About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2016
>>
[2016] ZASCA 133
|
|
Jansen v S (236/2015) [2016] ZASCA 133 (29 August 2016)
SUPREME
COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
No: 236/2015
In
the matter between:
CORNELIUS
MARTHINUS JANSEN
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Jansen
v
The
State
(236/2015)
[2016] ZASCA (133) (29 September 2016).
Coram:
Tshiqi,
Seriti, Saldulker and Mathopo JJA and Fourie AJA
Heard:
24 August 2016
Delivered:
29
September 2016
Summary:
Criminal
appeal: appellant convicted on two counts of contravening certain
sections of Criminal Law Amendment (Sexual Offences and
Related
Matters) Act 32 of 2007: Trial Court relied on evidence of single
witness: proper judicial approach to such evidence: Evidence
of
single witness not satisfactory and therefore unreliable: convictions
and sentences set aside.
ORDER
On
appeal from:
Gauteng
Local Division Johannesburg (Tshabalala J and Siwendu AJ sitting as
court of appeal):
The
appeal succeeds, and the appellant’s convictions on both counts
7 and 8 and the sentences imposed pursuant thereto are
set aside.
JUDGMENT
Seriti
JA (Tshiqi,
Saldulker, Mathopo JJA and Fourie AJA concurring):
[1]
The
appellant, Mr Cornelius Marthinus Jansen, appeared in the Regional
Court, Kempton Park facing nine counts of contravening various
sections of the Criminal Law Amendment (Sexual Offences and Related
Matters) Act 32 of 2007 read with the provisions of section
51 (1)(a)
and Schedule 2 of the
Criminal Law Amendment Act 105 of 1997
as
amended.
[2]
On
21 November 2012 he was acquitted on seven counts and was convicted
on two counts namely counts 7 and 8. After his conviction
he was
sentenced to ten years’ imprisonment on count 7 and life
imprisonment on count 8.
[3]
The
allegations pertaining to count 7 are that during the period of May
2008 to July 2008 the accused unlawfully and intentionally
exposed or
displayed his genital organs to his minor child who will be referred
to as CJ who was then three years old, by ‘being
completely
naked in front of her on numerous occasions, by bathing with her and
afterwards rubbing his body and his genitals with
cream while she was
made to watch him’.
[4]
The
allegations pertaining to count 8 are that during July 2010 the
accused unlawfully and intentionally sexually violated CJ (then
five
years old) by penetrating her vagina with his finger, alternatively
by ‘touching, rubbing and pinching her vagina with
his hands
and fingers’.
[5]
The
appellant applied for leave to appeal against both convictions and
sentences. On 7 December 2012 the appellant was granted leave
to
appeal to the court below against both his convictions and sentences.
On 27 November 2014 the Gauteng Local Division, Johannesburg
dismissed his appeal. The appellant with special leave of this court
now appeals against both his convictions and sentences.
[6]
The
main issues in this appeal are whether the State has proved beyond
reasonable doubt that:
(a)
the appellant exposed or caused exposure of his genitals to CJ during
May 2008 to July 2008;
(b)
the appellant raped CJ during July 2010 or sexually assaulted her by
touching, rubbing and pinching her vagina with
his hands and fingers;
(c)
whether the evidence of CJ was satisfactory, reliable and truthful;
(d)
whether the appellant’s version could be rejected as false and
not reasonably possibly true.
[7]
The
State relied on the evidence of seven witnesses, namely CJ, Ms
Butterworth, Dr Bellingan, Ms Lillian Fikizolo, Ms Leona Swart,
Ms
Lizzie Khumalo and Ms Letitia van den Berg. The defence relied on the
evidence of inter alia the appellant, Prof Spies, Dr SC
Blunden, Dr C
Opperman and Ms Lorraine Jansen (Lorraine).
[8]
CJ
was three years and five years old respectively at the time of the
alleged offences and was six years old at the time she testified.
Her
evidence in respect of count 7 was as follows: that at the time when
she stayed with her parents (during 2008) her father injured
her. In
short she testified that her father injured her and she said ‘Ja
hy het daar gevryf by my blommetjie’, that
her ‘blommetjie’
is between her legs, and she used to bath alone, but when her father
puts cream on her body ‘dan
vat hy weer aan my blommetjie elke
keer’.
[9]
Regarding count 8 she testified that at some stage she left their
home and went to stay at Huis Impak Children’s Home.
