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[2015] ZASCA 201
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Mocumi v The State (323/2015) [2015] ZASCA 201 (2 December 2015)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
REPORTABLE/NOT
REPORTABLE
Case
No 323/2015
In
the matter between:
LENTIKILE
MICHAEL MOCUMI
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Mocumi
v The State
(323/2015)
[2015] ZASCA 201
(2 December 2015).
Coram:
Navsa, Cachalia,
Shongwe, Tshiqi and Dambuza JJA
Heard:
11
November 2015
Delivered:
2 December 2015
Summary:
Criminal law –
evidence
- contradictions in the evidence of child complainants in sexual
offence cases – contradictions not necessarily fatal
to state
case – evidence must be considered carefully – discussion
of onus borne by the State - court must be satisfied
that despite
contradictions the evidence constitutes proof beyond reasonable doubt
of commission of the offence and identification
of the perpetrator –
relevant considerations include the age and capacity of the child.
ORDER
On
appeal from:
North
West Division of the High Court, Mahikeng (Djaje AJ and Hendricks J,
sitting as a court of appeal):
The
following order is made:
The
appeal is upheld and the order of the court
below
is set aside and substituted with the following:
‘
The
appeal is upheld and the conviction and related sentences are set
aside.’
JUDGMENT
Dambuza
JA
(Shongwe
JA concurring):
[1]
The sexagenarian appellant was convicted by the Taung Regional Court
of the North West Province on a charge of raping a 12 year
old child.
He was sentenced to 15 years’ imprisonment. The magistrate
immediately granted him leave to appeal against both
the conviction
and sentence and he was released on bail pending the appeal. On 6
November 2014 the Northwest Division of the High
Court, Mahikeng
(Djaje AJ and Hendricks J) dismissed his appeal against conviction
and altered the sentence by suspending five
years of the 15 year
sentence. This appeal is against the conviction, special leave having
been granted by this court.
[2]
The charge sheet stated that the rape occurred during the period 1 to
28 February 2006. Broadly, the allegations on which the
charge was
based were that whilst transporting the complainant to school in his
vehicle the appellant had non-consensual sexual
intercourse with her
in the vehicle.
[3]
It was common cause before the regional magistrate that in 2006 the
complainant and her parents lived in Mokgareng Village,
Taung in a
house owned by the appellant’s in-laws. The complainant
attended school at Ntokwe Primary School, some distance
away from
home. The appellant provided transport for her and other children in
the vicinity in his van. Initially, the complainant’s
mother
paid the appellant for these services; but in about March 2006 she
stopped making payments for a reason I will discuss later
in this
judgment.
[4]
During July 2006 the complainant’s mother caused the
complainant to be examined by a nurse at the local clinic, Ms Cecilia
Mogadile. This was as a result of a suspicion held by the mother that
the appellant had had sexual intercourse with the complainant.
Before
taking the complainant to the clinic the complainant’s mother
confronted her with her suspicions. The complainant
responded by
crying. At the clinic the nurse confirmed that the complainant had
been sexually penetrated. On examining the complainant’s
private parts, the nurse found a number of scars indicating past
penetration. At first the complainant refused to divulge the identity
of the perpetrator and continued to cry. But after the nurse
instructed the mother to leave the consulting room, the complainant
told the nurse that the appellant had had sexual intercourse with
her.
[5]
Following the examination by the nurse, the complainant was taken to
the police and thereafter, for medical examination by a
local doctor,
Dr Gunaselva. The doctor also observed the scars on the complainant’s
private parts and concluded that they
were consistent with the
history of ‘sexual assault with penetration’ which had
been given to him.
[6]
In essence, the complainant’s evidence was that the appellant
had sexual intercourse with her on a February morning after
he had
picked her up from the usual spot en route to collect the other
children on their way to school. Whilst she was sitting
on the front
seat of the appellant’s van, the appellant asked to have sexual
intercourse with her. Thereafter the appellant
pulled her towards
him. They alighted from the front and got into the back of the van
where the appellant had sexual intercourse
with her despite her
refusal. During July 2006 the appellant came to her house and ask to
have sexual intercourse with her, but
she refused.
[7]
The appellant’s mother testified that her suspicions about the
appellant’s behaviour started in about March 2006,
when the
appellant told her to stop paying him for the complainant’s
transport. Some time thereafter the appellant visited
the
complainant’s home and requested that the complainant should go
and report to her maternal grandfather that ‘they’
would
not be able to go to church. On this occasion, the appellant offered
to lend the complainant a television set. He discouraged
the
complainant’s mother from telling her husband about the
television offer, saying he was lending it to the complainant
and not
the family. He brought the television to the complainant’s home
some days later. The complainant’s mother discussed
with the
appellant’s wife the appellant’s waiver of transport fees
and lending the complainant a television set. In
July of the same
year the complainant visited her mother’s parents. Whilst
there, she was sent by her grandmother to her
home to ask for food.
However, the complainant’s mother was visiting elsewhere and
had left the house keys at the appellant’s
home. The
complainant fetched the keys on the mother’s telephonic
instructions and went home. On her return, the complainant’s
mother was told by a neighbour, Ms Tjulu, that the appellant had
visited the complainant whilst the mother was away. This is the
incident that led to the complainant being taken to the clinic. The
mother’s evidence was that on learning about the appellant’s
visit to her home in her absence, she again went to discuss her
discomfort with the appellant’s wife who suggested that the
complainant be taken to the clinic.
