About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2014
>>
[2014] ZASCA 142
|
|
D v S (769/2013) [2014] ZASCA 142 (26 September 2014)
Links to summary
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
THE SUPREME COURT OF
APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 769/2013
Not reportable
In the matter between:
A[…] A[…] D[…]
S[…]
.............................................................................................................
Appellant
and
THE
STATE
.............................................................................................................................
Respondent
Neutral citation:
D[…]
S[…] v The State
(769/13)
[2014] ZASCA 142
(26 September
2014)
Coram:
Mpati
P, Bosielo and Willis JJA
Heard:
12 September 2014
Delivered: 26 September 2014
Summary: Indecent assault – the
evidence of forensic social worker assisting the court in finding
that an indecent assault
had occurred – appeal upheld in
respect of first count – appeal dismissed in respect of second
count.
ORDER
On appeal from:
The Free State
High Court, Bloemfontein (Lekale J and Thamage AJ sitting as the
court of appeal):
1 The appeal is upheld in respect of the
first count of indecent assault;
2 The conviction and sentence on the
first count are set aside;
3 The appeal is dismissed in respect of
the second count of indecent assault.
JUDGMENT
Willis JA ( Mpati P and Bosielo JA
concurring):
[1] This appeal is concerned only with
the correctness of the convictions of the appellant on two counts of
indecent assault. The
appellant was arraigned in the regional court,
Welkom on two counts of indecent assault and a count of rape. Section
3 of the Sexual
Offences Act 32 of 2007 (the Sexual Offences Act) was
applicable to the count of rape. He was convicted as charged and
sentenced
to five years’ imprisonment on the first count of
indecent assault and ten on the second. In respect of the rape
conviction,
the appellant was sentenced to 15 years’
imprisonment. The magistrate ordered these sentences to run
concurrently. The effective
sentence was therefore 15 years’
imprisonment. It was also ordered that his name be included in
the Register for Sexual
Offences in terms of s 50(2)
(a)
of the
Sexual Offences Act and that he de declared unfit to possess a
firearm in terms of the
Firearms Control Act 60 of 2000
.
[2] Both the appellant’s
application to the magistrate for leave to appeal and his subsequent
petition to the Free State
High Court were dismissed. He then
appealed against the dismissal of the petition. The high court
then, somewhat anomalously,
on hearing the petition granted leave to
appeal to this court. This court then found that what was properly
before it was not an
appeal in respect of the convictions and
sentences but an appeal against the dismissal of the petition. It
upheld the appeal against
the dismissal of the petition and granted
leave to appeal against his convictions and sentences, directing the
appeal to the Free
State High Court.
[3] The high court (Lekale J, with whom
Thamage AJ concurred) upheld the appeal against conviction and
sentence in respect of the
count of rape but confirmed the
convictions on the two counts of indecent assault. The high court
confirmed the sentence of five
years for the first count but reduced
the sentence on the second count to seven years’ imprisonment,
directing that the sentence
on the first count should run
concurrently with the sentence on the second count. On appeal, the
high court therefore reduced the
sentence to an effective term of
seven years’ imprisonment. The high court granted leave to
appeal to this court against
conviction only.
[4] The first count relates to incidents
in 2005 and/or 2006 at the home of the complainant’s paternal
grandmother in Loop
Street in Welkom, during which, on several
occasions, the appellant allegedly summoned the complainant to kiss
his lower naked
stomach and also exposed his penis to her.
[5] The second count relates to
incidents which allegedly occurred between September and December
2007 at the appellant’s
then home in Romeo Street in Welkom
during which he allegedly inserted his penis into the complainant’s
mouth and, from time
to time, ejaculated therein.
[6] The complainant had been very close
to her aunt, the wife of the appellant and had loved her cousins, the
children of the appellant.
The trigger which led to the disclosure of
the incidents by the complainant to her mother seems to have arisen
from the gift of
an item of jewellery which had been given to her by
her aunt. This gesture led the complainant to believe that her aunt
had learned
of the incidents and was trying to ‘buy’ her
silence.
[7] The appellant denied having
committed the offence. He said that: he had ‘no idea’ why
the complainant would falsely
have implicated him. He had no previous
convictions. The appellant is the uncle, by marriage, of the
complainant.
[8] The conundrum which has exercised
the mind of every court that has considered the matter is that the
case against the appellant
is critically dependent on the evidence of
the complainant who was a single witness, 12 years old when she
testified and six years
old when the alleged acts of indecent assault
occurred.
[9] A careful analysis of the evidence
is that it is safe to conclude that in Loop Street he may merely have
had the complainant
kiss the lower part of his naked stomach and did
not, in fact, deliberately expose his penis to her. Distasteful
though this incident
may have been, it does not constitute indecent
assault. The high court was therefore wrong to have confirmed the
conviction on
the first count.
[10] Insofar as the second count is
concerned, the complainant described how the appellant put his penis
into her mouth and how
thick liquid came out of his penis into her
mouth, which she spat out She described how she did not
see the liquid
but could taste it. This evidence as to the taste and
texture of ejaculate was, with exquisite delicateness, described by
Lekale
J as ‘sensory information’. When the
appellant’s counsel was asked how, if the complainant had not
experienced
the sensation of ejaculate in her mouth, she could
describe it in this way, it was submitted that she could have seen
pornographic
films. Seeing does not extend to the vivid descriptions
of ejaculate used by the complainant.
[11] There is a discrepancy in the
complainant’s evidence inasmuch as she said twice that the
appellant, while he had his
penis in her mouth, shook her head ‘back
and forwards’. Later she changed this to ‘left and
right’.
[12] The State called a forensic social
worker, employed by the South African Police Service, Charmaine De
Waal. She is vastly well
qualified and experienced in the field of
child sexual abuse. She undertook extensive consultations and
evaluations with the complainant.
She had about seven sessions with
the complainant, each lasting for approximately one and a half hours.
[13] It is intrinsic to the nature of
the forensic social worker’s task that not only would she hold
consultations with the
complainant but also that the complainant
would make reports to her. These reports are clearly hearsay. The
evaluation of the allegations,
however, went way beyond the relaying
of reports. The social worker conducted extensive scientifically
respectable tests with regard
to the complainant’s version of
events. It was described by Lekale J as a ‘multi-dimensional
framework’. The
social worker’s conclusion was
unequivocal: the complainant had experienced sexual abuse of the kind
described. Lekale J
dealt with her evidence well. By
considering the evidence of the forensic social worker, the court was
assisted in making
a correct finding that an indecent assault had,
indeed, occurred.
[14] If regard is had to the totality
of the evidence, in which the following are the key factors:
(a) the appellant
was an unconvincing witness;
(b) despite
discrepancies in her evidence, the complainant came across well;
(c) the evaluation
by the forensic social worker;
(d) the sensory
information relating to ejaculate given by the complainant,
it is clear, beyond reasonable doubt,
that the appellant is guilty on the second count. Although he enjoys
the benefit of the doubt
in respect of count one, it has no practical
effect on sentence as the sentence on count one was ordered to run
concurrently with
the sentence on count two.
[15] The following is the order of the
court:
1 The appeal is
upheld in respect of the first count of indecent assault;
2 The conviction
and sentence on the first count are set aside;
3 The appeal is
dismissed in respect of the second count of indecent assault.
_______________________
N P WILLIS
JUDGE OF APPEAL
APPEARANCES:
For the Appellant: J Nel
Instructed by:
R Oosthuizen Muller & Partners,
Welkom
c/o E G Cooper Majiedt Inc, Bloemfontein
For the Respondent: W J Harrington