During
school holidays and weekends she used to visit Ms Swart, her foster
parent. At the time when she was staying with Ms Swart
she visited
her father. She was asked if her father injured her when she visited
him and she said ‘Ja toe ons Soccer World
Cup toe was nê
toe gaan eet ons en toe vryf hy weer by my blommetjie’, while
they were at his house.
[10]
She further testified that she reported to Ms Fikizolo, who worked
for Ms Swart, that her father ‘het by my blommetjie
gevat en by
my tieties’. At the time that she stayed with Ms Swart, she
visited her father only once. She remembers Ms Lizzie
Khumalo, who
was working for her mother and father. She told Ms Khumalo that her
father ‘het my blommetjie gevat’.
[11]
Further
details came out during her cross examination. Amongst others she
testified that she reported to Ms Swart and her husband
that the
appellant ‘het in my blommetjie gevat’. She testified
further that her father pushed something into her vagina.
When asked
what did her father push into her vagina, she said ‘dit is
amper soos ‘n spyker maar dit is nie soos ‘n
spyker nie
dit is n ding wat eintlik vir grootmens is maar hy het dit in my
blommetjie gedruk’.
She
was unequivocal that no other person touched her vagina, nor injured
her except the appellant. In re-examination she said that
‘pappa
se tottie was geel gewees en dit het gebloei’.
[12]
Ms
Butterworth, a social worker, who was tasked with the forensic
assessment of CJ during 2008 testified that she first saw CJ on
27
May 2008, when she was around three and a half years old. The purpose
of the consultation was to provide therapy and counselling.
At that
time, CJ had been placed in a place of safety with her cousin, Ms
Smith. She again had several sessions with CJ in August
and September
2008. In 2009 she had therapeutic interventions with CJ and
thereafter prepared a number of reports. In one of the
reports she
stated that over the assessment period she witnessed several
disturbing behaviour patterns displayed by CJ. This raised
a concern
that she had been exposed to either inappropriate sexual conduct or
inappropriate sexual behaviour but that she could
not state that she
experienced them herself. According to her CJ could have obtained the
information from both her parents. Mrs
Butterworth specifically
stated that during their sessions CJ never accused or implicated the
appellant. She was however concerned
with the fact that during one of
the sessions she drew a father with a penis and appeared to be
pre-occupied with her relationship
with her father. Mrs Butterworth
was also concerned with the fact that in one of the sessions CJ
placed her mouth over the penis
of an anatomically correct doll and
told her that she was biting his “tottie.” As a result of
those concerns and observations
Mrs Butterworth stated she formed an
opinion that the appellant was most likely the abuser.
[13]
In May 2008 Ms Lizzie Khumalo was working as a domestic worker for
the Jansen family. She made a written statement to the police.
At the
time of the trial, the investigating officer could not trace her. The
State made an application that her statement be admitted
in evidence
and the application was granted. In the statement Ms Khumalo
states that she was a domestic worker for Ms Linda
Jansen. During May
2008 when she was busy cleaning the house CJ who was three years old
at the time told her that the appellant
had fondled her private
parts. The child showed her what her father did to her.
[14]
Dr
DC Bellingan, who was the East Rand District Surgeon for 20 years
testified. He examined CJ on 23 July 2010 when she was five
years
old. After the examination he prepared a report. Amongst others he
testified that the posterior fourchette was intact. The
hymen had a
very small opening and consisted of the rim only with a small tear at
6 o’clock. In CJ the posterior fourchette
was still present
which indicated that the penetration of the child came from either
directly in front or from above which is usually
someone lying next
to a child and putting a finger in her vagina. If it was a penis it
would have come from the bottom and run
across the posterior
fourchette and in the process it would tear the posterior fourchette.
The tear that he saw was an old injury
which was almost completely
healed. Dr Bellingan further testified that had the child put her
finger in her vagina she would have
had a similar appearance. Based
on his clinical examination he concluded that digital penetration had
taken place.
[15]
Ms
Fikizolo also testified. She testified that during 2010 she was
employed as a domestic worker and stayed at Ms Swart’s
house.
She knows CJ as she used to visit Ms Swart’s house. On a
certain Monday at the beginning of July 2010, whilst she
was cleaning
the passage, CJ came to her and told her that, the previous day,
which was a Sunday her father touched her on her
private parts and
also put her on top of the bed and undressed her. She told Ms Swart
what CJ told her and Ms Swart requested her
to write a report which
she wrote the following day, Tuesday the 6 July 2010.
