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[2016] ZAGPJHC 184
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De Beer v S (A283/15) [2016] ZAGPJHC 184; [2016] 3 All SA 746 (GJ) (29 June 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
No.: A283/15
DATE:
29 JUNE 2016
In
the matter between:
De
Beer, Daniel
Coenraad
...............................................................................................
Appellant
And
The
State
........................................................................................................................
Respondent
Coram:
VALLY J et SIWENDU AJ,
Heard:
10 MAY 2016
Delivered
29 JUNE 2016
Summary:
Single Witness– Child- Rape-
Cautionary Rule- Proof Beyond Reasonable Doubt- Minimum Sentence-
Substantial and Compelling
Circumstances- How To Treat The Evidence
Of Children.
ORDER
The
appeal against conviction is dismissed. The sentence imposed by the
court a quo is set aside and replaced as follows. The accused
is
sentenced to life imprisonment. The accused’s name shall be
reflected in the sexual offenders register.
JUDGMENT
Vally J (Siwendu
AJ concurring):
Introduction
[1]
The appellant was arraigned in the Regional
Court, Kempton Park, on a charge of rape in contravention of section
3 read with sections
1, 55, 56(1), 57, 58, 59, 60 and 61 of the
Criminal Law Amendment Act (Sexual Offences and Related Matters) 32
of 2007 read with
sections 256, 257 and 281 of the Criminal Procedure
Act 51 of 1977 (the CPA) and the provisions of section 51 and
schedule 2 of
the Criminal Law Amendment Act 105 of 1997 (the CLAA),
as amended, as well as sections 92(2) and 94 of the CPA. On 5 May
2011,
the appellant, who was legally represented, pleaded not guilty
to the charge. On 16 October 2012 he was convicted as charged.
[2]
The appellant is the stepfather of the
complainant. The complainant was eight (8) years old at the time of
the incident.
[3]
Upon convicting the appellant the
magistrate heard evidence in mitigation of sentence. Thereafter, on 9
October 2013 he sentenced
the appellant to 15 years imprisonment,
five of which were suspended on condition that the appellant was not
convicted of sexual
offences during the period of suspension.
It was further ordered that the appellant’s
name be entered in the sexual offenders register.
[4]
Subsequently, the appellant successfully
applied for leave to appeal his conviction as well as for bail
pending his appeal.
[5]
The appellant’s appeal was initially
set down for hearing on 29 February 2016. On that day this court
placed the appellant
on notice to indicate why his sentence should
not be increased if this court were to find that his conviction was
safe and in order.
The appeal was thereafter postponed to 10 May 2016
in order to give both the appellant and the State the opportunity to
address
this issue in further submissions. Both took advantage of the
opportunity.
The State’s
case against the Appellant
[6]
The State called six witnesses. The most
important witness was the complainant herself. She provided direct
testimony of what had
transpired between herself and the appellant.
However, before relaying her testimony it is necessary to look at the
evidence of
the other witnesses, because it provides the context as
to how the matter came to light. It is also necessary to look at the
other
evidence, because the appellant claimed that much of this
evidence focussed on communications between the complainant and some
of these witnesses, and this evidence materially contradicted the
complainant’s own evidence in court.
[7]
The maternal grand-aunt of the complainant
informed the court that on 30 March 2010 she was visited by her
sister (the maternal
grandmother of the complainant), her sister’s
husband (the grand-stepfather to the complainant) and the
complainant. Her
sister was visibly upset and informed her that the
complainant had claimed that the appellant had molested her. Her
sister was
afraid of the mother of the complainant, who is her
sister’s daughter and the complainant’s biological
mother. She
asked the complainant what had happened. The complainant
told her that the appellant had removed her panties, put his fingers
into
her vagina and then licked them. Her sister informed her that
because she (her sister) feared the mother of the complainant she
did
not want to take the matter further. However, she prodded her sister
to do the right thing, which was to report it to the authorities.
Her
sister relented. Thereafter, she contacted the police and informed
them of the allegation of the complainant. After reporting
it to the
police she took the complainant to a doctor. The doctor examined the
complainant and confirmed that the complainant was
penetrated and
that there was swelling around her vagina. The doctor also informed
them that the vagina was infected. The complainant
was not able to
say to them when exactly the appellant had molested her. The
grand-aunt kept the complainant with her. She telephoned
the mother
of the complainant and informed her of the allegations as well as the
outcome of the medical examination. The mother
of the complainant
came to her house to hear the allegations first hand. A charge was
laid against the appellant and the complainant
was taken to the Teddy
Bear Clinic.
[8]
The maternal grandmother of the complainant
informed the court that on 27 March 2010 the complainant had for the
first time informed
her that the appellant had on more than one
occasion inserted his fingers into her (the complainant’s)
vagina and licked
his fingers thereafter. This occurred after the
complainant had refused to return to her mother’s home. When
she asked the
complainant why she was refusing to return to her
mother the complainant revealed the information about the sexual
assault. She
asked the complainant why she had not reported the
incidents to her mother. The complainant replied that her mother had
a habit
of sleeping a lot and that the appellant used to put sleeping
tablets in her mother’s coffee. The complainant also told her
that the appellant seemed to favour her over the younger sibling. She
confirmed her sister’s evidence regarding the events
of 30
March 2010. She had no difficulty in admitting that her own
relationship with her daughter, the complainant’s mother,
was
severely strained, but denied that any animosity between her and her
daughter motivated her to falsely implicate her daughter’s
husband, the appellant, in the sexual molestation of the complainant.
She admitted that she did nothing between 27 March 2010,
when she
first heard from the complainant about the sexual assault, and 30
March 2010. It was only on 30 March 2010 that she decided
to visit
her sister for assistance. One factual issue that was focussed on
during her cross-examination was whether she and her
husband had ever
shared a bed with the complainant, and if so, whether the complainant
had slept between her and her husband. She
conceded that this had
occurred. She also admitted that her relationship with her daughter
and the appellant was conflictual.
