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[2020] ZAWCHC 115
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Ergie v S (A71/2020) [2020] ZAWCHC 115; 2021 (1) SACR 127 (WCC) (2 October 2020)
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Republic of South Africa
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No. A71/2020
Before:
The Hon. Ms Justice Goliath (Deputy Judge President)
and
The Hon. Mr
Justice Binns-Ward
Allocated hearing date: 4 September 2020
Judgment: 2 October 2020
In the
matter between:
KANDE KABEJA ERGIE
Appellant
and
THE
STATE
Respondent
JUDGMENT
BINNS-WARD J (GOLIATH
DJP concurring):
[1]
The appellant was convicted of rape within
the meaning of that term in
s 3
of the
Criminal Law (Sexual
Offences and Related Matters) Amendment Act 32 of 2007
, in that it
was found by the trial court that he had committed an act of ‘sexual
penetration’, as defined in
s 1
of the Act, by inserting a
finger into the genital organs of the complainant. The
prescribed sentence in terms of the
Criminal Law Amendment Act 105 of
1997
was life imprisonment because the complainant was under 16 years
of age, but the magistrate found that there were substantial and
compelling circumstances that justified the imposition of a lower
sentence. He was sentenced to 12 years’ imprisonment.
An application for leave to appeal against his conviction was
dismissed by the trial court. The appeal was brought with leave
obtained on petition to this court (Fortuin and Cloete JJ).
With the consent of the parties’ legal representatives,
it was
disposed of without an oral hearing, on the basis of counsel’s
written submissions, in terms of
s 19(a)
of the
Superior Courts
Act 10 of 2013
.
[2]
The complainant was 8 years old at the time
of the commission of the alleged offence. She was 9 when she
testified at the
trial. Her evidence was given with the use of
an intermediary, in terms of
s 170A
of the
Criminal Procedure
Act 51 of 1977
. She was a single witness as to the alleged
sexual assault. The magistrate correctly assessed that the
complainant
did not understand the implications of taking the oath,
and therefore, as provided in terms of
s 164
of the
Criminal
Procedure Act, her
evidence was adduced after she had been admonished
to tell the truth.
[3]
As counsel for the appellant rightly
emphasised, there were two reasons for the complainant’s
evidence to be evaluated with
caution; viz. that she was a young
child and also a single witness. It is always useful,
especially in difficult cases like
the present one, for a court to
remind itself of the pertinent principles. Notwithstanding that
they are often characterised
as trite, expressly reiterating them can
help to promote their faithful application in the evaluation of the
evidence, which is
the most important consideration. The law
reports bear testimony to numerous instances in which appellate
courts have criticised
trial courts for paying only lip service to
the cautionary rules; see e.g.
S v
Raghubar
2013 (1) SACR 398
(SCA) at
para 11 and cf.
S v Saban en ’n
Ander
1992 (1) SACR 199
(A). The
judgment in
Saban
is an insightful reminder of the importance of the distinction
between credibility and reliability in the assessment of a single
witness’s evidence, and that positive findings on both aspects
of the witness’s evidence must be made before the evidence
can
safely be depended on to found a finding of guilt. The judgment
also illustrates how an inadequate enquiry into material
questions
during the trial – for example by failing to pursue obvious
lines of enquiry identified in the evidence that is
adduced –
can thwart a trial court’s ability to properly evaluate a
single witness’s reliability.
[4]
In
Rex v Manda
1951 (3) SA 158
(A), Schreiner JA explained that there is no
rule of law that the evidence of a child must be corroborated, but
that ‘[n]
evertheless the principle
has properly been acted upon that the evidence of young children
should be accepted with great caution
’.
[1]
The learned judge of appeal proceeded ‘
...
the dangers inherent in relying on 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. It seems to me
that the proper approach to a
consideration of their evidence is to follow the lines adopted in the
case of accomplices (
Rex v
Ncanana
1948 (4) SA 399
(AD))
and in the case of complaints in charges of sexual assault (
Rex
v W
.,
1949 (3) SA 772
(AD)).
The trial court must fully appreciate the dangers inherent in the
acceptance of such evidence and where there is reason
to suppose that
such appreciation was absent a court of appeal may hold that the
conviction should not be sustained. The
best indication that
there was proper appreciation of the risks is naturally to be found
in the reasons furnished by the trial
Court
.’
[2]
[5]
This passage has been endorsed and followed
on a number of occasions; see, for example,
S
v V
2000 (1) SACR 453
(SCA);
[2000] 2
All SA 86
(A) at para 2;
S v Ramulifho
2013 (1) SACR 388
(SCA) in para 12 at note 16,
S
v Pillay
[2016] ZASCA 26
(18 March
2016) at para 8,
S v Baadjies
2017 (2) SACR 366
(WCC) at para 14 and, most recently,
S
v DJ
2019 (2) SACR 613
(WCC). The
reference in it to
R v W
should,
however, be read mindful of the rejection, in
S
v Jackson
1998 (1) SACR 470
(SCA) at
474G-477D,
[3]
of the notion that there should be any reason in the ordinary course
to approach the evidence of a complainant in a sexual offence
case
with caution. However, as the court in
Jackson
acknowledged, factors peculiar to a given sexual offence case might
require a court nevertheless to evaluate the evidence with
particular
caution. In
S v SMM
2013 (2) SACR 292
(SCA), Majiedt JA remarked that it would not be
safe to convict the appellant of rape on the single witness evidence
of a 13-year
old girl, despite her evidence having been rightly
regarded as ‘honest, credible and trustworthy’.