[8]
Ms Jeanette Mento previously worked at a crèche run by the
appellant’s wife at the appellant’s home. She
confirmed
that she was present at the complainant’s home when the
appellant brought the television set for the complainant.
The
evidence of the nurse, Ms Mogadile was that she examined the
complainant on 18 July and observed healed scars on her private
parts. Dr Gunaselva testified on the contents of the J88 medico legal
report which he completed on his examination of the complainant.
[9]
The appellant denied ever having had sexual intercourse with the
complainant. His evidence was that, contrary to the evidence
of the
complainant and her mother, the complainant would always be the last
one to be fetched by him before going off to school.
No sexual
intercourse could have taken place in those circumstances. Regarding
payment for the complainant’s transport he
testified that the
complainant’s mother ‘was not paying (him)’. When
he confronted her about her failure to pay
her response was that in
future the complainant would only use the transport in winter. The
appellant then offered to take the
complainant to school even when
the mother would not be paying. He denied that he had lent the
television set to the complainant
specifically. According to him he
allowed the complainant’s family to use it together with a
wardrobe and a coal stove which
were in the house that they were
renting from his in-laws. He explained that his visit to the
complainant’s home in the mother’s
absence was to inspect
the house for maintenance purposes as he had always done, on behalf
of his ‘in-laws’.
[10]
Mr Clifford Moepeng testified that in 2006 he used to share transport
to and from school with the complainant. According to
him the
appellant’s routine when fetching the children was always to
fetch two other children first, P and M, from Rooiwal,
then himself,
and only thereafter, the complainant, then they would proceed to
school. The State also led the evidence of police
officer Mr Ernest
Monname who recorded the complainant’s police statement. Mr
Monname testified in relation to the spot or
place where the sexual
intercourse took place in the appellant’s van. His evidence was
that the complainant had told him
this took place on the front seat
of the van.
[11]
In convicting the appellant the magistrate acknowledged the
discrepancies in the evidence tendered by the State, particularly
the
contradictions in the evidence of the complainant, her mother and Dr
Gunaselva. But he was satisfied that the evidence led
constituted
proof beyond reasonable doubt that the appellant had had sexual
intercourse with the complainant.
[12]
Before I consider the specific grounds on which the appeal is brought
it is necessary to clarify the issues on appeal as I
see them.
Although, in the court a quo all the material elements of the charge
against the appellant had to be proved, it does
not appear that the
evidence that the complainant had been sexually penetrated was in
serious dispute. When Dr Gunaselva started
giving evidence he was led
by the prosecutor on the injuries and resultant scars on the
complainant’s private parts. The
doctor had observed five scars
on the complainant’s genitalia. He had also observed and
recorded in the medico legal report
(J88) that the complainant’s
hymen was not intact. His conclusion, as recorded in the J88, was
that the scars were ‘compatible
with remote sexual
penetration’.
[13]
Of course the doctor could not have authoritatively testified as to
how, exactly, the complainant was penetrated. All he could
do was to
give an opinion as to his clinical findings and the history related
to him by the complainant and his mother. Therefore
his response to a
question by the prosecutor as to whether it was his ‘conclusion
that there was sexual intercourse with
penetration’ must be
understood in this context. His response was ‘yes that is the
possibility’ and ‘there
are other possibilities too’.
[14]
Clinical findings and conclusions drawn by doctors who examine
complainants in sexual assault cases are generally accorded
significant weight by our courts as an indication that sexual
intercourse probably did or did not occur, particularly in relation
to young children. The identity of the perpetrator then becomes
determinable on its own merits. In this case there was never any
evidence that the injuries on the complainant’s private parts
were caused by anything other than sexual intercourse. The
finding by
the magistrate that the evidence proved beyond reasonable doubt that
the complainant was raped must be accepted to be
correct. It is my
view therefore that the pertinent issue in this appeal is the
magistrate’s finding that the appellant was
the perpetrator.
[15]
It was submitted on behalf of the appellant that the identification
of the appellant by the complainant as the perpetrator
probably
resulted from her mother’s suggestions in the course of
confronting her at home and when giving history to the nurse
at the
clinic. The submission is also based on an entry in the J88 and the
evidence by the doctor that the complainant and her
mother told him
that the complainant had been sexually abused by a relative. The
entry in the J88 reads:
‘
2006
January to 7 June she was sexually abused by a known gentleman, a
relative.’
[16]
I agree that the complainant’s evidence as to the identity of
the perpetrator had to be considered carefully. She was
a single
witness who was a child. It is trite that in sexual assault cases
caution must be exercised when considering evidence
of young children
who are prompted by leading questions on whether or by whom they were
sexually assaulted. Immaturity might cause
the child to believe that
the suggestion is true.