[9]
The complainant’s step-grandfather
testified that he was present on 27 March 2010 with his wife (the
maternal grandmother)
when the complainant indicated that she was
unhappy about returning to the home of her mother as her stepfather
had sexually assaulted
her. His evidence was unequivocal in two
respects: a) the complainant was adamant in her refusal to return
home to her mother;
and b) the complainant was unambiguously clear
that the appellant had sexually molested her. The sexual molestation
involved the
appellant putting his fingers on more than one occasion
into the vagina of the complainant and thereafter licking them. Both
he
and his wife did nothing about it until they visited his wife’s
sister on 30 March 2010. His role in what happened with the
complainant thereafter was minimal as his wife and her sister had
taken charge of the matter. He admitted that the relationship
between
himself and his wife on one side and the appellant and the
appellant’s wife (his stepdaughter) on the other was strained
well before the complainant had alerted them to the sexual assault.
He denied that he had ever sexually molested the complainant
or
the complainant’s mother. He was aware that such an allegation
had been made against him by the appellant and the complainant’s
mother after it was put to them that the complainant had accused the
appellant of sexually assaulting her. He was adamant that
there was
no substance to this allegation against him. He denied that he or his
wife influenced the complainant to falsely accuse
the appellant of
sexually assaulting her.
[10]
A forensic social worker testified. She got
involved after 30 March 2010 when the matter had already been
reported to the police.
She interviewed the complainant on three
occasions,
viz
on 28 April, 13 May and 1 June 2010. She wrote a report which she
handed to the court before testifying. Her testimony was based
on the
contents of the report. Before the interviews with the
complainant had taken place she had been informed that the
complainant had reported that she had been sexually molested by the
appellant. However, she used various recognised clinical methods
to
acquire the information from the complainant herself. These involved
winning the trust of the complainant, ensuring that the
complainant
was at ease during the interviews, ensuring that the complainant was
not traumatised further by having to discuss the
allegations, and
finally making sure that the complainant was able to give a clear
explanation of what she alleged was done to
her by the appellant. The
substance of her testimony was that the complainant had repeated to
her the allegation that the appellant
had sexually molested her (the
complainant) by inserting his fingers into her vagina on more than
one occasion. After interviewing
the complainant three times she was
satisfied that the complainant was telling the truth. Finally, she
recommended that the complainant
be allowed to testify through an
intermediary.
[11]
The State led the evidence of the
complainant herself. The complainant testified through an
intermediary. From the inception of
her testimony she maintained that
the appellant had harmed her. She stated that the appellant had
removed her panties while he
was alone with her in a bedroom, placed
his fingers in her vagina and licked them thereafter. He had done
this on more than one
occasion. She was asked why she did not inform
her mother of these incidents and she replied that her mother was
always asleep
when it happened, that she was afraid of the appellant
who had told her that if she spoke of the incidents to anyone he
would hurt
her. She further said that he would make coffee for her
mother and would place sleeping tablets in the coffee before giving
it
to her mother to drink. This would make sure that her mother would
not wake while he molested her. The reason she knew they were
sleeping pills is because he told her so. She denied that anyone
influenced or instructed her to claim that it was the appellant
who
had molested her. She agreed that she told her grandmother and
step-grandfather of the incident on 27 March 2010 when she refused
to
return to the home of her mother and the appellant. During her
cross-examination she was asked a few times if her grandmother
and
step-grandfather had influenced her to allege that it was the
appellant who had molested her and she consistently answered,
“
No
”.
During her cross-examination she was asked how she knew that it was
sleeping pills that the appellant put into the coffee
of her mother,
to which she replied: “
Ek het op
die boksie gelees dit is slaappille
”.
This is different from what she said during evidence in chief.
During her evidence in chief she said she knew they
were sleeping
pills because the appellant had told her that they were sleeping
pill. Further, during her cross-examination she
stated that the
brother of the appellant, too, had on occasion molested her, but as
this issue was not pursued with any rigour
during her testimony she
did not provide any detail of it.
[12]
Finally, a doctor who examined the
complainant on 2 April 2010 testified about the facts he established
from the examination as
well as the conclusions he drew from those
facts. His evidence was that upon examining the complainant he found
that she had been
sexually molested. He found that notwithstanding
the fact that she had been penetrated her hymen had not been severed.
After carefully
examining the nature of her injuries he came to the
conclusion that the sexual assault(s) took place during the four
weeks prior
to her visit to him on 2 April 2010. His evidence was
completely uncontroversial.
The evidence of
the appellant
[13]
The appellant did not testify in response
to the evidence of the State. He only testified in mitigation of
sentence. Accordingly,
it would only be necessary to deal with his
evidence if the conviction was upheld. However his wife, who is
also the mother
of the complainant, testified on his behalf.
She testified that when she was thirteen years old her stepfather had
rubbed
her breasts. She had told him to stop, which he did. He never
repeated this misconduct. She said that her child, the complainant,
had never told her of being molested by the appellant and that the
appellant and the complainant had a good relationship. In fact,
she
said, they had great affection for each other. She related a
conflictual incident between herself and the appellant on the
one
side and her mother and her stepfather on the other side, which
damaged their joint relationships. It was her testimony that
her and
her husband’s relationship with her mother and stepfather was
so fractious and conflictual that she believed that
they would not
hesitate to bring harm to them. In particular, her mother was very
upset at the fact that she and her husband decided
to move away from
her as this caused her mother to lose regular direct contact with the
children – the complainant and the
complainant’s younger
sister. Her mother blamed the appellant for causing her to lose this
direct and regular contact with
the children and as a result told her
that he would pay for separating her from her grandchildren. Later on
there was another incident
that served to aggravate the ill feeling
her mother and stepfather had for her and the appellant. It concerned
a time when her
mother and stepfather came to live with them for a
short time as her stepfather did not have money. During this stay the
two children
shared a room with her mother and stepfather. In fact,
the complainant slept on the same bed with her mother and stepfather.
