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[2016] ZASCA 103
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Vilakazi v S (636/2015) [2016] ZASCA 103; 2016 (2) SACR 365 (SCA) (10 June 2016)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
No: 636/2015
In
the matter between:
VUSI
SAMUEL VILAKAZI
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
Citation:
Vilakazi
v The State
(636/2015)
[2015] ZASCA 103
(10 June 2016)
Coram:
Mhlantla, Shongwe,
Theron, Dambuza and Mathopo JJA
Heard:
5
November 2015
Delivered:
10 June 2016
Summary:
Criminal Law –
Evidence of young children in sexual assault cases –
imperfections in evidence not necessarily fatal
– evidence to
be considered carefully and holistically to determine
trustworthiness.
ORDER
On
appeal from:
North
Gauteng Division of the High Court, Pretoria (Mavundla and Potterill
JJ, majority, and Makgoka, minority, sitting as a court
of appeal):
The
appeal is dismissed.
JUDGMENT
Dambuza
JA (Shongwe, Theron and Mathopo JJA concurring):
[1]
On 10 May 2004 the 36 year old appellant was convicted by the Delmas
Regional Court of raping the complainant, a 12 year old
girl. The
matter was then referred to the North Gauteng High Court (Delmas
Circuit) for confirmation of conviction and for
sentencing
in terms of s 52(1)
(b)
of the Criminal Law Amendment Act 105 of 1997 (the Act) prior to its
amendment. The high court, per Rabie J, confirmed the conviction.
That court found that there were no substantial and compelling
circumstances attendant in the case and it imposed the minimum
sentence of life imprisonment. The appellant appealed to the full
court of the North Gauteng High Court which confirmed the conviction
(Mavundla and Potterill JJ, with (Makgoka J dissenting) and altered
the sentence to one of 18 years’ imprisonment. This appeal
against the conviction is with the special leave of this court.
[2]
At the trial it was common cause that the report about the rape was
made by the complainant pursuant to her mother having confronted
her
and given her a hiding. The mother had noticed that the complainant
was walking with discomfort. On inquiring from her as to
what was
wrong the complainant replied that she had a wound on her foot. On
inspection the mother observed that the wound that
the complainant
referred to was too small to cause the discomfort that she had
observed. She then gave the complainant a hiding
(
pakslae
gegee
).
The complainant then told her that the appellant had had sexual
intercourse with her.
[3]
The appellant and the complainant’s mother had known each other
for about four years prior to the incident. The appellant
lived with
a neighbour, Mr Nhleko, a religious leader. He and the complainant’s
mother were relatively close acquaintances
or even friends. He often
visited the complainant’s home and he and the complainant’s
mother would smoke together.
Sometimes they would ‘go away’
together and ‘drink tea’ together, as the complainant
testified.
[4]
On receiving the report of the rape from the complainant, the
complainant’s mother went to confront the appellant. The
appellant and Mr and Mrs Nhleko then went to the complainant’s
home and the matter was discussed. During the discussions
the
appellant denied the allegations.
[5]
The complainant was taken to the hospital and examined by a medical
doctor. Although the J88 medico legal report is not part
of the
record before us, it was admitted into evidence and it was common
cause at the trial that the complainant had indeed been
sexually
penetrated. The doctor had recorded in the report that the history
given was that the last incident of rape was about
four weeks prior
to the medical examination.
[6]
The complainant, who was still 12 years old at the time of the trial,
gave evidence of both a general nature, relating to many
incidents of
rape, and of a specific incident of sexual intercourse between the
appellant and herself. She testified that during
March 2003 the
appellant had had sexual intercourse with her ten times at her home.
This would be either in the late afternoon
after she came back from
school, or in the evening when her mother would not be at home. Her
four year old sister would be present
in the house
[1]
.
The appellant would tell the younger sister to go and sleep.
[7]
On a specific occasion the appellant came to her home whilst the
complainant and her younger sister were alone at home. They
were
sitting in the dining room. The appellant ordered the younger sister
to go and sleep. He then told the complainant to switch
off the
lights; thereafter he started fondling the complainant while the
latter was sitting on a sofa. He took off her underwear,
told her to
lie down, undressed himself and had sexual intercourse with her. He
told her to go and have a bath which she did. He
also gave her R2 and
warned her not to tell anyone about what had happened, threatening to
slaughter her and throw her body in
a dark forest if she did.