[4]
The dictum might appear to imply that corroboration of a child
witness’s evidence was an absolute requirement but,
if read in
that way, it would not be in accord with the prevailing tenor of the
authorities. It does serve, however, on any
approach, as an
illustration of the especially high degree of caution with which
courts approach the single witness evidence of
children in sexual
assault cases.
[6]
A conviction on the basis of the evidence
of a single witness is competent in terms of
s 208
of the
Criminal Procedure Act, 1977
. In
R
v Mokoena
1932 OPD 79
at 80, De
Villiers JP stated of the equivalent provision in the 1917 Act
that ‘
the uncorroborated evidence
of a single competent and credible witness is no doubt declared to be
sufficient for a conviction ...,
but in my opinion that section
should only be relied on where the evidence of the single witness is
clear and satisfactory in every
material respect
’.
That statement gave rise to considerable jurisprudential debate in
the succeeding decades, with the position eventually
being settled by
Appellate Division in
S v Sauls
1981
(3) SA 172
(A), in which Diemont JA held ‘
There
is no rule of thumb test or formula to apply when it comes to the
evidence of a single witness ... .
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. The cautionary
rule referred to by De Villiers JP in 1932 may be a guide to a right
decision but it
does not mean “
that
the appeal must succeed if any criticism, however slender, of the
witnesses’
(sic)
evidence were well
founded
”
... .
It has been said more than once that the exercise of caution must not
be allowed to displace the exercise of common
sense.
’
[5]
In this context too, the best indication of whether appropriate
caution was applied by the trial court to the evaluation
of the
evidence is to be found in its reasons for judgment.
[7]
In
S v Dyira
2010 (1) SACR 78
(ECG), a case in which both of the cautionary rules
applicable in the current case also pertained, Jones J stated
‘
The courts should be aware of the
danger of accepting the evidence of a little child because of
potential unreliability or untrustworthiness,
as a result of lack of
judgment, immaturity, inexperience, imaginativeness, susceptibility
to influence and suggestion, and the
beguiling capacity of a child to
convince itself of the truth of a statement which may not be true or
entirely true, particularly
where the allegation is of sexual
misconduct, which is normally beyond the experience of small children
who cannot be expected
to have an understanding of the physical,
social and moral implications of sexual activity ... . Here
more than one cautionary
rule applies to the complainant as a
witness. She is both a single witness and a child witness.
In such a case the
court must have proper regard to the danger of an
uncritical acceptance of both a single witness and a child witness
(
Schmidt
Law of Evidence 4-7).
’
[6]
[8]
In the current matter the magistrate made
reference in her judgment to the applicable cautionary rules, and to
the judgment in
Sauls
,
in the following terms:
‘
Regarding
the point in dispute [V] is not only a single witness but also a
young child. The Court must therefore approach
her evidence
with caution to determine if it is not only credible but also
reliable.
But
as it was stated in
S v Sauls
...
“
The
exercise of caution must not be allowed to displace the exercise of
common sense.”
[V]
is an innocent little girl with no apparent hidden motives. She
gave a simple account about a single incident that occurred
in the
accused’s house where she and her mother also stayed at the
time.
She
made a very good impression on the Court. She appeared to be
credible and convincing and there is no reason to doubt her
version
of the events. During cross-examination she reiterated her
version of the facts. Her version was not discredited
by any
material inconsistencies or ambiguities on her part. The double
barrel cross-examination by two different attorneys
did not damage
her credibility, nor did it raise any serious concerns about the
reliability of her evidence.’
[9]
With respect, those words do not convey or
give assurance that the magistrate evaluated the complainant’s
evidence with anything
approaching the carefully critical scrutiny
enjoined in
Manda
,
and the other authoritative judgments that reiterated the principles
therein enunciated. Indeed, it is striking that the
magistrate
did not refer at all to any of the authorities on the application of
the cautionary rule to child witnesses. And
it is significant
that in referring to the judgment in
Sauls
case, which it will be recalled addressed only the cautionary rule in
respect of single witness evidence, the magistrate appears
to have
regarded the observation that the application of the cautionary rule
should not displace the exercise of common sense as
the most
significant part of the dictum. Her statement gives the
unfortunate impression that she may have failed to appreciate
that
the exercise of common sense applies only to
the
product
of an evaluation of the
evidence broadly in accordance with the demanding approach implied in
R v Mokoena
supra; common sense does not displace the cautionary rule itself.
[10]
It is not only the very superficial
reference in the trial court’s judgment to the applicable
principles on the evaluation
of the complainant’s evidence that
is cause for concern, however. As I shall illustrate presently, the
paucity of critical
analysis in the court’s reasoning was also
worrying. The evidence adduced at the trial was summarised in
the judgment
in acceptable detail, but an analysis of it by the court
consistent with the exercise of ‘great caution’ was sadly
lacking. This calls to mind the remarks of Mbatha JA in
the recently reported case of
S v
Oosthuizen and Another
2020 (1) SA 561
(SCA): ‘
It was incumbent upon the
trial court to show that it took into account the necessary caution.