After
a while they received a letter from the landlord informing them
that by accommodating her mother and stepfather in their home they
were in breach of the lease agreement they had concluded with him. It
was then that the appellant felt that he could no longer
contend with
them living in his house and asked them to leave. This caused them
grief. They felt that they were being chased away
by the appellant in
their time of need. They claimed that the appellant had orchestrated
the situation by getting the landlord
to complain of their presence.
Before leaving they warned him that they would avenge his ill
treatment of them. This latter incident
took place only a few months
before the complainant made the allegation that the appellant had
sexually molested her. She denied
that the appellant had made coffee
for her regularly, or that she slept most of the time while he was at
home. With regard to the
sexual assault she said that the complainant
told her that the appellant had put his fingers into her vagina and
that the appellant’s
brother, Willie, had penetrated her with
his whole hand. Finally, she claimed that the complainant was
influenced by her mother
and stepfather to falsely accuse the
appellant of sexually molesting her.
Analysis
[14]
It is common cause that the appellant and
his brother were charged for molesting the complainant. This resulted
from the fact that
the complainant had claimed at one stage that the
brother of the appellant, too, had molested her. However, the State
withdrew
its case against the brother. The appellant sought to make
much of this. He claimed that the fact that the State chose initially
to charge both him and his brother while later withdrawing the charge
against his brother indicates that the evidence of the complainant
cannot be relied upon. It shows, he contented, that the complainant
had made contradictory claims about who actually had molested
her. I
am not persuaded by the contention. It is correct that the
complainant had at one stage alleged that both he and his brother
had
molested her and that at the trial she stated that it was only him
that did so. But this does not mean that she was not candid,
nor that
she was confused about him being the actual perpetrator of the
assault on her. At all times she consistently maintained
a few
elements of her testimony, as well as her statements to various
persons from 27 March 2010. These were:
[14.1]
it was the appellant that had placed his fingers in her vagina and
had licked them thereafter;
[14.2]
the appellant did so while her mother was asleep;
[14.3]
she was afraid that the appellant would harm her if she told anyone
of what the appellant had done to her;
[14.4]
she was never influenced by her grandmother or step-grandfather to
identify the appellant as the person who did this to her;
[14.5]
that the appellant had molested her on more than one occasion;
[14.6]
that only the appellant and his brother had molested her.
[15]
In order to meet the case against him the
appellant elected to produce the evidence of his wife only. He chose
not to testify himself,
even though the State had put up substantial
evidence of his conduct, which required an answer from him. This was:
that he assaulted
the complainant; that the assaults took place in
the bedroom while his wife and the complainant’s younger sister
were asleep
in the bedroom next door; that he put sleeping tablets
into the coffee of his wife prior to assaulting the complainant; and
that
he threatened to bring harm to the complainant should she tell
on him. Instead, he chose to meet the case by claiming, through the
evidence of his wife, that the grandmother and step-grandfather of
the complainant had influenced the complainant to falsely claim
that
he was the perpetrator of the assault on the complainant.
[16]
The appellant’s wife made the claim
that the complainant was influenced by her grandmother and
step-grandfather. He had no
basis for making such a claim, and if he
had he certainly did not present it to the court. He merely
appropriated her claim. The
basis for his wife making the claim was
that they sought revenge for her and the appellant’s conduct
in:
[16.1]
firstly, moving away from them; and,
[16.2]
secondly, in requiring them to leave their (the appellant’s and
her) home when the landlord threatened to evict all
of them.
[17]
This claim - that the complainant was
influenced by the mother and stepfather of the appellant’s wife
to falsely accuse the
appellant because they sought revenge for the
ill treatment meted out to them by the appellant – is
untenable. Her mother
and stepfather must have harboured such ill
feeling towards them that they would, without conscience, use the
complainant in the
most pernicious way to get back at them. To do so
they would have to be extremely malicious. There was no evidence
presented that
would allow for such a radical conclusion to be drawn.
Further, they would have to be so cunning that they could get away
with
such a conspiracy. To get the complainant to falsely accuse the
appellant of a very serious crime, and to maintain this, would be
no
mean feat given that the complainant was questioned on so many
occasions by so many different persons at so many different times.
[18]
As regards his wife’s claim that she
was sexually molested by the stepfather when she was a child it is
important to note
that both her mother and her stepfather strenuously
denied that the stepfather had molested her or that she had reported
it to
her mother at the time. This claim against the stepfather, it
has to remembered, only surfaced after the complainant had informed
on the appellant. She also failed to give any details of the sexual
assault on her by her stepfather.
[19]
What is particularly disconcerting about
this claim is that, if she was aware of the history of her stepfather
molesting her as
a young child, she had no basis to release the
complainant into their care. Yet she had done so. She had also
allowed the complainant
to share a bed with her mother and
stepfather. The appellant’s counsel conceded that her conduct
was inexplicable. In my
view, her conduct as a mother is not
consistent with that of someone who herself has been a victim of a
sexual assault by a parent
when she was a young child. It also bears
mentioning that she did not then, nor even at this stage, pursue the
allegation against
her stepfather. Nothing stopped, or stops, her
from so doing and the law could, or still can, take its course.
[20]
I am not able to find that the appellant’s
account of why he was blamed for sexually assaulting the complainant
to be reasonably
possibly true.
[21]
In any event the appellant’s claim
that, because his wife was sexually assaulted by her stepfather, it
was, or could only
be, her stepfather that had sexually assaulted the
complainant, is untenable. Even if many years ago his wife was
sexually assaulted
by her stepfather that is no basis to reach the
conclusion that the stepfather perpetrated a sexual assault on the
complainant
at some time prior to the medical examination conducted
upon the complainant by the doctor on 2 April 2010. The conclusion
the
appellant asks the court to draw in this regard is at odds with
the basic tenets of logic. Absent any concrete evidence against
the
stepfather there is no basis to conclude that he was the perpetrator,
or even the possible perpetrator, of the sexual assault
on the
complainant. This claim was no doubt made to introduce an element of
doubt regarding the appellant’s guilt. It was
made to defeat
the State’s case, but unfortunately on its own it is
insufficient. On its own it does not raise any doubt
that dispels or
undermines the evidence presented by the State, especially the
evidence presented by the complainant.