[16]
Ms
Swart testified that she is the foster parent of CJ. She met CJ when
she was 4 years old in 2009 at Jakaranda Academy and CJ
was in her
class. It was a kindergarten school. On 25 July 2009 she took her out
for the weekend. At that stage they were foster
parents, and they
could take her over weekends and during school holidays. In July 2010
CJ stayed at their place for the entire
duration of the holidays. It
was the long school holidays at the time of the Soccer World Cup. She
was instructed not to have any
contact with CJ’s parents. CJ’s
parents were each allowed to see CJ on alternative Sundays at Huis
Impak. Her father
was later allowed to take her away for about five
hours on a Sunday. The arrangement was that she would drive with CJ
to Huis Impak,
and her father would come and collect CJ and bring her
back later to the same place.
[17]
On
or about 4 or 5 July Ms Swart went with CJ to Huis Impak where the
appellant came and collected CJ. She does not know whether
the
appellant was alone when he came to collect CJ. However he was alone
when he returned her. In the evening whilst asleep CJ
cried out ‘no
daddy, no daddy’. She went to CJ and comforted her and she
slept. The following day, Ms Fikizolo came
to her and told her what
CJ told her. She requested Ms Fikizolo to reduce to writing what she
was told by CJ. She was shocked when
she heard the report by Ms
Fikizolo.
[18]
The
following Sunday she took CJ to the place where the appellant
collected her. When the appellant brought back the child he was
alone. The Saturday prior to the visit to the appellant, CJ when told
that her father will see her again the following day, was
not happy.
Ms Swart said that CJ told her that she does not want to see the
appellant because he injures her. In the evening, like
the previous
occasion, whilst asleep CJ had nightmares and said ‘no daddy no
daddy’. After the second visit by the
appellant, around 11 or
12 July 2010, CJ told her that her father touched her private parts
again. She again wrote a report and
sent it to Huis Impak. After the
school holidays she took CJ back to Huis Impak. She detailed
incidents where CJ behaved abnormally
for a child of her age.
[19]
Under
cross-examination she referred to the two reports she wrote which
were dated 6 July 2010 and 14 July 2010 respectively. In
both reports
she wrote what CJ told her. After every weekend and holiday they were
required to write a report about the activities
of the child and any
problems that the child has encountered. She was referred to a
portion of the report she wrote which reads
as follows:
‘
[CJ]
is gereeld baie bang. Sy wil dan net naby my wees of op my skoot sit.
Ek het haar al gevra hoekom is sy bang, haar antwoord
was ek is bang
vir pappa en vir daardie vrou . . . Ek het haar gevra waarom is sy
vir hulle bang, sy het gesé want pappa
het sy tottie in my
privaat gedruk.’
She
confirmed that the portion quoted correctly reflects what CJ told
her. CJ, without any question from her (Ms Swart) told her
what her
father did to her. She stated that she saw CJ masturbating on several
occasions. CJ, on one occasion “het haar handjie
in haar
broekie ingesit en sy sou haar vingertjie diep indruk en masturbeer .
. .” and that “in die bad het sy tot
haar waslappie binne
in haar genitaliee gedruk . . . die bad het mos so propietjie; so
silwer dingetjie bo-op, en sy sal gaan sit
en sys al op die ding
rondskuif…met haar privaatdeel; . . . sy doen dit vele kere.”
She stated that when the appellant
brought back CJ to Huis Impak, he
was always alone. If Ms Lorraine Jansen was with appellant when the
appellant came to collect
CJ at Huis Impak, she did not see her.
Under re-examination she said CJ on several occasions mentioned that
‘pappa my blommetjie
gevat en gevryf het’ and that ‘pappa
sy tottie in my privaat gedruk het’.
[20]
Ms
Letitia van der Berg, a social worker, also testified. She saw CJ for
the first time on 5 August 2010. She was requested by the
South
African Police Services to do a blind forensic assessment of CJ. She
prepared a report after she consulted with CJ on 5 August,
2
September, 7 September and 16 September. In her report she states,
amongst others, that CJ informed her that Barend, a child
at the
Children’s Home and another person, who she would not name, had
touched her private parts.
[21]
The appellant testified in his defence and called a psychologist, Dr
Carole Anne Opperman, Dr C Blunden a social worker and
Ms Lorraine
Jansen, his then partner as defence witnesses. He testified that he
got married to Linda, the biological mother of
CJ on 30 August 2003
and CJ was born on 8 November 2004. Linda had a severe bipolar mood
disorder and she was misusing alcohol.