[17]
In her evidence, the complainant denied that she told the doctor that
she was raped by a relative. The complainant’s
mother could not
recall what her response to the doctor’s question as to the
identity of the culprit was. On the other hand,
the doctor insisted
that what he wrote was information given by the complainant and her
mother. In my view the reference to a relative
makes no sense in view
of the fact that the complainant had already identified the appellant
as the perpetrator to the nurse and
to the police. The magistrate’s
finding that the reference to a relative was probably a
misunderstanding between the doctor
and the complainant and her
mother is, in my view, correct. From the record it appears that the
complainant’s and the appellant’s
families were
relatively closely associated. They attended the same church; the
complainant’s mother discussed her concerns
about the
appellant’s behaviour with the appellant’s wife more than
once; and she left her home keys at the appellant’s
home when
she went away. During cross examination both the complainant and her
mother appeared to have intimate familiarity with
the appellant’s
home circumstances; for example, they knew that the appellant’s
children had their own television set.
Hence my view that a
misunderstanding probably crept into their description of the
perpetrator to the doctor; more so that there
is no evidence that the
discussion between the doctor, the complainant and her mother was
conducted through an interpreter. Another
patent example of a
misunderstanding is the recordal by the doctor of the complainant’s
age as eight years. It is relevant
that English is not the first
language of the complainant, her mother and the doctor. Further, the
person to whom the complainant
first divulged the incident was a
trained professional who calmed her down and coaxed her, not by
focusing on the identity of the
perpetrator, but by alerting her to
dangers of sexually transmitted diseases and HIV.
[18]
A further leg on which the appeal stands relates to the dates on
which the incident happened. As stated, the charge was that
the
appellant raped the complainant during the period 1 to 28 February
2006.The examining doctor testified that he was told by
the
complainant and her mother that the rape occurred during the period
February to 7 June 2006 as recorded on the J88. The submission
on
behalf of the appellant was that this uncertainty about the date of
the incident was prejudicial to him and rendered his trial
unfair. I
do not agree. It is correct that a charge must set forth the relevant
offence in such manner and with such detail as
to be reasonably
sufficient to inform the accused of the nature of the charge to
enable an accused to prepare his defence.
[1]
On the other hand,
provision is made in the Criminal Procedure Act 51 of 1977 (CPA) for
rectifying defective charges and clarifying
any vagueness or
ambiguity.
[2]
[19]
In this case the charge specified a clearly circumscribed period
during which the offence was alleged to have occurred. The
appellant
was able to plead thereto without any difficulty. The reference, in
the J88 and the evidence of the doctor, to the period
February to
June could only be a discrepancy in the evidence supporting the
charge. Equally, the complainant’s momentary
failure during
cross-examination to recall the month during which the incident
occurred fell to be considered as such. These discrepancies
could
not, in my view, render the appellant’s trial unfair.
[20]
Regarding the complainant’s evidence as to when the rape
occurred, at the start of her evidence she was led by the prosecutor
to ‘explain what happened during the month of February 2006’.
During cross-examination she was asked if she could remember
the
month during which the rape occurred. At first she could not, but she
later did. Considering the age of the complainant, both
at the time
of the incident and when she was giving evidence, and the lapse of
time between the incident and the trial, I do not
think that her
momentary lapse of memory was unreasonable or that it was an
indication that she was fabricating her evidence. On
the whole, apart
from that moment in cross-examination the complainant was consistent
about the month during which the rape occurred.
[21]
A related submission was that on the doctor’s evidence the
incident could not have happened in February 2006. However
the
doctor’s evidence that the only thing he could conclude with
certainty from the injuries was that the incident occurred
more than
a month prior to the date of examination does not support that
submission.
[22]
Much was made, both before the regional court and in this court, of
the lack of clarity in the complainant’s police statement
and
her evidence in court regarding where exactly, in the appellant’s
van, the sexual intercourse took place. As already
stated, in her
evidence the complainant stated that sexual intercourse took place at
the back of the van. During cross-examination
it was put to her that
she had told Police Officer Monname that the incident happened on the
front seat of the van. The relevant
portion of the statement reads as
follows:
‘
On
his arrival as I was standing next to the electricity house I got
into the van in front seat and I sat on passenger side and
he pulled
me next to him and undress my panty and he continue having sex with
me without proposed any relationship to me and I
do feel that his
penis is into my vagina and he never used a condom and I did feel
pain of what has happened to me as it was for
the first time I have
sex with a male person.’
[23]
The complainant insisted during cross-examination that she had told
the police officer that sexual intercourse happened at
the back of
the van. English is not Mr Monname’s first language. During
cross-examination he testified that the conversation
between himself,
the complainant and the complainant’s mother was in Setswana.
Although he insisted that he read the statement
back to the
complainant after taking it, the complainant denied that it was ever
read back to her. As evident from the quoted portion,
the statement
did not result from a careful leading or guidance of the complainant
to explain the details of the incident. Mr Monname
admitted that the
statement probably did not contain all the details of the incident.
For these reasons its contents cannot bear
the same weight in the
same light as the complainant’s evidence in court.
[3]
[24]
The complainant was criticized for failing to report the rape when
the appellant was not in her presence and she was in the
security of
her home. But it hardly needs to be said that the effect of the
threat which she said the appellant had uttered to
her would not have
ceased just because she was home. It is a well-established fact that
even adult victims of sexual abuse often
delay or do not report the
rape or sexual assault, either because of threats uttered to them by
the perpetrators or for fear of
the social stigma, shame and
humiliation of having been raped.