[22]
The appellant attacked the finding of the
court
a quo
that the complainant’s evidence was reliable. He contended that
the complainant had contradicted the evidence of the social
worker in
material respects thus showing that she was not consistent. It will
be remembered that the social worker testified as
to the information
she received from the complainant a month or so after the incident
was reported. The social worker used certain
techniques to get the
complainant to reveal her ordeal. Nevertheless, the differences in
the versions of the social worker and
the complainant, according to
the appellant, are:
[22.1]
the social worker said that the complainant told her that she had
informed her mother of the sexual assault but her mother
did not
believe her. In her evidence the complainant said that she did not
tell her mother because she was afraid that the appellant
would
inflict harm upon her.
[22.2]
the social worker said that the complainant had told her that the
brother of the appellant had also assaulted her in the
same way as
the appellant had done. In her evidence the complainant failed to
provide the same detail. She merely said that the
appellant’s
brother had also molested her.
[23]
The
appellant contended that these differences in what the complainant is
supposed to have said to the social worker and what she
said in court
demonstrate that the complainant was dishonest in her testimony. As a
result, he argued, her evidence must be regarded
as being unreliable.
I do not agree. Firstly, the differences in the evidence were
not so material that they resulted in
contradictions of fundamental
facts. On the fundamental facts the evidence was essentially the
same. More importantly, there was
nothing improbable about the
complainant’s version. Furthermore, it must be borne in mind
that the evidence of the social
worker was hearsay. The evidence of
the complainant in court was direct. The complainant was
cross-examined and not once did she
contradict herself in any
material way. Her evidence was focussed and, as I say above,
consistent. It is also of importance that
the evidence of the social
worker was never put to her, nor was there an application to recall
the social worker. It is important
not to overlook a fundamental
principle of cross-examination, which is that it is the duty of a
cross-examiner to put to a witness
that there are material
contradictions between her evidence and the evidence of other
witnesses, and that on the reliance of these
contradictions it will
be contended that she is not being candid with the court.
[1]
In this case it was not done. I am mindful of the fact that the
complainant was an eight-year old girl, which made it necessary
to
ensure that the cross-examination was not unduly aggressive or
hostile, as this carries with it the potential of causing serious
psychological harm to the child. However, there is no reason why the
discrepancies cannot be put to a young child without causing
the
child distress or psychological harm. The cross-examination can be
polite and conducted through the careful choice of words.
The child,
after all, often testifies, as has occurred in this case, through a
professionally trained intermediary
[2]
whose task it is to protect the child from distressing and hostile
cross-examination that can be painful even for adults. There
is also
s
63 of the
Child
Justice Act 75 of 2009
(CJA), which provides that a child justice court, which includes any
court provided for in terms of the CPA, must ensure that the
best
interests of the child are upheld. While the section focusses on a
child-accused there is no reason why it should not apply
to a
child-witness.
[3]
[24]
While the intermediary is there to protect
the child, she is also there to assist the court in ensuring that the
process of establishing
truth is not compromised simply because the
witness is a child. The cross-examiner is not absolved of the duty to
courteously,
but thoroughly, put her client’s version in full
to the witness. This may include informing the witness that it would
be
argued that the witness was not candid or correct in her account
of the events which are the focus of the proceedings. A competent
intermediary would ensure that this is not done in a manner that is
distressing or psychologically harmful to the child. Furthermore,
t
he
presiding magistrate (or judge) is there to protect the best
interests of the child and will no doubt oversee the
cross-examination
so that no harm is brought upon the child witness.
This can be done without compromising the right of the accused to
canvass, as
well as challenge, all evidence presented against her. In
our case, the appellant elected not to canvass the evidence of the
complainant,
which he claimed was contradictory.
[25]
The final complaint of the appellant was
that the court
a quo
failed to adequately take note that the evidence against him was
really presented by a single witness and was therefore subject
to the
cautionary rule. According to the appellant, had the court
a
quo
done so, it would have concluded
that the State had failed to prove its case beyond reasonable doubt.
[26]
The
Roman Dutch law, which as we all know forms the basis of our common
law, did not allow for the conviction of an accused solely
on the
uncorroborated evidence of a single witness.
[4]
This was changed by legislative intervention. Statute allowed for the
court to convict an accused on the evidence of a single competent
and
credible witness. The legislative advance, nevertheless, did not
remove the duty of the courts to look carefully at the uncorroborated
evidence of a single witness before they were satisfied that the
State had proved its case beyond reasonable doubt. Anything less
would render the conviction unsafe. Over the years, in the exercise
of this duty courts naturally became aware of the need to take
care
before reaching the conclusion that a conviction in these
circumstances was safe. This approach towards such evidence was
captured in the following
dictum
:
“…
the
uncorroborated evidence of a single competent and credible witness is
no doubt declared to be sufficient for the conviction
by s 284 of Act
31 of 1917, but in my opinion that section should be relied on where
the evidence of the single witness is clear
and satisfactory in every
material respect.
”
[5]
[27]
For decades this has been the general
approach of our courts to the evidence of a single witness in cases
involving sexual offences
such as rape. Unfortunately, this has been
interpreted to mean that the courts have adopted a cautionary rule
that has to be applied
to the evidence of a single witness who in
almost all cases happens to be the victim of the sexual offence. This
interpretation
has often not served the interests of justice. It has
often resulted in the adoption of the notion that many, if not most,
women
who are single witnesses in cases involving sexual assaults
inflicted upon them are prone to lie. It is a notion that had no
scientific
basis and is simply illogical.