The trial court set out the
evidence in great detail, but nothing
suggests that it was properly evaluated. Regard must be had at
all times to the fact
that the onus to prove the case beyond a
reasonable doubt rests on the state.
’
[7]
[11]
The complainant was born out of wedlock of
a relationship between her mother and a Congolese national. She
lived with her
mother, who was employed as a nursing assistant at an
old age home in Kenilworth. In July 2014, the complainant’s
mother
was a sub-tenant in a two-bedroomed apartment in Elsies River
that was rented by the appellant and his wife. The complainant
and her mother had come there after the mother responded to an
advertisement posted by the appellant and his wife on a notice board
at a nearby shop. The advertised accommodation, which was in
the second bedroom in the apartment, had already been taken
when the
complainant’s mother arrived to ask if she could rent it.
It would seem, however, that the mother was desperate
to find
accommodation at the time, and she prevailed on the appellant and his
wife to allow her to occupy a space in the kitchen
on a temporary
basis while she looked for a more suitable place to live. A
small part of the kitchen was curtained off for
that purpose.
It accommodated only a single bed. The complainant’s
mother worked nightshifts, and the complainant
was therefore on her
own with some of the other occupants of the apartment on most
evenings. The appellant’s wife,
who worked dayshifts,
appears to have helped out with taking care of the complainant in the
evenings and before she went for school
in the mornings.
[12]
The appellant and his wife, who are
Congolese nationals, slept in the main bedroom of the apartment
together with their twin daughters,
who were about 4 years old at the
time. Three young Congolese men rented the other smaller
bedroom.
[13]
The charge sheet did not specify a date,
and alleged merely that the offence had been committed ‘
in
July 2014
’. It emerged in
the evidence that the alleged incident that gave rise to the charge
against the appellant happened
on the evening of Saturday, 19 July
2014. It would seem that it was only during the complainant’s
evidence in
the trial that the appellant was first informed of the
precise date of the alleged incident.
[14]
The complainant testified that on the
evening of 19 July 2014 she and the appellant were watching
television together in the living
room of the apartment. It was
about 10:00 p.m., and the other occupants of the apartment at the
time, being the appellant’s
wife and children and the three
young Congolese men, were asleep in their respective bedrooms.
She said that the appellant
invited her to come and sit on his lap.
According to her, she had often done this before when they watched
television together.
(By the date in issue the complainant and
her mother had been residing in the flat for about two months.)
On this occasion
the appellant slipped his hand into the front of the
tights that she was wearing and felt under her underwear. She
said that
he had ‘rubbed her vagina’. She related
to the court that her mother had taught her the term ‘vagina’,
but it was not canvased with her precisely to which part of her
genital organs she understood it to refer. She testified
that
what the appellant was doing made her feel uncomfortable and she told
him that she wanted to go sleep. The appellant
then let her go
to her bed. She made a first report about the incident to her
mother two days later. I shall consider
the report in some
detail presently.
[15]
It is clear from the record that there was
a lack of clarity in the complainant’s evidence as to precisely
what the appellant
was said to have done in rubbing her vagina, as
she had put it. This is understandable in the testimony of such
a young child.
It was a manifestation of the sort of situation
that has caused judges to remark in a number of reported cases on the
difficulty,
even for experienced practitioners, in leading the
evidence of child witnesses in sexual cases, and the desirability
that this
should be done by appropriately trained and competent
forensic examiners if justice is to be properly served.
[8]
Regrettably, as all too often the case, this did not happen in the
current matter. The quality of the examination and
cross-examination of witnesses by both the prosecutor and the defence
attorneys was poor, sometimes excruciatingly so.
[16]
The critical need for clarity in respect of
this part of the complainant’s evidence bore on the question
whether there had
been ‘sexual penetration’, as defined.
Proving that there had been was central to the state’s ability
to
obtain a conviction on the charge of rape. There was no
alternative charge of ‘sexual assault’, and the charge
sheet did not draw attention to the competent verdicts in terms of
s 261
of the
Criminal Procedure Act 51 of 1977
. The
magistrate also had not confirmed with the appellant or his attorney
at the commencement of the trial that the appellant
was aware of the
competent verdicts.
[9]
[17]
The prosecutor sought to deal with the lack
of clarity in the complainant’s evidence on this crucial
question, albeit only
in re-examination. The prosecutor asked
the complainant to demonstrate with the use of dolls what she alleged
the appellant
had done. This is a method that is frequently
used in cases of this type when the complainant is a young child.
The
difficulty, however, is that neither the magistrate nor the
prosecutor placed on record precisely what the witness demonstrated
using the doll. The relevant part of the transcript reads as
follows:
PROSECUTOR:
OK. [V], can you show us what you mean when you say that [the
appellant] touched between your legs?
---
(indistinct. Mumbling) and he put his finger in.
OK.
Before you put your finger in there, what did you mean when you say
that he touched you between your legs? Where
did he touch you?
Show on the doll ... (intervention)
COURT:
So did he put his finger in? ---Yes.
PROSECUTOR:
OK. Then I have no further questions.
COURT:
Thank you, [V]. Then we’re finished with your evidence.
