasonable doubt that an accused has committed
the crime
charged. He must, in other words, be morally certain of the guilt of
the accused’.
[79]
On
a critical assessment of the evidence I consider that the State has
succeeded in meeting its onus of proof only in respects of
incidents
which took place in 2014 and, furthermore, that these comprised two
sexual penetrations which took place on or about
24 September (the
library incident) and an earlier penetration some weeks before that
date. It follows from this that the State
failed to prove its case on
count 2 which charged the appellant with sexual violations on several
occasions in 2013 and 2014 and
that on count 1 it proved only the two
penetrations in 2014.
[80]
The
magistrate not only found the appellant guilty on counts 1 and 2 but
did not stipulate in terms whether she accepted EB’s
evidence
that there had been between 5 and 13 incidents of sexual molestation
all told. This was a matter which required clarification
not least
because of its importance for sentencing purposes.
[81]
There
was no appeal against sentence in this matter, the appeal against
conviction having been argued on an all or nothing basis.
The finding
which we have arrived at means a confirmation of the appellant’s
conviction on count 1 and on a different factual
basis to that
impliedly found by the magistrate. Our finding thus necessarily
involves a reconsideration of the sentence imposed
by the magistrate.
Since no submissions were heard on sentence I consider that the
appellant and the State must be given an opportunity
to make such
submissions in light of the findings made by this Court. These can
either be in written form or, should either party
consider that oral
submissions are necessary, such a request can be directed to the
Court for our consideration.
[82]
In
the result the following order is made:
1.
The
appeal against conviction is partly upheld in that the conviction on
count 2 is set aside;
2.
The
appeal against the conviction on count 1 is dismissed and that
conviction is confirmed but on the basis set out in paragraph
79 of
this judgment;
3.
The
parties are afforded an opportunity to make written submissions
regarding sentence and, if so advised, also motivate in writing
for
an oral hearing, within 15 days of this judgment being handed down.
4.
The
consequent further proceedings for the reconsideration of sentence
pursuant to the order made in paragraphs 1 and 2 are postponed
sine
die.
____________________
BOZALEK J
____________________
GIBSON AJ
For the Appellant:
Mr M Stevens
As
Instructed
For the Respondent:
Adv E Cecil
As Instructed: The
Director of Public Prosecutions
[1]
2009
(1) SACR 552 (SCA)
[2]
2019
(2) SACR 613 (WCC)
[3]
[2020]
ZASCA 42
(21 April 2020)
[4]
1981
(1) SA 1020
(A) at 1021
[5]
at para 51.
[6]
1981
All SA 182 (A)
[7]
1951
(3) SA 158
(A) at page 163
[8]
2000
(1) SACR 453
[9]
2003
(1) SACR 35 (SCA)
[10]
See
also in this regard
S
v Van Aswegen
2001 (2) SACR 97
(SCA) at para 8 endorsing
S
v Van Der Meyden
1999 (2) SA 79
at 82 C – E.
[11]
2012
(1) SACR 16
(SCA) para 11
[12]
(1980
–
1984) LAC 57
at 59 F – H
[13]
1997
(2) SACR 641
at 645 e –f
[14]
1957
(4) SA 727
(AD) at 738 A – C