[8]
The complainant’s younger sister also gave evidence. In her
brief evidence she related an incident in which the complainant
was
made to lie on a sofa by the appellant. This was after the appellant
had told her to go and sleep. From the other room she
‘peeked’
and saw the appellant ‘lying on top of the complainant’.
She heard the complainant cry.
[9]
The appellant’s defence was a bare denial. He testified that he
had left the township in which he resided with the Nhleko
family
sometime in February 2003 and returned during March 2003 when he
started working on a building project. Out of the blue
he was accused
of having raped the complainant.
[10]
According to the appellant a discussion ensued between himself, the
complainant’s mother and Mr Nhleko following the
accusations.
During that discussion the complainant’s mother told Mr Nhleko
about a boy called Sam who had been visiting
the complainant at her
home in the mother’s absence. She also revealed that she had
told the complainant that she did not
want to see Sam at her home.
According to the appellant the complainant’s mother also said
that if the doctor found that
Sam had raped her daughter, she would
kill Sam with an axe.
[11]
Mr Nhleko confirmed that the complainant’s mother did report
the rape to him. His evidence was that on hearing the allegation
he
asked the complainant’s mother how the appellant could have
raped the complainant as he (the appellant) had been at KwaThema
during February. The mother’s response was to tell him about
Sam’s suspicious visits to her house and her chasing him
away
from the house when she returned from work. According to Mr Nhleko
the mother told him that she intended to take the complainant
to a
doctor for examination to find out what Sam had done to her.
[12]
In this appeal the appellant contended that the courts below erred in
convicting him as the State had not proved
beyond
reasonable doubt
that
he had raped the complainant. The submission was that the cautionary
rules were not applied when considering the evidence of
the
complainant. It was further contended that the complainant’s
cryptic evidence contained contradictions and improbabilities
which
rendered it unsatisfactory in material respects. It was also
submitted on behalf of the appellant that his evidence was wrongly
rejected. More specifically, the submission was that the magistrate
misdirected himself in admitting the report of the rape which
was
elicited from the complainant by force and he (the magistrate) did
not consider the complainant’s evidence with the necessary
caution. The contention was that the evidence of the complainant, her
sister and her mother was unreliable; that their version
was
improbable and that they contradicted themselves and each other on
material aspects. The complainant’s ‘dispassionate’
demeanour belied the traumatic experience she claimed to have
endured, so the argument went.
[13]
This argument found favour with Makgoka J and forms the essence of
his dissenting judgment in the court a quo. On the other
hand, the
majority view was that the contradictions were not material and that
the magistrate’s credibility findings were
correct. The learned
judges were satisfied that even though the complainant was a young
single witness, her evidence found support
in the medico legal report
and the evidence of her sister.
[14]
The submissions on the impropriety of admitting the complaint are
based on
S v T
1963 (1) 484 (A) at 487. In that case the
complainant’s mother had threatened the complainant with a
stick as a result of
which the complainant reported that her step
father had had sexual intercourse with her. The court considered a
number of English
authorities and concluded that the inference to be
drawn from them was that a complaint will not be admissible if it is
made as
a result of intimidation. However, the court held that the
central question was whether a failure of justice has resulted from
the wrongful admission of the complaint. Hoexter JA held (at 487F)
that:
‘
The
test to be applied is whether a trial court hearing all the evidence
but refusing to admit the complaint, would inevitably have
convicted
the appellant’
.
Put
differently, where no voluntary report of rape was made the court
must determine whether the evidence (excluding the report
obtained by
coercion) proves the charge of rape against an accused beyond
reasonable doubt.
[15]
It is my view that our courts have not considered the lack of
evidence of a voluntary complaint (also referred to as a ‘first
report’) to be fatal to a charge of rape. In this regard,
Milton
[2]
,
in South African Criminal Law and Procedure, says:
‘
It
is not mandatory that there should be evidence that the woman has
complained that she has been raped. However, if she has, such
complaint is admitted in evidence to show consistency and to negative
a defence of consent, but not as proof of their contents
nor to
corroborate the complainant. But it is not essential that consent
should be in issue; the complainant may, for instance,
be a girl of
under 12 years of age.
The
purpose of admitting evidence of a complaint is that it serves to
rebut any suspicion that the woman has lied about being raped.