--- OK.
[18]
Apart from the complainant’s answer
to the magistrate’s leading question, one is left none the
wiser as to whether the
demonstration established that there had been
sexual penetration. And, if the demonstration had established
the point, why
did the court put its question? When
demonstrations and physical gestures are used in the course of
evidence in a trial,
the presiding officer should be astute to ensure
that they are properly described for the record for the purposes of a
possible
appeal. It is unfortunate that that was not done in
the current case. Any doubt to which the omission gives rise
has
to redound to the advantage of the appellant.
[19]
The appellant’s attorney should also
have been afforded the opportunity to further cross-examine the
complainant on what was
new evidence led by the prosecutor in
re-examination. That might have remedied the ambiguity on the
record. Unfortunately,
he was not invited to put any questions
on the demonstration, and his evident ineptness in other respects
that is manifest on the
record
[10]
means that we cannot safely infer from his silence that the
demonstration had established the allegation of penetration.
[20]
It was hardly cause for surprise in the
circumstances that, on appeal, counsel argued, with reference to a
number of passages in
the complainant’s evidence, ‘
that
her repeated references to rubbing, suggest that she is referring to
the external sexual organs – the vulva, including
the labia –
not to the vagina, though she uses that word. One would not
talk about rubbing “in the middle of”
a vagina, but one
would do so in reference to the vulva. It is pretty plain that
when she talks about the accused putting
his finger “in”,
she means “between the legs” or in her underclothes
’.
In my view there is something in the argument; certainly, the lack of
clarity in the complainant’s evidence
means that the argument
cannot be rejected as unfounded.
[21]
A court does not examine the evidence
compartmentally and, if all things had been equal, the medical
evidence that established that
the complainant’s hymen had been
perforated might plausibly have served to assuage any doubts arising
out of the lack of
clarity in her evidence on the issue under
consideration. It is therefore convenient at this stage to move
on to that.
[22]
The complainant was medically examined by a
district surgeon at the Karl Bremer Hospital on the afternoon of 24
July 2014, approximately
four and a half days after the alleged
sexual assault. The only finding of note was that there were
‘
old tears
’
in her hymen. The examining doctor noted the following
conclusions on the J88 medical report form: ‘
Findings
consistent with vaginal penetration in the past
’.
[23]
As to be expected, the doctor was
questioned at the trial about the chronological import of his
conclusions. He said healing
occurred quickly in a young child
and that the tears in the complainant’s hymen could have healed
within a period of between
six and 12 days. He described the
tears as having completely healed. When the doctor gave that
evidence, he was unaware
that the offence was alleged to have been
committed on 19 July. When he was alerted to the fact, he
then said in answer
to an inappropriately leading question: ‘
It’s
five days, but it is still possible. Children tend to heal very
rapidly.
’ I think it would
be fair to say that the doctor’s surprise at learning that the
alleged incident had occurred
so shortly before his examination is
nevertheless discernible in his answer. That impression is
confirmed if regard is had
to his evidence under cross-examination
when he reiterated ‘
... it takes
approximately six to twelve days for injuries to heal in the hymen
... of course it could be more than twelve days
’.
As every lawyer knows, there is a material difference between
‘possibility’ and ‘probability’.
That
which might be possible, might also be improbable.
[24]
The effect of the district surgeon’s
evidence was that it was less than certain, indeed almost improbable,
that the historic
perforation of the complainant’s hymen could
have been related to the incident described by the complainant as
having occurred
on the late evening of 19 July.
[25]
The questionability of the connection
between the old tears found on the complainant’s hymen and any
incident on 19 July 2014
did not arise on the doctor’s evidence
judged alone. There was an indication, after the close of the
state’s
case and before the appellant gave evidence in his
defence, that the appellant’s attorney had obtained
instructions that
the complainant had previously received medical
treatment for a condition that could explain what the district
surgeon had found
when he examined her on 24 July 2014. The
defendant’s attorney asked for the state’s assistance to
investigate
the records at hospitals in the southern Peninsula at
which the complainant may have been treated. The magistrate
appeared
somewhat bemused by the request; the prosecutor distinctly
unreceptive. The manner in which the defendant’s attorney
dealt with the issue showed quite clearly that he was out of his
depth. It emerged only later, after the appellant had been
convicted, when evidence was being adduced in mitigation of sentence,
that the appellant’s wife had ascertained from the
wife of the
complainant’s biological father that the complainant, who used
to spend time at her father’s place of residence
in Kenilworth,
had suffered from a vaginal infection a year or so before the date of
the alleged sexual assault.
[26]
In leading the complainant’s
stepmother’s evidence after the appellant’s conviction,
the defence attorney clearly
appreciated its significance, but it was
equally apparent that he did not understand how he should have dealt
with the belatedly
obtained evidence bearing on the merits of the
charge at the stage when the appellant had already been convicted.
The magistrate
should also have been concerned about the import of
the evidence of the stepmother in relation to the medical evidence
that had
been tendered during the trial; but if she was, she gave no
sign of it. The record gives the impression that the magistrate
considered that the ship had sailed on and that her only remaining
responsibility was the imposition of sentence. That was
true in
a sense because it was not open to the trial court to revisit the
conviction, but that did not relieve it of its overriding
duty, at
all stages of the trial, including an application for leave to
appeal, to strive to see to it that justice was done.