[4]
Naturally these
emotions would have been heightened in the case of the complainant
who was a child at the time. The conduct of the
complainant in this
case was consistent with recognised behaviour of victims of sexual
abuse. For some time she hid the fact that
she had been sexually
abused. In court she was reluctant to give details about the
incident. She resolved not to tell her mother
about it even when the
mother confronted her. In the J88 the doctor recorded that the
complainant was agitated at the time of examination.
The
complainant’s fear must have been compounded by the fact that
the appellant was a close friend of her family and to an
extent, a
person
in
loco parentis
over
her. In her evidence she repeatedly stated that she was scared of
him. The circumstances in which the complainant found herself
were
complicated and must have been overwhelming for a 12 year old. It
would be unreasonable to expect that her fear would dissipate
when
she was in the presence of her parents.
[25]
A further submission relates to the evidence of the complainant and
that of her mother as to whether the complainant bled as
a result of
the sexual encounter and whether she or her mother washed her soiled
underwear. It was the complainant’s evidence
that she bled as a
result of sexual intercourse with the appellant. She further
testified that she washed her soiled underwear
as she used to wash
her underwear at the time. Contrary to her evidence, her mother,
during cross-examination, testified that she
was the one who used to
wash the complainant’s panties at the time of the incident and
she never observed any blood thereon.
This contradiction, it was
submitted on behalf of the appellant, was material and was an
indication that the complainant’s
evidence that she was raped
by the appellant was untrustworthy. But again, the issue whether the
complainant bled is really relevant
in relation to whether she was
penetrated. As I have stated, proof beyond reasonable doubt of
penetration is found in the medical
evidence tendered. The
complainant was 12 years old when she was penetrated. The
probabilities favour her evidence that she bled
on being penetrated.
As to the discrepancy between her evidence and that of her mother on
this aspect her evidence would be more
reliable than her mothers. The
magistrate remarked that the mother came across as ‘a very
unsophisticated person who did
not appear to have a good memory’.
He remarked that her powers of recollection were at times poor, but
she readily conceded
forgetfulness.
[26]
Other contradictions in the evidence of the complainant pertain to
whether the complainant undressed herself or the appellant
did and
whether the threat to kill her (if she told anyone about the
incident) was uttered before or after the sexual intercourse.
Regarding the first, at some stage during cross-examination she
testified that the appellant undressed her before having sexual
intercourse with her. She later said she undressed herself. When she
was confronted about the contradiction she explained that
she
‘forgot’. On the second issue, when she was first asked
why she did not resist she responded that the appellant
had
threatened to kill her with a firearm. Later, when asked when,
exactly, the threat was uttered she responded that it was after
the
sexual intercourse. Thereafter she repeated that the threat came
after sexual intercourse.
[27]
The remarks made by the magistrate on the demeanour of the
complainant and her mother are relevant. He referred to the
complainant’s
immaturity at the time of the incident and at the
time of the trial. This, according to him, ‘emerged from the
manner in
which she explained the events’. It is my view that
her capacity to understand and respond to questions must be
considered
in light of her progression only up to Grade 5 at the age
of 15 years at the time of the trial. According to the magistrate the
complainant had to be prodded to explain what happened. She was
reluctant to give details of the incident without being asked
specific questions. She ‘just wanted to quickly explain the
rape only’. The record reveals that she broke down twice
whilst
giving evidence. The magistrate formed the view that the complainant
exhibited genuine emotions and answered questions ‘very
spontaneously’. He found, however, that despite spending an
extended period of time in the witness stand, the complainant
did not
appear to exaggerate the incident; instead she testified in a ‘very
simple manner’.
[28]
I agree with
his finding that despite the shortcomings in the evidence of the
complainant and her mother their evidence bears features
of
originality and trustworthiness. For example, they both insisted that
the appellant’s routine was to fetch the complainant
first and
thereafter the other children. Their spontaneous admission that at
their home there was also a wadrobe and a stove that
belonged to the
owners of the house as the appellant stated, while insisting that the
appellant specifically lent the television
set to the complainant is
significant. But their evidence was not the same on everything. The
complainant readily admitted that
she had no knowledge about
arrangements between her parents and the appellant regarding the
inspection of the house. She did not
know the exact details regarding
the payment arrangements that her mother and the appellant
hadtestified on. When asked if the
appellant had given her presents
she replied that he had only lent her a television set. Her mother
readily admitted that the appellant
had connected power to their
house and had once fixed a broken window. She also readily admitted
that the nurse’s opinion
was that the complainant had had
sexual intercourse more than once. When it was put to her that the
appellant would deny ever threatening
the complainant she replied: ‘I
do not know because it was just the two of them in the vehicle [the
complainant] is the one
who can tell what happened. Her spontaneous
estimate of March as the time when the appellant told her to stop
payment is consistent
with the sequence of the relevant events. It
was not in dispute that she discussed the unusual favours extended by
the appellant
with the appellant’s wife even before the visit
that led to the complainant being taken to the clinic.
[29]
Indeed, at first glance the evidence of the appellant and his witness
Mr Moepeng appears clean and not as afflicted by shortcomings
as that
of the complainant and her mother. That, in my view, is because the
appellant’s defence was a bare denial. The only
detail was in
the order of picking up the children. Naturally that would limit the
extent to which he and his witness would make
mistakes. But even then
his evidence was not without inconsistencies and obvious lies.