The
corollary is, of course, that should a woman not complain, or not
complain timeously, the conclusion may be drawn that she
is lying in
her evidence that she was raped. The conclusion may well be unfair to
the victim, since women may hesitate to complain
of rape for reasons
of shame, embarrassment or fear.
’
[16]
Indeed where, such as in this case, the ‘first report’ of
rape resulted from intimidation, it cannot constitute
evidence of a
voluntary or spontaneous first complaint. But that does not render
incomplete or insufficient the evidence led at
a consequent trial.
And the fact that there was coercion is not, on its own, an
indication that the allegation of rape is a fabrication.
The court
must consider whether the rest of the evidence proves the charge of
rape beyond reasonable doubt.
[17]
In this case I am satisfied that even if the evidence of the
complaint is excluded, on a holistic consideration of the evidence,
the appellant’s guilt was proved beyond reasonable doubt. I
agree that the evidence of the complainant had to be considered
carefully. She was a young child and her complaint had not been made
voluntarily. I am satisfied that both the trial court and
the high
court were alive to this fact. Medical evidence confirmed that the
complainant had been sexually penetrated. According
to her the last
incident of sexual intercourse had taken place on the day before the
medical examination. The doctor recorded that
the gynaecological
examination was painful. The contention, on behalf of the appellant,
that she could have been ‘malingering’
(the pain) is
without merit. Furthermore, the submission that she misled the doctor
regarding the date of the last incident of
sexual intercourse in
order to avoid DNA-testing and to protect the true perpetrator, is
farfetched.
[3]
[18]
The fact that there were contradictions in the evidence of the
complainant does not necessarily mean that her evidence is
unreliable. In
Woji v Sanlam Insurance Co Ltd
1981 (1) SA 1020
(A) Diemont JA provided a helpful guide to approaching the evidence
of young children. The guide highlights, as the focal point,
the
trustworthiness of the evidence. At 1028A-E of the judgment the
learned judge said:
‘
The
question which the trial Court must ask itself is whether the young
witness’ evidence is trustworthy. Trustworthiness,
as is
pointed out by Wigmore in his
Code
of Evidence
para 568 at 128, depends on factors such as the child’s power
of observation, his power of recollection, and his power of
narration
on the specific matter to be testified. In each instance the capacity
of the particular child is to be investigated.
His capacity of
observation will depend on whether he appears “intelligent
enough to observe”. Whether he has the capacity
of recollection
will depend again on whether he has 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” (Wigmore on
Evidence
vol II para 506 at 596). There are other factors as well which the
Court will take into account in assessing the child’s
trustworthiness in the witness-box. Does he appear to be honest –
is there a consciousness of the duty to speak the truth?
Then also
“the nature of the evidence given by the child may be of a
simple kind and may relate to a subject-matter clearly
within the
field of its understanding and interest and the circumstances may be
such as practically to exclude the risks arising
from suggestibility”
(
per
SCHREINER JA in
R
v Manda
[1951
(3) SA 158
(A)]). At the same time the danger of believing a child
where evidence stands alone must not be underrated.’
[19]
The complainant’s version was criticised because of her failure
to report the sexual abuse at the first available opportunity
or
voluntarily, allowing the appellant to repeatedly come into her home
although she claimed to be scared of him, and her sister’s
evidence that she peeked and saw what was going on, whereas,
according to the complainant, the lights were usually switched off.
Firstly, as Milton states, reluctance on the part of rape survivors,
or some of them, to report the rape at the first opportunity
is a
firmly recognised fact. It is also generally accepted that with young
children the reluctance is compounded. In this case
the complainant
testified that she was afraid of the appellant. I am persuaded that
the prospect of accusing her mother’s
friend who used to assist
her in her studies must have compounded the fear. In response to
questions as to why he allowed the appellant
to come into the house
she explained: ‘I wouldn’t ask who was knocking’;
‘it was during the day and my
mother told us that we can only
ask during the evening who was knocking’ and ‘I would
only say “come in”
and the person [would] come in’
were spontaneous and have a ring in them. Further there is no basis
for a finding that the
complainant and her sister, who knew the
appellant well, colluded to protect the perpetrator and falsely
implicate the appellant.
Both the complainant and her younger sister
emphatically denied that Sam ever did anything to the complainant.
[20]
The complainant did not exaggerate the appellant’s conduct.