[27]
It seems clear to us that the proper course
for the defence to have adopted when it became apparent that evidence
was available
that might reinforce the doubtfulness of the old tears
on the complainant’s hymen being associated with a sexual
assault
on 19 July was to have signalled its intention to apply for
leave for appeal and to have brought such an application immediately
after the imposition of sentence, coupled with an application for the
new evidence to be heard in terms of
s 309B(5)
of the
Criminal
Procedure Act. If
that had been done, a proper investigation of
the issue would probably have followed; and the resulting evidence on
the merits
would have been put before this court on appeal, together
with the magistrate’s impressions.
[28]
In the context of the defending attorney’s
manifest inadequacies, we consider that the magistrate was under a
duty to have
assisted by pointing out that that was a course to be
considered in the circumstances. It has long been established
that
judges and magistrates are under a duty to ensure that justice
is done by providing appropriately judicious assistance to
unrepresented
accused persons in the presentation of their cases.
The principle expresses an aspect of an unrepresented accused
person’s
fair trial rights, now entrenched by s 35(3) of
the Constitution. In our view, the same applies when it is
apparent
that the quality of an accused person’s legal
representation is obviously lacking. The magistrate might also
have considered
stopping the trial at that stage and sending the
matter on special review in terms of
s 304A(a)
of the
Criminal
Procedure Act.
>
[11]
[29]
The problem arises as to how this court
should deal with the situation at this stage of the proceedings.
It seems to us that
the apparent impingement on the appellant’s
fair trial rights is a factor to be taken into account, together with
other features
of the case to which I shall refer, in assessing
whether we can be satisfied that the appellant’s conviction was
safe or
not. Before the insertion of
s 309B(5)
and (6)
into the
Criminal Procedure Act, the
appellate court would, when it
was apparent that evidence first made available after conviction
might, had it been taken into account,
have led to a different
result, set aside the conviction and sentence and remit the matter to
the trial court to hear the additional
evidence and revisit the
merits. Counsel for the state submitted that if we were
concerned about the effect of the stepmother’s
evidence on the
safeness of the conviction, that was the course we should follow.
The appellant has already been in detention
for more than six years,
however. I therefore think that we should not too readily take
that course without first earnestly
considering whether the appeal
should not succeed on any of the other grounds primarily urged by the
appellant’s counsel.
[30]
I quoted earlier from the magistrate’s
judgment concerning her impression of the complainant as a very good
witness who gave
a simple and unshaken account of the relevant
events. The magistrate found that there were no material
discrepancies in the
child’s evidence, and indeed did not
identify any discrepancies or contradictions in the complainant’s
evidence whatsoever.
These findings give rise for concern in my
view, for they suggest that the magistrate cannot have subjected the
complainant’s
evidence to the critical scrutiny that the proper
application of the cautionary rules required. There were
certainly features
of the complainant’s evidence that were
troubling, and that I would have expected the magistrate to
acknowledge and take
into account in weighing the evidence as a
whole. The judgment makes no mention of them, which suggests
that they were overlooked.
Overlooking them would constitute a
material misdirection by the trial court.
[31]
There was an issue at the trial as to
whether, and if so, to what extent, the complainant’s evidence
had been influenced by
coaching or rehearsal. This is
frequently an important consideration when a young child gives
evidence. The suggestibility
of young children is notorious.
It is a characteristic commonly referred to in the discussions in the
reported cases on the
cautionary rule in respect of the evidence of
child witnesses. In this regard it was striking that the
complainant’s
evidence concerning the content of her report to
her mother did not correspond with the mother’s evidence on the
point.
The complainant described the content of her report in
terms that faithfully rehearsed, almost word for word, her evidence
in chief
in respect of the commission of the alleged offence –
a straightforward relation of the relevant events. The mother’s
evidence on the report suggested that the complainant had been most
reluctant to say what had happened and that the mother had
had to
coax the information out of her, including the identity of the
assailant. The child’s evidence of the report
gave no
indication of this. It suggested that she had reported the
matter to her mother in exactly the same way and in virtually
the
same words as she narrated the events in her evidence in chief.
The disparity between the two witnesses’ evidence
on the point
was a feature of the evidence that could support the appellant’s
contention that the complainant had been coached
in respect of the
evidence that she gave against him. At the very least, it was
something that deserved notice and evaluation
in the trial court’s
judgment if the cautionary rules were assiduously applied, as they
needed to be.
[32]
The mother’s evidence concerning the
manner and content of the report by the complainant suggested that
the complainant had
initially not been forthcoming about who her
abuser had been. I do not think that that is at all unusual in
such cases.
Its significance in a holistic consideration of all
of the evidence in the current case is its tendency to lend credence
to the
testimony of the appellant and one of the other subtenants in
the flat, one C[....], that when the mother initially alleged that
the complainant had been indecently interfered with, she did not
identify the culprit, which she surely would have done if she
had
known who it was at that stage.
[33]
On this subject, it was also significant,
in my view, that C[....] testified that the complainant’s
mother complained on a
Sunday, presumably Sunday, 20 July 2014, that
her daughter had been molested. He remembered the day because
on the relevant
occasion the complainant’s mother had
encountered him and his two friends outside the apartment building
when they were returning
from church. The appellant’s
evidence was that the mother had first made a report to him some time
on Monday, 21 July.