[30]
Firstly, his explanation for the favours he extended to the
complainant was not reasonably possibly true. Regarding payment
for
the school transport, according to him he confronted the
complainant’s mother because she had failed to pay him. But
when the mother sought to withdraw the complainant from the transport
arrangement he insisted that the complainant should continue
travelling with him even though the mother was not paying. The
explanation does not make sense. The evidence of the complainant
and
her mother about the television set was confirmed by Ms Mento who was
not only an independent witness but the appellant’s
former
employee. The appellant’s evidence on this aspect was false
beyond reasonable doubt. And there can be no reasonable
doubt that
these favours were designed to secure the complainant’s silence
about the incident. Regarding his visit to the
complainant’s
home he explained that he went there for routine inspection of the
house. This was on a Saturday. On his own
evidence it was only the
third time he was visiting the house (the first and the second
instance must be when he connected the
power and fixed the window).
Coincidentally he chose the third day of maintenance to be a Saturday
when the complainant was alone
at home. The probabilities favour the
complainant’s version on this aspect as well.
[31]
It was put to the complainant that on that day the appellant found
her in the company of ‘Ntulu or Makazulu’, a
person who
the complainant insisted she did not know. In cross-examination
nothing was said to the complainant’s mother about
‘Ntulu
or Makazulu’. Instead, in his evidence
the
appellant testified that he found the complainant in the company of
Nangomeso. In my view Ntulu, Makazulu and Nagomeso were
a fabrication
designed to justify the appellant’s abnormal visit to the 12
year old complainant.
[32]
It was put to the complainant during cross examination that the
appellant’s routine was to first pick up G and her sister
from
Rooiwal. The appellant’s evidence was that he would pick up
‘the witness, P and his sister’. Thereafter
he would
drive back to Mogareng Village to pick up O and lastly the
complainant. O’s evidence was that the appellant first
fetched
P and M. It is also striking that O was only alerted in 2010
that he would have to testify at the trial, he could
clearly recall
that P, M and himself never missed a day of school in 2006, but he
could not recall whether the complainant did
miss some days at
school.
[33]
Consequently, I agree that when all the evidence is considered there
is no reasonable doubt that the appellant did have sexual
intercourse
with the 12 year old complainant. I would have dismissed the appeal.
______________________
N
Dambuza
Judge
of Appeal
Navsa
JA (Cachalia and Tshiqi JJA concurring)
[34]
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 against conviction should be dismissed. I shall in due course
set out the relevant parts of the evidence I consider
material.
[35]
At the outset, it is necessary to record that persons, especially
children, who allege that they were the victims of a sexual
offence,
should be treated with care and consideration from the commencement
of an investigation by the police and through the
rigours of a trial.
In
Director of Public Prosecutions, Transvaal v Minister of
Justice and Constitutional Development & others
[2009] ZACC
8
;
2009 (4) SA 222
(CC), the Constitutional Court said the following
(para 74):
‘
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.’
(footnotes
omitted.)
[36]
Furthermore, in
S v Jackson
[1998] ZASCA 13
;
1998 (1) SACR 470
(SCA), this court held (at 476e-f) that the cautionary rule in sexual
assault cases is based on an irrational and outdated perception.
It
unjustly stereotypes complainants in sexual assault cases as
particularly unreliable. It went on to say the following at 476e-g:
‘
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.’
[37]
However, in the adjudication process, sight should not be lost of the
fundamental principle of our law, that in a criminal
trial the burden
of proof rests on the prosecution to prove the accused’s guilt
beyond a reasonable doubt.
[5]
Not one of the
principles set out in this and the preceding paragraphs can be
sacrificed. One must necessarily guard against being
too readily
critical of child witnesses and, at the same time, avoid too readily
excusing material shortcomings in the State’s
case.
[38]
The charge sheet noted that the complainant was 12 years’ old.
It is important to note that the child complainant commenced
her
testimony without resort to an intermediary, in terms of s 170A of
the CPA. It was only when she began to cry, shortly after
she had
started testifying, that the State considered the use of an
intermediary. The magistrate recorded that an intermediary
would be
used because it was clear during the complainant’s testimony
that she was suffering and she was emotional and could
not manage.
Having regard to the history of the matter and the evidence available
to the State, which is set out in the judgment
by my learned
colleague, it ought to have been clear that the complainant would
require the assistance of an intermediary right
from the commencement
of her testimony. In this regard the State failed her.
[39]
The charge sheet stated that the offence in question occurred ‘upon
or about’ 1 – 28 February 2006. At the
commencement of
her evidence the complainant had no doubt that the rape about which
she complained had occurred during February
2006. Under
cross-examination the complainant was asked whether she could
remember the month during which the alleged offence had
occurred.
This time her answer was: ‘I do not remember.’ When she
was asked further why she had previously (at the
commencement of her
evidence in-chief), agreed that the offence had occurred in February,
she replied that she had been scared.
When asked where the prosecutor
had obtained February 2006 as the date during which the incident
occurred, she replied that he
had obtained it from her. When asked
why she could not now remember the date, she replied that the
incident had occurred a long
time ago. A short while thereafter she
was once again certain that the offence occurred during February
2006, saying the following:
‘
I
just remembered the date, I just remembered it.’