When she was asked if the appellant had sexual intercourse
with her
every time he visited, her response was that sometimes he would find
her mother at home and would just ‘have tea’
with the
mother. The evidence of the younger sister was also simple and
consistent with her age. She was persistent that the appellant
had
done ‘silly things’ to the complainant. She testified
that she saw the appellant ‘on top of [her] sister’.
There is no basis for a finding that she had been coached into
falsely implicating the appellant.
[21]
A further leg on which the appeal stands is the failure by the state
to set out, in the charge sheet, specific date(s) on which
the
incident(s) referred to happened. The charge sheet referred to sexual
intercourse between the appellant and the complainant
as having
occurred in March 2003. Although the complaint’s evidence
related to both a general conduct and a specific incident
it is clear
from the charge sheet that the appellant was charged with rape of a
12 year old child that happened in about March
2003. Section 84(1) of
the Criminal Procedure Act 51 of 1977 (CPA) provides that a charge
must set forth the relevant offence in
such a manner and with such
particulars as to the time and place at which the offence is alleged
to have been committed as may
be reasonably required to enable the
accused to plead. But if the time when the offence occurred is not a
material element of the
offence, a failure to specify the time does
not render the charge defective. In this case the appellant knew in
no uncertain terms
what case he had to respond to.
[4]
In the
Commentary
on the
Criminal Procedure Act
the writers Du Toit
et
al
at
14-37, say:
‘
An
accused who wishes to raise an alibi will not necessarily be
prejudiced by the fact that the charge only mentions a period during
which an offence was allegedly committed, nor by the State’s
inability to provide further particulars in respect of the dates.
If
such uncertainty will in fact hamper him in his defence, he may
reserve his cross examination of State witnesses until after
completion of the State case and then apply for an adjournment to
prepare . . .
’
[22]
The appellant’s version was inconsistent and not reasonably
possibly true. In his plea-explanation he suggested that
the false
accusations were an act of revenge by the complainant because he had
scolded her for having taken her younger sister
to town, thus
exposing her to the dangers of busy traffic. According to the
appellant the allegations of rape surfaced a day after
he had scolded
the complainant. When this was put to the complainant, she disputed
it. She admitted the incident in which her younger
sister was nearly
run over by a truck, but she said that the appellant was not present
at that incident; her father was. Significantly,
the appellant gave
no evidence about the incident which, according to his plea
explanation, resulted in the complainant’s
vengeful
allegations. He also said nothing in his evidence about his suspicion
that the charges were motivated by revenge. More
significantly, this
suggested motive for false accusation was never put to the
complainant’s mother; neither was it put to
her that the
appellant had been away from ‘home’ from February to
March.
[23]
Further, the detailed version that the complainant’s mother
suspected Sam and had threatened to kill him with an axe,
were never
put to her. It was also never put to the complainant. All that the
complainant’s mother was asked was whether
her daughter had
ever told her about something that had happened with Sam. She replied
that the complainant had told her that Sam
had not done anything to
her. The complainant was asked, during cross-examination, if Sam ever
did ‘silly things’ to
her. She replied in the negative.
The younger sister’s reply to a similar question was that Sam
never did ‘silly things’
to her sister, and that it was
the appellant who had done so. My view is that both the motive
suggested in the plea-explanation
and the detailed evidence relating
to the mother’s suspicion about Sam were a fabrication. A
further instance of fabrication
was the allegation by the appellant
that the complainant’s mother had asked Mr Nhleko for a bribe
in exchange for withdrawal
of the charge against the appellant. When
Mr Nhleko testified the appellant tried to ‘remind’ him
of the alleged demand
for a bribe by the complainant’s mother.
However, Mr Nhleko denied knowledge of thereof. Yet again, the
allegation of a bribe
extortion was never put to the complainant’s
mother. The fact that Mr Nhleko, from whom the bribe was allegedly
extorted,
knew nothing about it, showed the extent to which the
appellant was prepared to lie to refute the allegations against him.
A court
is entitled to take into account the falsity by the appellant
to show that the child’s evidence is unquestionably true,
whilst
the defence version, on the other hand, is false.
[5]
[24]
In the end the evidence of the complainant, that of her sister and
the contents of the medical report proved the charge against
the
accused. I am satisfied that on a holistic evaluation of the evidence
the guilt of the appellant was established beyond reasonable
doubt.
Consequently, the appeal is dismissed.