Both witnesses testified that it was only
later on 21 July 2014 that the complainant’s mother first
alleged that the appellant
was the person responsible.
[34]
The magistrate gave no consideration to
this aspect of the evidence, which cast doubt on the state’s
evidence on the circumstances
in which the complainant had identified
her alleged assailant.
[35]
There was no reason to believe that C[....]
was mistaken in his evidence that he had received the report on the
Sunday. The
reliability of his evidence in this regard derives
support from his detailed contextualisation of the event. It
was not suggested
that C[....] had any reason to give a fabricated
account. By all accounts, other than being a fellow Congolese
national,
he had no connection with the appellant or his wife other
than being one of their subtenants for a short period. There
was
nothing to suggest that they were friends. C[....] and his
two roommates had come to the apartment in response to an
advertisement
of accommodation. They stayed there only for two
or three months, and were about to move out at the time when the
complaint
was ventilated.
[36]
There was another aspect of the evidence
concerning the complainant’s report to her mother that exposed
inconsistency that
merited notice and consideration but was notably
overlooked in the trial court’s judgment. During her
evidence in chief
the complainant testified as follows in answer to
the prosecutor’s questions: ‘
Q.
OK. Did you ever tell your mommy what Uncle Didi did to you? –
A. Yes. Q. Can you remember when you told your
mommy what Didi
did to you? – A. I told her two days after.
’
Yet, when the mother was cross-examined about the time between the
alleged incidence and the child’s report
to her concerning it,
she testified ‘
She told me she
can’t remember which day was it, but it was during the school
holidays when I was working night shift.
She can’t
remember which night was it
’.
[37]
The contradictory versions begged the
obvious question - if the mother’s evidence was to be accepted
- just when, and in what
circumstances, did the complainant then
subsequently come to claim, with apparent certainty, that the
incident happened two days
before she reported it to her mother?
On any approach, the mother’s evidence undermined the validity
of the magistrate’s
finding that the complainant’s
evidence, which could not be evaluated properly other than in the
context of all of the other
evidence, had been simple and
consistent. Furthermore, if the child’s relation of the
events had consistently put the
date of the offence as Saturday, 19
July 2014, why was that date not specified in the charge sheet, as is
ordinarily done in compliance
with
s 84(1)
of the
Criminal
Procedure Act?
[38
]
In the context of the unresolved
inconsistency, it is also striking that the examining doctor was not
asked what he had been told
as to the date of the alleged vaginal
penetration. One would imagine, as a matter of inherent
probability, in the context
of the medical evidence that the vestiges
of the tears seen on the complainant’s hymen originated at
least six days before
the date of examination, and probably more,
that the doctor would have enquired of the child or her mother when
the sexual assault
in issue had happened. A failure to have
done so in the circumstances would suggest a startling degree of
indifference by
any medical forensic examiner.
[39]
The J88 report completed by the district
surgeon at the time of his examination was silent on the point, but
that did not necessarily
mean that he had not in fact asked the
obvious questions that I would have expected. He met the
defence attorney’s
attempts to elicit detail concerning what he
had been told when he examined the complainant by saying that he
could not independently
recall but that he may have made some notes
of relevance in the hospital folder, which he offered to retrieve and
return to testify
further on a later occasion if requested.
[40]
It was an aspect of the defence attorney’s
ineptitude that he did not accept the doctor’s offer, but in
the circumstances
the court should have been just as keen to
ascertain clarity on the issue if it could be obtained. The
magistrate or the
prosecutor should have pursued the point.
They did not.
[41]
The failure of anyone concerned to do so
meant that doubt remained on a material question in the case; viz.
the date of the alleged
commission of the offence. The question
was material because it related to the corroborative weight, if any,
of the medical
findings, the reliability of the complainant’s
evidence, and the appellant’s ability to say where he was and
what he
was doing at the time.
[42]
This was not the only feature of the
evidence that called into question the complainant’s
reliability. The complainant
gave evidence in chief that she
had been taken to see the examining doctor two days after her report
to her mother. Under
cross-examination, when she was recalled
at the instance of the appellant’s new attorney,
[12]
she said that she had gone to the doctor on the same day. The
magistrate, apparently astute to the contradiction, intervened
by
asking ‘
Did you go to the doctor
on the same day?
’ The
question elicited yet a further inconsistent answer from the
complainant: ‘
I don’t
remember
’. The magistrate
then made the following remark, inappropriately signalling that no
further questions should be put
on the point: ‘
And
this question was asked and answered previously. She said it
was not on the same day
.’
To which the attorney responded ‘
OK,
Your Worship. I’m going to leave that question.
’
The fact that a question was asked and answered previously is no bar
to it being asked again. A valid reason
to repeat a question is
to see if it elicits a consistent answer; and if it does not, a court
is bound to consider the significance
of the inconsistency. The
appellant’s attorney may have been ill-advised to have left the
question; and the magistrate
was certainly wrong to have put him
under pressure to do so.
[43]
As mentioned, the evidence identifying the
date upon which the sexual assault is alleged to have occurred
emerged only during the
complainant’s testimony at the trial.