[40]
The official form completed by Dr Gunaselva who examined the
complainant and who testified on behalf of the State recorded
that he
had been told that she had been sexually abused between ‘January
to June 2006’. The complainant insisted that
she had not told
the doctor that the incident had occurred between January to June
2006. She was equally unyielding when she stated
that she had not
told the doctor that a relative had sexually abused her. He explained
that the dates he recorded as the time during
which the incident
occurred were supplied by the complainant’s mother. The nurse,
who testified in support of the State’s
case, stated that she
had asked both the complainant and her mother about the date on which
the rape had occurred and they said
that they did not know. It must
be borne in mind that the nurse saw the complainant and her mother
during July 2006, much closer
to the date of the alleged incident.
The trial appears to have been conducted between August 2008 and the
first half of 2011. A
further unsettling feature of the complainant’s
testimony in relation to the time during which the incident is
alleged to
have occurred is that when she was asked how early in the
morning it had happened, she said: ‘I do not remember’.
She
also said that there was no one on the streets. One would have
expected the obvious answer to be the time during which the
complainant
was usually fetched to be taken to school.
[41]
What is set out above is a varied date span across which the
appellant had to conduct his defence without an amendment having
been
made to the charge sheet in terms of s 86(1) of the CPA. Furthermore,
no thought was given to s 92(2) of the CPA which deals
with time
variances between the charge sheet and the evidence. Section 92(2)
(a)
raises
the question of prejudice that might be suffered by an accused. With
reference to the above it cannot, in my view, be said
that ‘on
the whole’ the complainant was consistent about when the
incident occurred. Given the inconsistencies, I fail
to see how it
can be said that the time period within which the offence was
committed was ‘clearly circumscribed’.
It becomes even
more inconsistent when one compares the complainant’s evidence
to the testimony of the doctor and the nurse.
It cannot simply be
excused on the basis that there was a ‘momentary lapse’
on the part of the complainant. The problems
surrounding the date of
the occurrence of the event are but one aspect to be taken into
account in the assessment of the complainant’s
credibility.
[42]
It is important to consider a little more closely the circumstances
leading up to the complainant’s identification of
the appellant
as the person who had raped her. The complainant testified that,
until her mother took her to the clinic, she had
not reported the
rape to anyone. Her mother’s motivation for taking her to the
clinic so that she could be examined was the
report by the neighbour
that the appellant had visited the child at the house in her absence.
As set out in the judgment of Dambuza
JA, that incident was connected
by the complainant’s mother to the prior gift of the television
set as well as to the waiver
by the appellant of the complainant’s
transport fees.
[43]
The evidence of the nurse, who saw the complainant at the clinic, was
that the latter’s mother had brought her to the
clinic saying
that she suspected that ‘a certain man’, who transported
her child to school, had raped her daughter.
She provided bases for
the suspicion. This communication took place in the presence of the
complainant. All the while the complainant
was crying. The
complainant’s mother informed the nurse that she had put her
suspicions to her child but that she had not
been forthcoming.
According to the nurse the mother informed her that the child just
kept on crying without divulging anything.
It was only after the
mother was requested to allow the nurse to question the child alone
that the complainant then informed her
that the appellant had raped
her in the back of the van which he used to transport her to school.
It is necessary to take into
account that, under cross-examination,
the nurse testified that she gained the impression that the child was
uncomfortable with
her mother in attendance because she was
‘continuously crying’. From the nurse’s examination
of the complainant’s
vagina she concluded that there had been
penetration.
[44]
The fact that the complainant’s mother, in her presence, had
informed the nurse about the circumstances giving rise to
her
suspicions and her simultaneous identification of the appellant as
the person she suspected of having raped her child, is not
without
significance in the overall assessment of whether the State had met
the onus of proving the appellant’s guilt beyond
a reasonable
doubt. It will be recalled that, according to the nurse the
complainant was uncomfortable in her mother’s presence.
In
addition her mother had already subjected her to an interrogation and
pressure. Even though the complainant’s mother left
the room
before the complainant then provided the nurse with a description of
events, the power of suggestion by her mother cannot
be discounted.
[45]
Under cross-examination the appellant’s legal representative
sought to explore whether the complainant understood what
the word
‘relative’ meant. She replied she understood the word to
mean that it was a family member who was ‘not
very close’.
The complainant was adamant that the appellant did not qualify as a
‘relative’. Dr Gunaselva who
was called by the State was
‘absolutely sure’ that the complainant and her mother had
told him that the perpetrator
was a relative. The contradictions
between State witnesses about whether a ‘relative’ was
identified as the perpetrator
cannot in my view simply be ignored on
an assumption that a ‘misunderstanding probably crept in’.
There was no evidence
of a misunderstanding. The contrary is true. Dr
Gunaselva was absolutely certain that this had been imparted to him
by both the
complainant and her mother. The complainant, even though
she understood the word ‘relative’ a little more
restrictively
than its actual meaning, nevertheless was clear that
the appellant was not her relative. This is yet another
unsatisfactory aspect
of the State’s case. It bears mentioning
that Dr Gunaselva’s evidence did not prove conclusively that
the complainant
had been raped, only that this was possible.