[28]
The
thrust of the law, however, has never altered. It is, and always has
been the law that the proof required for a safe conviction
has to be
beyond reasonable doubt. On this basis, if the evidence was weak,
shaky or not convincing then it would be safer to acquit,
for the
alternative, an incorrect conviction, is most certainly not in the
interests of justice. Quite simply the protection is
inherent to the
requirement that the proof of guilt must be found to be beyond
reasonable doubt. There is therefore neither basis
nor need for the
courts to apply the cautionary rule when dealing with a case of
sexual assault. The application of the rule in
cases of sexual
assault was nothing short of a sexist practice. I agree with Modiba
AJ (as she then was) who pointed out that the
application of this
rule reeked with double standards :
“
The
defence requested the court to treat Ms Mogomotsi's evidence with
caution, because she is a single witness. I found this
request
very interesting because the accused is also a single witness in
respect of his version. The request is not only
based on double
standards, it is reminiscent of the discriminatory assumptions of the
past age that a complainant in a rape case
is likely to be
untruthful.
”
[6]
[29]
The practice of applying the cautionary
rule in sexual offences cases should not be part of a legal order
that strives to treat
all persons with equal respect. In any
event, the practice is no longer allowed in our law. In
S
v J
Olivier JA struck it a death blow
when he said:
“
The
notion that women are habitually inclined to lie about being raped is
of ancient origin. In our country, as in others, Judges
have
attempted to justify the cautionary rule by relying on 'collective
wisdom and experience' … This was also the justification,
before the reform of the law, in the UK. This justification lacks any
factual or reality-based foundation, and can be exposed as
a myth
simply by asking: whose wisdom? whose experience? what proof is there
of the assumptions underlying the rule?
The
fact is that such empirical research as has been done refutes the
notion that women lie more easily or frequently than men or
that they
are intrinsically unreliable witnesses.
”
[7]
And:
“
In
my view, the cautionary rule in sexual assault cases is based on an
irrational and out-dated perception. It unjustly stereotypes
complainants in sexual assault cases (overwhelmingly women) as
particularly unreliable. In our system of law, the burden is on
the
State to prove the guilt of an accused beyond reasonable doubt - no
more and no less. The evidence in a particular case may
call for a
cautionary approach, but that is a far cry from the application of a
general cautionary rule.
”
[8]
[30]
There has also been legislative
intervention dealing with this unacceptable practice as it hindered
the interest of justice. Section
60 of the
Criminal
Law (Sexual Offences and Related Matters) Amendment Act, 32 of 2007
(Sexual Offences and Related Matters Act) provides:
“
Notwithstanding
any other law, a court may not treat the evidence of a complainant in
criminal proceedings involving the alleged
commission of a sexual
offence pending before that court, with caution, on account of the
nature of the offence.
”
[31]
In
the case of children however the law is still somewhat ambiguous. It
is still customary to apply the cautionary rule in these
cases,
though it is done not on account of the nature of the offence but
rather on account of the nature of the witness. A child-witness,
it
is said, is susceptible to suggestion and to the folly of imagination
and his/her
[9]
evidence needs be
treated with caution. Schreiner JA set the tone for this when he
observed:
“
The
dangers inherent in reliance upon the uncorroborated evidence of a
young child must not be underrated. The imaginativeness and
suggestibility of children are only two of a number of elements that
require their evidence to be scrutinised with care amounting,
perhaps, to suspicion. 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.
”
[10]
[32]
This approach is still a prescribed guide
for the assessment of the evidence of the child despite the
development of the common
law by Olivier JA in
S
v J
and the legislative intervention in
s 60 of the Sexual Offences and Related Matters Act
.
[33]
But,
once again, it cannot be forgotten that the issue for the court is
still whether the State has proven beyond reasonable doubt
that the
sexual offence for which the accused stands indicted was committed.
Insofar as analysing the evidence of the child is
concerned the
crucial question as in every case is: is the evidence of the child
trustworthy? In answering this question the trial
court should
consider whether the child is able to narrate his/her experience with
reasonable clarity, whether he/she is able to
provide sufficient
details of the offence, whether s/he understands the importance of
being truthful and whether s/he understands
what s/he is saying.
[11]
With the assistance of the intermediary all of these issues can be
attended to by counsel for the State and for the accused during
the
presentation of the child’s testimony. If this is done
and the evidence is found to be untrustworthy, then proof
beyond
reasonable doubt would be absent and an acquittal should follow.
[34]
It is on the basis of this approach that I
now turn to the case against the appellant.
[35]
In
my view the magistrate did not fail to examine the evidence of the
complainant carefully before finding that the State had proven
its
case beyond reasonable doubt. The evidence of the complainant
was sound, consistent, not contradicted and reasonably
detailed for
it to be accepted. The complainant fully comprehended what she was
saying. At the same time, the failure of the appellant
to testify
meant that there was no real alternative to her evidence. He had
every right not to testify, but his failure to do so
is not without
consequences. He has to meet the case of the State against him, and
if by remaining silent he fails to meet that
case then the court may
find that the State has put up sufficient evidence to warrant a
verdict of conviction. All that is required
is that the evidence
shows beyond reasonable doubt that he is guilty of the offence for
which he was indicted.
[12]
Having failed to testify, the appellant attempted to create doubt as
to the veracity of the complainant’s evidence by presenting
the
evidence of his wife. His wife claimed that the evidence of the
complainant was motivated by malice on the part of her mother
and
stepfather. However, his wife’s evidence was wholly inadequate.
She could not say anything regarding the incidents the
complainant
testified about. She said nothing about the medical findings of the
doctor concerning the harm done to the complainant.
She did not point
to any animosity between the complainant and the appellant or between
herself and the complainant. She could
give no details of how her
mother and stepfather influenced the complainant and why they were
able to exercise such influence over
her. In short, her evidence was
so weak that it did not dispel the evidence of the State or show that
there was a reasonable possibility
of the appellant being falsely
accused of sexually assaulting the complainant.