I find it significant that as soon as it did, the appellant thought
that his
work records might provide him with an alibi. He had
been employed until sometime in July 2014 as a guard working
nightshifts.
An adjournment was requested for the records to be
checked. It turned out that they were of no assistance because
he had
already been retrenched by the date in question. It has
to be borne in mind that the appellant had already been in custody
for more than eight months by this stage, and it is quite feasible
that he would no longer recall exactly which date in July had
been
his last in employment. But the very fact that, when given the
date of the offence for the first time, he wanted to
have it checked
against his work records does not impress as likely conduct by a
guilty person. A guilty person, obviously
therefore knowing
what had happened and when, is unlikely to have thought that there
could be any profit in the exercise.
[44]
It is an aspect of the case that does not
appear to have made an impression on the magistrate. On the
contrary, the magistrate
seemed to regard the appellant’s
uncertainty about the date of the alleged commission as factor that
counted against him.
Thus, at one point of the judgment she
said ‘
The accused and his wife
Ruth denied that he had ever watched television alone with
[V]
at night, but it is clear from their
evidence that they did not know to which specific night
[V]
referred.
[V]
or
[the complainant’s mother]
never
testified that it was the night before the school opened as the
accused and his wife apparently assumed
.’
An incorrect assumption as to the night concerned is surely more
likely to be made by someone who had not been involved
than by
someone who knew what had happened. That clearly escaped the
magistrate.
[45]
It does seem probable that the
complainant’s mother genuinely believed that her daughter had
been sexually abused. That
perception is borne out by the fact
that she went to the police with the complainant on 21 July and
returned there three days later
on 24 July when there had been
no follow up by the police. However, in the context of the
uncertainty about precisely
when, and in what circumstances, the
complainant had identified the appellant as her abuser, it was
relevant for the trial court
to have regard to the history of
interpersonal problems between the complainant’s mother and the
appellant. That there
had been problems was borne out by the
evidence of the complainant, the appellant, the latter’s wife
and C[....]. The
complainant’s mother, on the other hand,
denied that there had been anything untoward in relations between
herself and the
appellant.
[46]
C[....]’s evidence bore out the
appellant’s testimony that the complainant’s mother
initially did not claim to
know who had interfered with her
daughter. C[....]’s evidence, which could not be rejected
out of hand, indicated that
that had been the case since some time on
the Sunday. The evidence of both C[....] and the appellant
indicated that it was
only late on the Monday that the mother accused
the appellant of being the culprit. All of that, taken together
with the
inconsistencies between the evidence of the complainant and
her mother about the nature and content of the report allegedly first
made by the complainant after school on the Monday, raises question
marks about how the appellant came to be identified as the
assailant.
[47]
It is not farfetched, if she had been
uncertain who was involved, that the tense relations between the
complainant’s mother
and the appellant could possibly have
influenced the former to suggest to the complainant who her abuser
might have been, or determine,
herself, that it was the appellant who
should be blamed. Notwithstanding that these were issues in the
trial, the magistrate
did not deal in her judgment with these
evidential considerations and the bearing they had on the possibility
of a false or unjustified
accusation. Without any consideration
of the factors to which I have drawn attention, she merely dismissed
the possibility
as ‘highly improbable’.
[48]
The magistrate also did not consider the
implications arising from the evidence that the complainant’s
mother had suggested
that she would withdraw the charge if the
appellant gave her his television, cell phone and some money.
C[....] confirmed
that he had been asked to convey the proposal to
the appellant. The complainant’s mother denied any such
conduct, but
there must have been something in it because the mother
admitted that she had told the appellant’s wife ‘
nothing
what your husband did to my daughter will make a difference, because
he did something wrong and the TV is your daughter’s
pleasure.
They’re watching every day TV. Why will I take the TV
from your daughter?
’
[49]
The complainant’s mother alleged that
the appellant’s friends had recommended that he should put up
the extortion story
to the police to ‘confuse the case’.
But the police were not yet involved at the time the proposal was
conveyed.
They had not yet acted on the report made on 21 July,
and only did so when the complainant’s mother further pursued
the matter on 24 July. And if the idea came as a
suggestion from the appellant’s unidentified friends, how did
the appellant’s wife come to understand that the proposal had
in fact been made by the complainant’s mother?
It could
only be in response to an accusation by the appellant’s wife
that she was trying to extort the handing over of the
television set
that the complainant’s mother could have said what she said
that she did to the appellant’s wife; ‘
why
will I take the TV from your daughter?
’.
If there was a reasonable possibility that the evidence concerning
the extortion was true, the possibility, discussed
above, that the
mother may have falsely identified the appellant becomes stronger;
and so also the scope for reasonable doubt.
[50]
Having recorded her satisfaction with the
complainant’s evidence, the magistrate proceeded to refer to a
number of aspects
in which she found the evidence of the appellant
and the defence witnesses to be unsatisfactory. My impression
is that the
trial court’s approach in this regard was
misdirectedly compartmentalised, and not even-handed.