[46]
There are further material inconsistencies and contradictions that
impact on the strength of the State’s case. Under
cross-examination the complainant was quite clear that she was raped
at the back of the bakkie. She explained how she had been
taken from
the passenger cab to the rear of the vehicle where the appellant had
undressed her. The complainant was then confronted
with the statement
she made to the police, in which the following appears:
‘
I
[got] into his van in front seat and I sat on passenger’s side
and he pulled me next to him. And undressed my panty and
he continued
having sex with me without proposing any relationship with me.’
The
complainant testified that when she made the statement she had spoken
to the policeman in Setswana and that the policeman was
Setswana
speaking. Her response to the apparent contradiction between her
evidence in court and the statement she made to the police
was to
insist that she had told the police what she had told the court.
[47]
After her earlier testimony that the appellant had undressed her, as
set out in the preceding paragraph, the complainant testified
that
she had undressed herself. Confronted with this contradiction, she
said that her earlier statement in court had been a mistake
and that
she had forgotten what had in fact occurred.
[48]
The reliance on
Mafaladiso
is
not an adequate answer to the contradictions between the
complainant’s statement to the police and her evidence in
court.
Those contradictions, as pointed out above, were in fact
compounded by contradictions in her
viva
voce
evidence.
First, the passage in
Mafaladiso
indicates that it
must be carefully ascertained what the witness had intended to say on
each occasion. In the present case there
is no ambiguity in each of
the contradictory statements. Second,
Mafaladiso
states that regard
should be had to language and cultural differences between the
witness and the policeman taking the statement.
In the present case,
both the policeman and the complainant spoke Setswana.
[49]
The policeman, Mr Ernest Monname, testified that he had almost two
decades of experience as a policeman. According to him the
complainant’s mother was present when he took the former’s
statement. He was adamant that he had read it back to her
and that
she confirmed that she had understood the contents. He expressed no
doubt that the complainant told him that she had been
raped within
the passenger cab of the vehicle. She had told him that she was the
first to be picked up and that she had occupied
the front seat. He
was also certain that she had told him that the appellant had
undressed her. Under cross-examination by the
prosecutor who
suggested to him that he might have misunderstood the complainant, he
said the following:
‘
I
do not understand, because she said to me she was in the front seat.
She was pulled by the accused towards him and the rape occurred.’
Notwithstanding
the prosecutor’s persistence the witness insisted:
‘
That
is how I recorded it, and that is how it was related to me.’
In
the light of what is recorded above, the inconsistencies and
contradictions cannot be explained away simply on the basis that
the
policeman admitted that the statement probably did not contain all
the details of the incident. We are not dealing with omitted
details,
but factual averments in the statements that are inconsistent with
the subsequent testimony of the complainant and with
contradictions
in her
viva
voce
evidence.
[50]
It is not insignificant that the complainant testified that before
the appellant had raped her he had threatened to kill her
if she told
anyone about the deed he was about to perpetrate. This has to be
contrasted with the visit to her house in respect
of which she
testified that she had refused to have sexual intercourse with him.
It does not explain her apparent fear whilst in
a public place as
against her being resolute when she was on her own in her mother’s
house. The complainant described the
place where the appellant parked
the bakkie and raped her as being close to the container at which
they sold electricity. It appears
from the complainant’s
evidence under cross-examination that the location at which she was
raped was also the location at
which she boarded the motor vehicle in
order to be transported to school. The complainant’s mother, in
insisting that the
complainant was the first to be collected on the
transport route, testified that she sometimes saw the appellant
collecting her
child at a spot close to her house. It does seem
strange that the appellant would have chosen a visible spot at which
to perpetrate
the rape.
[51]
It is important to consider the complainant’s testimony that
she had bled as a result of being raped and that as a result
there
was blood on her panties. The complainant’s mother testified
that she used to wash the complainant’s panties
and that she
had not observed any blood on her daughter’s underwear. The
complainant, on the other hand, said that she used
to wash her own
panties. This contradiction is material and cannot be explained away
simply on the basis that the bleeding was
only relevant in relation
to whether the complainant was penetrated and that this aspect had
been put beyond doubt by the medical
evidence, which I have said is
neutral. The absence or presence of blood on the panties is material
and is relevant in relation
to credibility. It is also no answer to
say that on this aspect the appellant’s evidence should be
preferred above that of
her mother.
[52]
The regional magistrate, whilst ostensibly recognising that a
witnesses’ demeanour is not an infallible guide to the
truth,
nevertheless placed great store on the complainant’s demeanour.
In the past, counsel representing accused were often
apprehensive
about findings on demeanour that were intended as a shield against
appeals. In
President of the Republic of South Africa & others
v South African Rugby Football Union & others
[1999] ZACC 11
;
2000 (1) SA 1
(CC), the Constitutional Court, said the following
(para 79):
‘
The
advantages which the trial court enjoys should not, therefore, be
over-emphasised “lest the appellant’s right of
appeal
becomes illusory”. The truthfulness or untruthfulness of a
witness can rarely be determined by demeanour alone without
regard to
other factors including, especially, the probabilities . . . A
further and closely related danger is the implicit assumption,
in
deferring to the trier of fact’s findings on demeanour, that
all triers of fact have the ability to interpret correctly
the
behaviour of a witness, notwithstanding that the witness may be of a
different culture, class, race or gender and someone whose
life
experience differs fundamentally from that of the trier of fact.’
(footnotes
omitted.)