When they got married Linda
was working but a few months after their marriage she was retrenched
and she never worked again. Linda
would take care of CJ during the
day but he would take over upon his return from work as Linda would
be drunk. He would bath CJ,
put cream on her and dress her. CJ had a
rash around her genitals and he applied Fissan Paste around her
genitals. From 29 September
2007 up to 13 October 2007 Linda was
hospitalised at Linksfield Park Clinic. Prior to that in 2006 Linda
was admitted at a rehabilitation
centre at Boksburg for a month.
During Linda’s hospitalisation Linda’s friends used to
look after CJ during the day
until he came back from work. In July
2008, Linda went to lay criminal charges against him and never
returned home. She accused
him of sexually molesting CJ.
[22]
The appellant further testified that between 6 March 2009 and 23 July
2010 CJ stayed at Huis Impak. He used to visit her every
second
Sunday of the month from 11h00 till 13h00 at Huis Impak. Later it was
decided that he could take her from Huis Impak for
three hours. The
first Sunday he picked her up they were supposed to see Prof Spies, a
social worker. When they were on the way,
Prof Spies phoned him and
cancelled the appointment. He then went to Rooihuiskraal where he met
Lorraine at the Spur where they
had lunch.
[23]
He picked up CJ on four other occasions and Ms Lorraine Jansen came
with him. On one occasion they finished having lunch early
and he
went to his house with CJ. His son, who stayed in London, was home
for the Soccer World Cup. At his home they played Lego
on the carpet
for about half an hour till the time was up and together with
Lorraine they took CJ to Huis Impak. He took CJ to
his house only on
that one occasion. He denied all allegations levelled against him.
[24]
Under cross-examination he said that he and Linda separated in July
2008. He told Professor Spies that he used to care for
CJ when Linda
was drunk and unable to take care of CJ. On one occasion CJ burst
into the bathroom whilst he was putting cream on
his body.
When
CJ opened the door he was naked, so she did see him naked. On another
day CJ burst into their bedroom when he and Linda were
engaged in
sexual intercourse. On noticing her they stopped and he took CJ to
her bedroom. When CJ was under a year old she used
to bath with him.
[25]
He told Professor Spies and Dr Carol-Anne Opperman that Linda coached
CJ to accuse him of sexual abuse. He confirmed that he
told Dr
Carol-Anne Opperman that CJ was sexually acting out and behaving in
an inappropriate manner because CJ saw him putting
cream on his body
and also walked into their bedroom when Linda and him were having
sexual intercourse. When CJ saw him in the
bathroom, he was putting
cream on his legs, arms, between his legs and on his penis. When
asked why CJ was masturbating, he said
she could have been coached by
her mother. He further said that the inappropriate behaviour of CJ
noted by various people could
be as a result of Linda telling CJ that
if anybody touched her genitalia she should tell her. Linda said this
to CJ several times.
He had five visits to CJ without any
supervision. He had more than four people with him when he was with
CJ, except for one occasion
when he picked up CJ to take her to
Professor Spies, but when he took her back he was not alone.
[26]
The
next defence witness to testify was Dr C Blunden, a social worker.
She had various sessions with CJ. CJ made allegations of
sexual
molestations. Her involvement with CJ was therapeutic. During one of
the sessions, CJ told her that a monster hurt her on
her vagina. She
further testified that CJ informed her that ‘The monster hurt
me by my tinky winky. He hit me with a stone.
It was sore. He smacked
me with a stone on my tinky winky. I was sore. She had her clothes
on. He took it off. Then I asked what
the stone looked like. She said
a baby one. The monster like daddy. It was not daddy . . . It
was one of daddy’s friends
. . . It was a big uncle . . . His
hair was black. He did it three times…He said he is going to
klap me on my face if I
tell daddy.’
[27]
Dr
Carol-Anne Opperman also testified. She consulted with CJ on four
occasions. Her first consultation with CJ was on 16 March 2009
and
she compiled reports. In one of the reports she said that an
inappropriate relationship exists between the appellant and CJ.
From
information she received it indicates sexual abuse and sexualised
behaviour. In one of her reports she said that:
‘
However
it is difficult to determine who the perpetrator is as Cassidy
accuses both her mother and her father of sexually abusing
her plus
as far as I know eight other people’.