[36]
In conclusion on the issue of the safety of
the conviction by the court
a quo
,
I find that the evidence of the appellant’s culpability for
sexually assaulting the complainant was overwhelming. His failure
to
testify left that evidence unchallenged. Hence, I find that on a
careful analysis of the totality of the evidence that was presented
at the court
a quo
the State had proved beyond reasonable doubt that he sexually
assaulted the complainant, by penetrating her with his fingers. In
terms of section 3 read with
sections 1
,
55
,
56
(1),
57
,
58
,
59
,
60
and
61
of the
Criminal Law Amendment Act (Sexu
al Offences and Related
Matters) 32 of 2007 read with
sections 256
,
257
and
281
the CPA such
an act constitutes rape. He is therefore guilty of the charge on
which he was indicted.
Sentence imposed
by the magistrate
[37]
The learned magistrate heard evidence in
mitigation of the sentence to be imposed. The appellant testified.
The learned magistrate
also received a pre-sentence report drawn by a
clinical psychologist. The clinical psychologist testified as
to the contents
of the report. After considering the evidence of the
appellant as well as the report the magistrate decided to impose a
sentence
of fifteen years imprisonment, five of which were suspended
on condition that the appellant was not convicted of sexual offences
during the period of suspension.
[38]
The justification for this sentence is to
be found in three short paragraphs in the judgment. They read:
“
I
am of the opinion that despite the fact that this [indistinct] is
very serious, I also do not agree with the state that a life
sentence,
although a life sentence is
the appropriate sentence in the circumstances
,
but I am of the opinion that are certain other factors that wants the
court to deviate from the prescribed minimum sentence and
of the
opinion that a life sentence at this particular state will not be
appropriate sentence as well as the totally suspended
sentence, will
not be a appropriate sentence.
The
sentence that the court has to imposed, is the sentence that will
make you to realised what you have done is not acceptable.
And so
even the people that want to do this particular issue must know that
the court will not take this thing lightly and that
this is not
acceptable and the court will not accepts to such particular things.
Everything
[indistinct] that is your personal circumstances, the seriousness of
the offence and the interest of the community, I
am of the opinion
that the following sentence is appropriate sentence under the
circumstance.
”
(The quotation is
verbatim, but the bold is mine)
[39]
While there is an acknowledgement by the
magistrate that he is required to give effect to the provisions of
ss
51(1)
and (3) of the CLAA, there is no logical reason provided as to
why he did not do so. Sub-sections 51(1) and (3) of the CLAA, read
with Schedule 2 of the same Act, make it plain that the court can
depart from the minimum sentence of life imprisonment only if
the
court is satisfied that substantial and compelling circumstances
exist which justify the imposition of a sentence lesser than
life
imprisonment. In that case the court must enter those circumstances
on the record before it imposes a lesser sentence. The
magistrate merely noted that he was required to apply the provisions
of ss 51(1) and (3) of the CLAA but then ignores them altogether.
There are no reasons furnished as to why they are ignored.
[40]
It is important to note that while ss 51(1)
and (3) call for the imposition of minimum sentences they do not
remove altogether the
power of the court to determine what the
appropriate sentence in a specific case should be. That decision is
left to the court.
The court is allowed to depart from the prescribed
minimum sentence should it find that there are substantial and
compelling circumstances
present which indicate that the imposition
of a minimum sentence would not be in the interests of justice. That
is the prevailing
legal position post the enactment of ss 51(1) and
(3) of the CLAA. It is best summarised in
S
v Malgas
where the following was said:
“
What
stands out quite clearly is that the courts are a good deal freer to
depart from the prescribed sentences than has been supposed
in some
of the previously decided cases and that it is they who are to judge
whether or not the circumstances of any particular
case are such as
to justify a departure. However, in doing so, they are to respect,
and not merely pay lip service to, the Legislature's
view that the
prescribed periods of imprisonment are to be taken to be ordinarily
appropriate when crimes of the specified kind
are committed. In
summary:
A.
Section 51 has limited but not eliminated the courts' discretion in
imposing sentence in respect of offences referred to in Part
1 of
Schedule 2 (or imprisonment for other specified periods for offences
listed in other parts of Schedule 2).
B.
Courts are required to approach the imposition of sentence conscious
that the Legislature has ordained life imprisonment (or
the
particular prescribed period of imprisonment) as the sentence that
should ordinarily and in the absence of weighty justification
be
imposed for the listed crimes in the specified circumstances.
C.
Unless there are, and can be seen to be, truly convincing reasons for
a different response, the crimes in question are therefore
required
to elicit a severe, standardised and consistent response from the
courts.
D.
The specified sentences are not to be departed from lightly and for
flimsy reasons. Speculative hypotheses favourable to the
offender,
undue sympathy, aversion to imprisoning first offenders, personal
doubts as to the efficacy of the policy underlying
the legislation
and marginal differences in personal circumstances or degrees of
participation between co-offenders are to be excluded.
E.
The Legislature has, however, deliberately left it to the courts to
decide whether the circumstances of any particular case call
for a
departure from the prescribed sentence. While the emphasis has
shifted to the objective gravity of the type of crime and
the need
for effective sanctions against it, this does not mean that all other
considerations are to be ignored.
F.
All factors (other than those set out in D above) traditionally taken
into account in sentencing (whether or not they diminish
moral guilt)
thus continue to play a role; none is excluded at the outset from
consideration in the sentencing process.
G.
The ultimate impact of all the circumstances relevant to sentencing
must be measured against the composite yardstick ('substantial
and
compelling') and must be such as cumulatively justify a departure
from the standardised response that the Legislature has ordained.
H.
In applying the statutory provisions, it is inappropriately
constricting to use the concepts developed in dealing with appeals
against sentence as the sole criterion.
I.
If the sentencing court on consideration of the circumstances of the
particular case is satisfied that they render the prescribed
sentence
unjust in that it would be disproportionate to the crime, the
criminal and the needs of society, so that an injustice
would be done
by imposing that sentence, it is entitled to impose a lesser
sentence.
J.
In so doing, account must be taken of the fact that crime of that
particular kind has been singled out for severe punishment
and that
the sentence to be imposed in lieu of the prescribed sentence should
be assessed paying due regard to the bench mark which
the Legislature
has provided.”