[51]
There were inconsistencies and internal
contradictions in both the state’s and the defence’s
cases. Whereas an
explanation for some of the weaknesses in the
complainant’s evidence might justifiably have been found in her
tender age,
so might some of the apparent contradictions and
inconsistencies in the defence case be explicable due to the passage
of time and
the different perspectives obtained by virtue of each of
the three defence witnesses’ quite discrete involvements in,
and
exposures to, the factual events. C[....], for example,
gave evidence on 1 March 2016, approaching two years after the
relevant
events. That the defence witnesses’ versions
should not be entirely consistent was understandable in the
circumstances
and even gave a measure of assurance that the defence
case was not a choreographed fabrication.
[52]
What is notable about the trial court’s
judgment, however, is that whilst the magistrate was at pains to
point to the inconsistencies
in the defence evidence, she turned a
blind eye to those in the state’s case.
[53]
As I have sought to illustrate, the
magistrate was wrong in her assessment that the complainant’s
evidence was consistent
in all material respects. She also
failed to recognise the very tenuous corroborative significance of
the medical evidence
tendered by the prosecution. And she did not
give a persuasive explanation of how she could reject the appellant’s
denial
of guilt as not being reasonably possibly true.
[54]
In my judgment, the combined effect of the
trial court’s failure to properly apply the applicable
cautionary rules, the demonstrated
unreliability of the complainant’s
evidence in certain material respects, the tenuous nature of the
corroborative medical
evidence, the failure to deal appropriately
with the point of enquiry concerning the complainant’s medical
history raised
by the belatedly given evidence of the complainant’s
stepmother, and the reasonable possibility of there having been a
false
accusation raises a reasonable doubt as to the appellant’s
guilt and the safeness of his conviction. Having regard to
the
incidence of the onus, the appellant is entitled to the benefit of
that doubt.
[55]
In the result, the following order is made:
1.
The appeal is upheld.
2.
The appellant’s conviction and
sentence are set aside and the trial court’s orders in those
respects are substituted
with an order that the appellant is
acquitted and discharged.
BINNS-WARD,
J
GOLIATH,
DJP
APPEARANCES
Appellant’s
counsel:
A.A. Brink
Appellant’s
attorneys:
Van Eeden Beirowski Inc.
Goodwood
Respondent’s
counsel:
M.O. Julius
Office of the Director of Public Prosecutions,
Western Cape.
Cape Town
[1]
At p.162
in fine
.
[2]
At p. 163C-F.
[3]
Also reported in the SALR as
S
v J
1998 (2) SA 984 (SCA).
[4]
At para 9.
[5]
At p. 180E-H.
[6]
In para 6.
[7]
At para 17.
[8]
See, for example,
Director
of Public Prosecutions, Transvaal v Minister for Justice and
Constitutional Development and Others
[2009] ZACC 8
;
2009 (4) SA 222
(CC);
2009 (2) SACR 130
;
2009 (7)
BCLR 637
at para. 104 and
S v Vilakazi
[2008] ZASCA 87
;
[2008] 4 All SA 396
(SCA);
2009 (1) SACR 552
;
2012
(6) SA 353
, at para. 21.
[9]
In
S v Mashinni &
another
2012 (1) SACR 604
(SCA) at
para 11, Mhlantla JA observed ‘
Section
35(3)(a) of the Constitution provides that very accused person has a
right to a fair trial which, inter alia, includes
the right to be
informed of the charge with sufficient detail to answer it.
This section appears to me to be central to
the notion of a fair
trial. It requires in clear terms that, before a trial can
start, every accused person must be fully
and clearly informed of
the specific charge(s) which he or she faces. Evidently, this
would include all competent verdicts.
The clear objective is
to ensure that the charge is sufficiently detailed and clear to an
extent where an accused person is able
to respond and, importantly,
to defend himself or herself. In my view, this is intended to
avoid trials by ambush.
’
[10]
The appellant’s counsel
(who
did not appear in the trial and was instructed pro bono by a
different attorney in the appeal)
did not
challenge the fairness of the appellant’s trial on account of
the ineptitude of the legal aid funded representation
that he had
been afforded at the trial. This was understandable because
the bar for success in such challenges is set very
high. But
counsel did make several references to the attorney’s
ineptitude in his address to the magistrate in support
of the
application for leave to appeal. I am inclined to the view
that there was some substance to his observation in replying
argument to the magistrate that ‘[t]
his
accused did not have a fair share when it comes to legal
representation. It was not a good job done here. And
he
was understandably reluctant to go the Legal Aid route again.
It is not easy to find people to do pro bono matters.
Mr van Eeden
is doing a pro bono, I am doing a pro bono. It is not easy to
find people willing to do it.
’
[11]
Section 304A(a) provides: ‘
If
a magistrate or regional magistrate after conviction but before
sentence is of the opinion that the proceedings in respect
of which
he brought in a conviction are not in accordance with justice, or
that doubt exists whether the proceedings are in accordance
with
justice, he shall, without sentencing the accused, record the
reasons for his opinion and transmit them, together with the
record
of the proceedings, to the registrar of the provincial division
having jurisdiction, and such registrar shall, as soon
as is
practicable, lay the same for review in chambers before a judge, who
shall have the same powers in respect of such proceedings
as if the
record thereof had been laid before him in terms of section 303
’
.
[12]
The mandate of the appellant’s first
attorney was terminated after the complainant’s mother, who
was the second witness
for the state after the complainant, had
completed her evidence in chief.