[28]
Ms
Lorraine Jansen also testified on behalf of the defence. She is the
ex-wife of the appellant but stayed with him again in July
2010 after
the appellant divorced CJ’s mother. She accompanied the
appellant on every occasion he went to collect CJ at the
Children’s
Home, except when the appellant had taken CJ to meet with Professor
Spies in Pretoria. She was also present when
they returned her, and
he handed her to Ms Swart in the street in front of the Children’s
Home.
[29]
Section
208 of the Criminal Procedure Act states that an accused may be
convicted of any offence on the single evidence of any competent
witness. In
Stevens
v S
[2004] ZASCA 70
;
[2005] 1 All SA 1
(SCA) para 17, Navsa and van
Heerden JJA said:
‘
As
indicated above, each of the complainants was a single witness in
respect of the alleged indecent assault upon her . . . It
is,
however a well established judicial practice that the evidence of a
single witness should be approached with caution, his or
her merits
as a witness being weighed against factors which militate against his
or her credibility . . .’
In
S v Mahlangu
[2011] ZASCA 64
;
2011 (2) SACR 164
(SCA) para 21
Shongwe JA said:
‘
The
court can base its findings on the evidence of a single witness, as
long as such evidence is substantially satisfactory in every
material
respect, or if there is corroboration. The said corroboration need
not necessarily link the accused to the crime.’
[30]
In
its judgment the trial court, regarding count 7 said ‘it is
likely that the little girl must have seen her daddy’s
tottie
on more than one occasion’, and convicted the appellant on
count 7. There is no credible evidence to support the conclusion
of
the trial court. During her evidence CJ did not adduce any evidence
which can sustain a conviction of the appellant on count
7. The
standard of proof in a criminal trial is proof beyond reasonable
doubt. It is trite that an accused bears no onus to convince
the
court of the truthfulness of the explanation that he tenders.
[31]
Concerning count 8 CJ is a single witness, and save for the
contradictory reports she made to various people about alleged
sexual
violations there is no other evidence to corroborate her version.
According to Ms Butterworth, the state’s own witness,
CJ did
not specifically implicate the appellant. Her conclusions are at best
speculative and are based on her observations of the
concerning
behavior that CJ displayed during the therapy sessions. Ms Letitia
van den Berg, a social worker who also testified
for the state stated
that CJ had implicated Barend, a child at the Children’s Home
and another person, who she would not
name, and she accused them of
having touched her private parts. It was not disputed that during her
sessions with two of the defence
witnesses Dr Opperman and Dr
Blunden, CJ also accused her mother and eight other people of
molesting her sexually. Mrs Swart’s
evidence of how she
observed CJ masturbating poses another problem for the state. During
cross examination Dr Bellingan was constrained
to agree that although
it is rare for young girls to inflict the kind of injury that CJ
suffered in her genitalia they could themselves
cause such an injury.
All this contradicts her evidence that only her father molested her.
I am thus not able to conclude that
the injuries observed by Dr
Bellingham could only have been inflicted by the appellant. There is
a real possibility that such injuries
could have been inflicted by CJ
herself whilst she was masturbating or could have been inflicted by
anyone of the people CJ had
implicated. Another problem for the state
is that CJ informed Leona that her father pushed his penis into her
vagina and this allegation
that she was sexually penetrated through a
penis was denied by Dr Bellingan.
[32]
These are serious contradictions which go to the heart of her case.
In my view, they have rendered her evidence untrustworthy,
less
credible and unreliable. It cannot be said that her evidence is
satisfactory in all material respects.
[33]
There is no reliable evidence that can sustain the conviction of the
appellant on both counts. Furthermore, the explanation
of the
appellant in his defence is reasonably possibly true and he was
entitled to an acquittal on both counts 7 and 8. The High
Court erred
in confirming the conviction of the appellant.
[34]
The following order is made:
The
appeal succeeds, and the appellant’s convictions on both counts
7 and 8 and the sentences imposed pursuant thereto are
set aside.
__________________
WL
SERITI
JUDGE
OF APPEAL
APPEARANCES
:
For
Appellant: JHL Scheepers
Instructed
by: VFV Attorneys, Pretoria
Honey
Attorneys, Bloemfontein
For
Respondent: N Muller
Instructed
by: Director of Public
Prosecutions, Johannesburg
Director of Public
Prosecutions, Bloemfontein