[13]
[41]
It
was pointed out in
S
v Vilakazi
[14]
that the approach in
Malgas
is necessary to ensure that there is some congruency in sentencing
and that the sentence imposed is proportionate to the gravity
of the
crime.
[42]
It bears remembering that the important
message contained in
Malgas
is that while sentencing courts have a residual discretion when
imposing a sentence in a particular case they nevertheless have
to
provide sound reasons for departing from the minimum sentence
prescribed in s 51(1) of the CLAA. They do not have a free-hand
to do
as they please without any regard whatsoever to the legislature
decision on what the policy of sentencing should be, so that
there
can at least be some consistency in sentencing. Sentencing courts
have been reminded of this many times by the Supreme Court
of Appeal.
An unambiguous reminder is to be found in the
S
v Matyityi
where the court said:
“
It
follows that, to borrow from
Malgas
,
it still is 'no longer business as usual'. And yet one notices all
too frequently a willingness on the part of sentencing courts
to
deviate from the minimum sentences prescribed by the legislature for
the flimsiest of reasons - reasons, as here, that do not
survive
scrutiny. As
Malgas
makes plain, courts have a duty, despite any personal doubts about
the efficacy of the policy or personal aversion to it, to implement
those sentences. Our courts derive their power from the Constitution
and, like other arms of State, owe their fealty to it. Our
constitutional order can hardly survive if courts fail to properly
patrol the boundaries of their own power by showing due deference
to
the legitimate domains of power of the other arms of State. Here
Parliament has spoken. It has ordained minimum sentences for
certain
specified offences. Courts are obliged to impose those sentences
unless there are truly convincing reasons for departing
from them.
Courts are not free to subvert the will of the legislature by resort
to vague, ill-defined concepts such as 'relative
youthfulness' or
other equally vague and ill-founded hypotheses that appear to fit the
particular sentencing officer's personal
notion of fairness.
Predictable outcomes, not outcomes based on the whim of an individual
judicial officer, is foundational to
the rule of law which lies at
the heart of our constitutional order.”
[15]
[43]
It follows that the trial court committed a
material misdirection by imposing a sentence that falls far short of
what is called
for in terms of s 51(1) of the CLAA. Viewed in the
light of the sentence prescribed by this sub-section of the CLAA, the
sentence
imposed by the trial court is unduly lenient.
[44]
The State did not cross-appeal against the
sentence imposed. This court was concerned that such misdirection
could result in a failure
of justice. Thus, when the matter was first
called, this court decided to postpone the matter in order to afford
the appellant
and the State the opportunity to make submissions on
whether this court was empowered to interfere with the sentence
imposed by
the trial court and, if so, why it should not interfere
with the sentence imposed by setting it aside and replacing with one
that
gives effect to the provisions of ss 51(1) and (3) of the CLAA.
Both the appellant and the State took full advantage of the
opportunity
and both presented lengthy submissions in this regard.
Effectively, the State took the view that this court is empowered to
interfere
with the sentence imposed and that it should do so in the
interests of justice. It asked that this court set aside the sentence
imposed and replace it with a sentence of life imprisonment as
prescribed by s 51(1) of the CLAA. The appellant took the contrary
view. He maintained that this court had no power to interfere with
the sentence imposed as the State had failed to cross-appeal
against
it.
[45]
There
can be no doubt that this court sitting in appeal is vested with the
power to
mero
motu
increase the sentence imposed by the magistrate. It has always had
this power. It is a power that is essential to the performance
of its
duty to do justice. However, since the enactment of the Constitution
this power can only be exercised after the appellant
has been given
due notice about the possibility of the sentence being increased.
[16]
In my view, the appellant in this case was given the due notice. He
had an opportunity to make full submissions on the matter and
he took
full advantage of the opportunity. In fact, it was directed that the
State make its submissions first and he was given
appropriate time to
respond thereto, as well as to make submissions independent of what
the State’s submissions were. In
these circumstances, there can
be no doubt that this court may increase the sentence imposed by the
magistrate should it find that
it is in the interests of justice to
do so.
Should the
sentence be increased?
[46]
The magistrate we know failed to adhere to
the prescripts of the ss 51(1) and (3) of the CLAA. We know that the
sentence he imposed
falls far short of what those precepts request of
him. In so doing, he committed a material misdirection.
[47]
The appellant had committed a heinous
crime. He raped a minor child on more than one occasion. Rape in
general, we know, is a very
serious offence. Our courts have
repeatedly said this and so has our legislature by enacting s 51 of
the CLAA. Courts have a duty
to ensure that the offence is dealt with
in a manner that respects the rights of rape victims. Mahomed CJ has
reminded courts of
this duty:
“
Rape
is a very serious offence, constituting as it does a humiliating,
degrading and brutal invasion of the privacy, the dignity
and the
person of the victim. The rights to dignity, to privacy and the
integrity of every person are basic to the ethos of the
Constitution
and to any defensible civilisation. Women in this country are
entitled to the protection of these rights….
The Courts are
under a duty to send a clear message to the accused, to other
potential rapists and to the community: We are determined
to protect
the equality, dignity and freedom of all women, and we shall show no
mercy to those who seek to invade those rights.
We communicate that
message in this case by an order that the appeal of the appellant
against his convictions and sentences is
dismissed.”
[17]
[48]
The appellant acted in a manner that is
unacceptable to our constitutional order. We are committed to the
protection, safety and
interests of all children. Our commitment has
been enshrined in the Constitution. Sub-sections 28(1)(b) and
28(1)(d) bequeaths
upon every child the right “
to
family or parental care
”, and the
right “
to be protected from
maltreatment, neglect abuse or degradation
.”
Both rights of the complainant have been violated by the conduct of
the appellant. The appellant has also violated her
right to dignity.
He did all this by abusing the position of trust he occupied in
relation to the complainant and in relation to
the family as a whole.
He took advantage of the power he wielded over the complainant. He
made sure that she was fully aware that
should she raise any alarm
about his conduct she would suffer severe consequences, thus ensuring
that she was powerless to do anything
about it.