[53]
Almost a century ago, this court, in
Estate
Kaluza v
Braeuer
1926 AD 243
at 266-267 said the following:
‘
A
crafty witness may simulate an honest demeanour and the Judge has
often but little before him to enable him to penetrate the armour
of
a witness who tells a plausible story.’
In
S v Kelly
1980 (3) SA 301
(A) at 308D-E, in considering that
passage, stated:
‘
On
the other hand an honest witness may be shy or nervous by nature, and
in the witness-box show such hesitation and discomfort
as to lead the
court into concluding, wrongly, that he is not a truthful person.
’
The
magistrates’ observation on assessment of the complainant in
the witness-box is no substitute for an assessment of the
totality of
the evidence including the merits and demerits of the State’s
case.
[54]
My colleague, although accepting that at least on the face of the
evidence of the appellant and the witness, Mr Moepeng, does
not
appear to be ‘afflicted by shortcomings’ such as those in
relation to the complainant and her mother sought to
explain that by
stating that it was easy for them to avoid being seen as inconsistent
and contradictory because the complainant’s
version of events
was a bare denial. Mr Moepeng, who testified about the route that was
followed on the way to school, is criticised
by my colleague on the
basis that whilst he purported to recall that during 2006 he had not
missed a single day of school whilst
he could not say with the same
degree of certainty that the complainant had also been present every
day. I am unable to see that
as a proper basis for the rejection of
his evidence. In
S v Van der Meyden
1991 (1) SACR 447
(WLD),
the court said the following at 449j-450b:
‘
The
proper test is that an accused is bound to be convicted if the
evidence establishes his guild beyond reasonable doubt, and the
logical corollary is that he must be acquitted if it is reasonably
possible that he might be innocent. The process of reasoning
which is
appropriate to the application of that test in any particular case
will depend on the nature of the evidence which the
court has before
it. What must be borne in mind, however, is that the conclusion which
is reached (whether it be to convict or
to acquit) must account for
all the evidence. Some of the evidence might be found to be false;
some of it might be found to be
unreliable; and some might be found
to be only possibly false or unreliable; but none of it may simply be
ignored.’
Other
than the statement that it should be expected that the appellant and
his witness would show no discernable discomfort in their
testimony
because the appellant’s version is one of a bare denial of the
facts alleged by the State, no sustainable basis
is provided for
rejecting their evidence.
[55]
Dambuza JA considered the three incidents upon which the
complainant’s mother based her suspicions to be well-founded.
It will be recalled that the complainant’s version in relation
to each of these incidents cannot without more simply be rejected.
[56]
In any event the incidents in question are all circumstantial
evidence in respect of which one should have regard to what was
stated in the oft quoted passage
R v Blom
1939 AD 188
at
202-203:
‘
In
reasoning by inference there are two cardinal rules of logic which
cannot be ignored:
(1)
The inference sought to be drawn must be consistent with all the
proved facts. If
it is not, the inference cannot be drawn.
(2)
The proved facts should be such that they exclude every reasonable
inference from
them save the one sought to be drawn. If they do not
exclude other reasonable inferences, then there must be a doubt
whether the
inference sought to be drawn is correct.’
[57]
Even if one were to discount entirely the evidence of the appellant
in respect of the three incidents, which in the present
case one
cannot do readily, the incidents in themselves do not lead to the
ineluctable conclusion that the appellant was guilty
of the offence
with which he had been charged.
[58]
I am willing to accept that one or two shortcomings in the evidence
of the complainant might be expected and forgiven. However,
the
lengthy catalogue of materially unsatisfactory aspects referred to
above must redound to the benefit of the complainant. They
cannot be
replaced with the catalogue of excuses. In my view, for all the
stated reasons, it follows that the State failed to prove
its case
beyond a reasonable doubt. The appeal ought to succeed and the
conviction and related sentence should be set aside.
[59]
The following order is made:
The
following order is made:
The
appeal is upheld and the order of the court
below
is set aside and substituted with the following:
‘
The
appeal is upheld and the conviction and related sentences are set
aside.’
________________________
M S Navsa
Judge of Appeal
APPEARANCES:
For
the Appellant:
N L Skibi
Instructed by:
Legal Aid South
Africa, Mahikeng
Bloemfontein
Justice Centre, Bloemfontein
For
the Respondent:
N J Carpenter and D G Jacobs
Instructed by:
Director of Public
Prosecutions North West
Director of Public
Prosecutions, Bloemfontein
[1]
Section 84
of the
Criminal Procedure Act 51 of 1977
. Also see s 35(3)
(a)
of
the Constitution and
S
v Ismail & others
1993
(1) SACR 33
(D) 40
c-d.
[2]
For example,
further particulars may be requested in terms of s 87 of the
CPA.
[3]
S v Mafaladiso
en andere
2003
(1) SACR 583
(SCA) at 593
a
–
594
h.
[4]
Victim
Responses to Sexual Assault: Counterintuitive or Simply Adaptive?
Patricia L
Fanflik; 2007; Special Topics Series; Office of Violence Against
Women;: office of Justice Programs; United States
Department of
Justice
[5]
See P J Schwikkard
et
al
Principles of Evidence
3
ed (2009) at 558-559 for a useful, brief discussion for the
underlying philosophy. See also s 35(3)(
h
)
of the Constitution which sets out the presumption of innocence.