______________________
N
Dambuza
Judge
of Appeal
Mhlantla
JA
[25]
I have had the benefit of reading the judgment of Dambuza JA and
regret that I cannot agree with her reasoning and conclusion
that the
appeal should be dismissed. My reasons for my disagreement are set
out below.
[26]
In considering the case of alleged sexual assault, it necessary to
record that, persons, especially children, who allege that
they were
victims of sexual offence, should be treated with care and
consideration. In
S
v
Vilakazi
[6]
,
this court said the following:
‘
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.’
[27]
In
Director
of Public Prosecutions, Transvaal
v
Minister
of Justice and
Constitutional
Development
[7]
,
the Constitutional Court said:
‘
Courts
are now obliged to give consideration to the effect that their
decisions will have on the rights and interests of the child.
The
legal and judicial process must always be child-sensitive.’
[28]
Having said that, it must be borne in mind that the fundamental
principle of our law is that in a criminal trial, the State
or
prosecution has a duty to prove the guilt of an accused beyond
reasonable doubt. The background facts in this matter have been
set
out by my colleague and I do not intend to repeat these. The
difference between us lies with the manner in which the first
report
was dealt with and the treatment of the evidence as a whole including
the medical evidence.
[29]
A complaint is not admissible if it is made as a result of
intimidation
[8]
.
In
S
v
MG
[9]
,
a complaint was held to be inadmissible because the complainant, who
was 12 years old at the time, had made it after she had been
intimidated and threatened by her mother. In
S
v
G
S
[10]
,
the complainant made a report after being confronted by her mother
about her whereabouts. The court concluded that the complaint
was
inadmissible as there was a real suspicion that the complaint was
made to deflect the anger of the complainant’s mother.
My
colleague’s view is that this principle should be revisited and
that each case should be considered on its merits. Whilst
there may
be some merit in her concerns, I am of the view that where a
complaint has been induced by intimidation, a court has
a duty to
consider that evidence and pronounce on the admissibility thereof.
[30]
In this case, the circumstances in which the complaint was made are
more serious than those mentioned in the cases referred
to in para 5
above. In this case, the mother subjected the complainant to an
interrogation and when the latter failed to provide
a satisfactory
report, the mother gave the child a hiding and insisted that she
tells the truth. It was at that stage that the
complainant provided
the identification of the appellant as the person who had raped her.
It seems to me that one cannot exclude
a possibility that the
complainant made the report of the identification of the person who
raped her in an attempt to save herself
from any further hiding. In
the light of these factors, the report was wrongly admitted by the
trial court and should have been
ruled inadmissible.
[31]
The question that has to be determined is: did the admission of this
evidence bring about a failure of justice? The test to
be applied was
formulated in
S
v
T
[11]
as follows:
‘
The
question remains whether a failure of justice has resulted from the
wrongful admission of the complaint. The test to be applied
is
whether a trial court hearing all the evidence but refusing to admit
the complaint, would inevitably have convicted the appellant.’
[32]
It is therefore necessary to consider the evidence in totality. The
first aspect that I wish deal with relates to the formulation
of the
charge sheet which referred to the incident as having taken place
during March 2003. I agree with my colleague that a failure
to
specify the time will not render the charge defective if the time of
the offence is not a material element of the offence. However,
the
circumstances of this case are somewhat different and in my view, the
State had a duty to provide a charge sheet that was more
specific as
to time to enable the accused to know what case he had to meet for
the following reasons: First, the complainant initially
testified
that all the rapes occurred in March. When questioned by the regional
magistrate, she testified that only five occurred
in March but she
did not remember the months when the others occurred. One has to
contrast the complainant’s testimony with
the evidence of her
mother who testified that it was on 25 March 2016 when she noticed
that something was wrong with her daughter.
She testified that the
complainant had told her that the rapes began in February. Secondly
the examination by the medical doctor
was conducted on 26 March and
it was noted in the report that the last rape incident occurred three
weeks before the examination.
The conclusion was that the complainant
had been penetrated several times. The mother denied conveying this
information to the
doctor. In contrast, the complainant testified
that the last incident occurred a day before the examination.
Unfortunately the
doctor did not testify to clarify the aspect
relating to the source of the information in his report.