[49]
After informing on what the appellant had
done to her, the complainant and her sister have been removed from
the family home and
have been placed in care. They have been
separated from their mother. They have essentially been deprived of
their family life.
Hence, the conduct of the appellant has had
significant negative consequences for both the complainant and the
complainant’s
younger sister.
[50]
A social worker had interviewed the
complainant prior to the sentencing of the appellant and had compiled
a report on the impact
of “
the
sexual abuse on
” the complainant.
Her report, which was placed before court and not challenged,
contains the following:
“
(the
complainant) reports that she feels heartbroken and bad about herself
because her mother chose to take her step-father’s
side. She
reports that she is happy that she was removed otherwise the abuse
would have carried on. (The complainant) reported
to the undersigned
that if she had to see her stepfather again she would tell him that
what he did was very ugly and ask him why
he did it. She would ask
him his “brain told him to do what he did”.
The
child care worker reports that (the complainant) has been suffering
from encopresis. This was discovered after the general assistant
found the soiled underwear hidden in her cupboard. According to the
literature found in Forensic Assessment Consultation Training
(FACT
2013): “encopresis occurs when a child becomes inconsistent
regarding defecation after having learnt complete toilet
habits. It
represents a strong form of aggression that manifests itself in this
way. It is also aimed at the parents.” It
further states that
cases of encopresis are isolated and are usually linked to serious
emotional disorders. It can also occur in
the case of the child who
has been sexually molested.
(the
complainant) has been struggling with schoolwork as she battles to
remember and concentrate in class or when doing homework
…
It
is clear that the sexual abuse on the child had a major, emotional
impact on her life. The child is struggling to cope with what
happened to her and will need long term therapy in order to lessen
the impact on her.
”
[51]
A clinical psychologist employed in the
South African Police Services compiled a pre-sentencing report. She
had consulted with the
appellant prior to compiling it. The report
was presented to the court. She found that the appellant showed
no remorse for
his deeds. She testified as to its contents. She was
cross-examined by counsel for the appellant. Her findings were never
challenged.
Instead, her cross-examination focussed on whether the
appellant had committed the unlawful acts.
[52]
The appellant testified in mitigation of
sentence. He said he was thirty-seven years old at the time he was
sentenced; that he does
not have any children of his own; that he is
married to the mother of the complainant; that he is employed; that
his younger brother
lives with him and his wife; that his younger
brother, too, is employed and contributes towards the upkeep of the
household. That
was the sum total of the facts he placed before
court. During his cross-examination he was invited by the state
prosecutor to put
up any evidence regarding his psychological state
of mind or his character or anything that would assist him and he
declined the
invitation.
[53]
None of the facts he placed before court
can be regarded as constituting substantial and compelling
circumstances that warrant a
departure from the minimum sentence
prescribed by the legislature. He has not placed anything before the
court to show that the
sentence called for in s 51 of the CLAA is
disproportionate to the crime for which he has been convicted or that
it fails to give
sufficient weight to his personal circumstances. In
fact, his counsel stated there are no substantial or compelling
circumstances
that the appellant could place before court. The
appellant consistently adopted this attitude, even after he was given
an opportunity
to make fresh submissions on this issue. Nothing
prevented him from asking this court to remit the matter to the court
a quo
or
for this court, to receive new evidence demonstrating that there are
substantial and compelling circumstances warranting a departure
from
the sentence prescribed by s 51(1) of the CLAA.
[54]
Accordingly, I can find no substantial or
compelling reasons to depart from the sentence prescribed in s 51(1)
of the CLAA.
Order
[55]
The following order is made:1.
The appeal against conviction is dismissed.
2.
The sentence imposed by the court
a
quo
is set aside and replaced as
follows.
1
The accused is sentenced to life
imprisonment.
2
The accused’s name shall be reflected
in the sexual offenders register.
VALLY
J
SIWENDU
AJ
Date
of Hearing:
10 MAY 2016
Date
of Judgement:
29 JUNE 2016
For the
appellant: Adv JJ Greef
Instructed
by: Kemp De Beer and Goosen Attorneys
For the
respondent: Adv P Nel
Instructed
by: Director of Public Prosecutions
[1]
See
in this regard the well-known
dicta
of
the Constitutional Court in
President
of the Republic of South Arica and Others v South African Rugby
Football Union and Others
2000 (1) SA 1
(CC) at [61] – [65] regarding the duties of a
cross-examiner.
[2]
Section
170A of the
Criminal
Procedure Act 51 of 1977
(CPA) specifically provides for this eventuality.
[3]
S
v Ndwandwe
[2012]
ZAKZPHC 47 at [15]
[4]
DT
Zeffertt, AP Paizes and A St Q Skeen,
The
South African Law of Evidence
,
(2003), at 793
[5]
R
v Mokoena
1932 OPD 79
at 80
[6]
S
v Charles Tabane
(Case No.: SS 36/2013) (Unreported) at p 10
[7]
S
v J
1998
(2) SA 984
(SCA) at 1007F-1008A. All citations and footnotes have
been omitted
[8]
Id.
at 1009E-F. The application of the rule has also been dispensed with
in Namibia – see S v K
2000 (4) BCLR 405
(NmS) at 419E
[9]
It
is a notorious fact that many young boys, too, have over the years
been subjected to sexual molestation.
[10]
R
v Manda
1951
(3) SA 158
(A) at 163E-F
[11]
Woji
v Santam Insurance Co Ltd
1981 (1) SA 1020
(A) at 1028B-C
[12]
S
v Boesak
[2000] ZACC 25
;
2001
(1) SA 912
(CC) at
[23]
– [26]
[13]
2001
(2) SA 1222
(SCA) at [25]
[14]
2009
(1) SACR 552
(SCA) at [14] – [15]
[15]
2011
(1) SACR 40
(SCA) at [23]
[16]
S
v Bogaards
2013 (1) SACR 1
(CC) at [58] – [72]
[17]
State
v Chapman
[1997] ZASCA 45
;
1997
(2) SACR 3
at
5b-e