[33]
Another unsettling feature is the conduct of the mother. My
colleague has concluded that the mother’s suspicion
about Sam
was fabrication by the defence. I disagree. The complainant’s
mother during her evidence admitted that she had
asked the
complainant whether ‘a certain Sam’ had committed the
offences, to which the complainant had replied in the
negative. It
appears from the record that this person ‘Sam’ does exist
and is known by all the parties. The question
to be asked is why
would she ask the complainant about Sam, if she did not harbour any
suspicions about Sam’s possible involvement?
This aspect was
crucial and the prosecutor did not pursue it.
[34]
This then leaves the evidence of the complainant’s younger
sister who was either four or five years old at the time of
the
incident. She is supposed to have witnessed an incident that occurred
at night, where she was instructed by the appellant to
leave the
dining room and where the complainant was instructed to switch off
the light. According to her, she ‘peeked’
and saw the
appellant on top of the complainant. The sister did not provide any
particularity as to how she was able to observe
what transpired in
the dark dining room from her position. It is not clear how she would
have managed to see what was happening
in that room whilst it was
dark. This evidence was readily accepted by the trial court without
any further interrogation.
[35]
On the other hand, the appellant denied his guilt. In his plea
explanation, he stated he was falsely accused because he had
in the
past scolded the complainant. During his testimony, he inter-alia,
referred to an incident where he had scolded the complainant
after
she had taken the children to town. He also suggested that a certain
person known as Sam was the perpetrator. In this regard,
he testified
that the complainant’s mother also suspected this Sam. The
appellant further raised an alibi defence. This defence
was
introduced during his testimony and was never put to the witnesses.
Regarding his alibi, he testified that between 21 February
until 16
March 2003 he had worked in Kwa-Thema, Springs. His testimony in this
regard was corroborated by Mr Nhleko, the defence
witness, who
testified that when the complainant’s mother advised him of the
allegation, he had immediately enquired from
her how it would have
been possible for the appellant to commit these offences when he had
been miles away from Delmas. It is so
that his alibi was not put to
the State witnesses. The State could have applied for the reopening
of its case and recall the complainant
to rebut that evidence. This
was not done. The alibi as well as the other evidence was rejected by
the trial court as a fabrication.
In my view, there was nothing
improbable in the alibi defence. I accept that there were some
unsatisfactory aspects of the appellant’s
evidence and in
particular, the allegation that the complainant’s mother
attempted to solicit a bribe from Mr Nhleko.
[36]
There is one aspect that I am constrained to address and this relates
to the conduct of the regional magistrate during the
trial. He
readily accepted the complainant’s evidence notwithstanding the
contradictions inherent in her testimony. Furthermore,
he made
complimentary remarks about the complainant’s younger sister at
the end of her testimony. He repeated this at the
end of the mother’s
testimony. A judicial officer should avoid making remarks about a
witness during the trial. That should
be done at the end of the trial
and during judgment.
[37]
In the light of these factors, and having regard to the
unsatisfactory aspects of the State’s evidence referred to
above,
I am not persuaded that the State discharged the onus of
proving the guilt of the appellant beyond any reasonable doubt.
[38]
In the result, I would have upheld the appeal against conviction.
_________________
NZ
MHLANTLA
JUDGE
OF APPEAL
Appearances:
For
the Appellant:
H L Alberts
Instructed by:
Pretoria Justice
Centre, Pretoria
Bloemfontein
Justice Centre, Bloemfontein
For
the Respondent:
C P Harmzen
Instructed by:
Director of Public
Prosecutions, Pretoria
Director of Public
Prosecutions, Bloemfontein
[1]
In parts of the
record the age of the younger sister is recorded as five years.
[2]
Milton J R L
South
African Criminal Law and Procedure
Vol II; 3 ed at 461.
[3]
It was recorded in
the J88 medico legal report that the last incident was about three
weeks prior to the examination. The complainant
and her mother
stated that that information did not come from them.
[4]
S v Hugo
1976 (4) SA 536
(SCA) at 540E.
[5]
Zeffert &
Paizes op cit at 973.
[6]
S
v
Vilakazi
2009 (1) SACR 552
(SCA) para 21.
[7]
Director of
Public Prosecutions,
Transvaal
v
Minister
of Justice and
Constitutional
Development & Others
2009 (4) SA 222
(CC) at para 74.
[8]
S
v
T
1963 (1) SA 484
(A) at 486H to 487D.
[9]
S
v
MG
2010 (2) SACR 66
at 73.
[10]
S
v
GS
2010 (2) SACR 467
(SCA) paras 23 and 24.
[11]
A
t
487F.