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[2014] ZASCA 146
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Rammbuda v S (156/14) [2014] ZASCA 146 (26 September 2014)
THE SUPREME COURT
OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 156/14
DATE:
26 SEPTEMBER 2014
Not
reportable
In the matter
between:
PETRUS
RAMMBUDA
...................................
APPELLANT
And
THE
STATE
...................................................
RESPONDENT
Neutral citation:
Rammbuda v The State (156/14)
[2014] ZASCA 146
(26 September 2014)
Coram: PONNAN,
SALDULKER JJA and DAMBUZA AJA
Heard: 12
September 2014
Delivered:26
September 2014
Summary: Evidence
– witnesses - competence of – child witness –
manner of questioning by presiding officer in
an enquiry in terms of
sections 162
and
164
of the
Criminal Procedure Act 51 of 1977
.
ORDER
On appeal from:
L.impopo High Court, Thohoyandou (Hetisani J) sitting as a court of
first instance.
1. The appeal is
upheld.
2. The conviction
and sentence are set aside.
JUDGMENT
Saldulker JA
(Ponnan JA and Dambuza AJA concurring):
[1] The appellant,
Mr Petrus Rammbuda, was convicted on 4 November 2002 in the regional
court, Thohoyandou of the rape of a seven
year old girl. Following
the conviction, the regional magistrate stopped the proceedings and
committed the appellant for sentencing
by the high court in terms of
section 52(1)(b)
of the
Criminal Law Amendment Act 105 of 1997
. In
the high court, Hetisani J confirmed the conviction and sentenced the
appellant to life imprisonment. The appellant appeals
to this court
against the conviction and sentence with the leave of the high court.
[2] Before us it was
argued that two of the child witnesses, including the complainant on
the rape charge, had not been properly
sworn or admonished in terms
of
s 164
read with
s 162
of the
Criminal Procedure Act 51 of 1977
prior to them testifying in support of the State’s case.
Furthermore, it was submitted that even if the evidence of the
complainant had been properly received by the trial court, it was
riddled with contradictions and inconsistencies. Accordingly,
so the
argument went, the conviction fell to be overturned.
[3] In regard to the
complainant, the record reads:
‘Court: Right
are you PN?
PN: Correct.
Court PN are you
already in school?
PN: Yes.
Court: In what
standard or grade are you now?
PN: Grade 2.
Court: Grade 2. Now
at this stage PN what it means to tell truth, what is the difference
between the truth and a lie?
PN: Yes I know
Court: In court we
only tell the truth and you do not tell us lies right. What is also
important do not come and tell us what
other people told you to come
and tell us, we only want what you have seen and what you have
experienced, is that clear?
PN: Correct.
Court: You are
caution to tell the truth.’
[4]
Sections 162
to
164
of the
Criminal Procedure Act provide
:
‘162. Witness
to be examined under oath.
(1) Subject to the
provisions of
sections 163
and
164
, no person shall be examined as a
witness in criminal proceedings unless he is under oath, which shall
be administered by the presiding
judicial officer or, in the case of
a superior court, by the presiding judge or the registrar of the
court, and which shall be
in the following form:
“I swear that
the evidence that I shall give, shall be the truth, the whole truth
and nothing but the truth, so help me God.”
(2) If any person to
whom the oath is administered wishes to take the oath with uplifted
hand, he shall be permitted to do so.
163. Affirmation in
lieu of oath.
(1) Any person who
is or may be required to take the oath and–
(a) who objects to
taking the oath;
(b) who objects to
taking the oath in the prescribed form;
(c) who does not
consider the oath in the prescribed form to be binding on his
conscience; or
(d) who informs the
presiding judge or, as the case may be, the presiding judicial
officer, that he has no religious belief or that
the taking of the
oath is contrary to his religious belief,
shall make an
affirmation in the following words in lieu of the oath and at the
direction of the presiding judicial officer or,
in the case of a
superior court, the presiding judge or the registrar of the court:
“I solemnly
affirm that the evidence that I shall give, shall be the truth, the
whole truth and nothing but the truth”.
(2) Such affirmation
shall have the same legal force and effect as if the person making it
had taken the oath.
(3) The validity of
an oath duly taken by a witness shall not be affected if such witness
does not on any of the grounds referred
to in subsection (1) decline
to take the oath.
164. When unsworn or
unaffirmed evidence admissible.
(1) Any person who,
is found not to understand the nature and import of the oath or the
affirmation, may be admitted to give evidence
in criminal proceedings
without taking the oath or making the affirmation: Provided that such
person shall, in lieu of the oath
or affirmation, be admonished by
the presiding judge or judicial officer to speak the truth.
(2) If such person
wilfully and falsely states anything which, if sworn, would have
amounted to the offence of perjury or any statutory
offence
punishable as perjury, he shall be deemed to have committed that
offence, and shall, upon conviction, be liable to such
punishment as
is by law provided as a punishment for that offence.’
[5] In Director of
Public Prosecutions, Transvaal v Minister of Justice and
Constitutional Development & others
2009 (4) SA 222
(CC) paras
165–167, the Constitutional Court said:
‘The practice
followed in courts is for the judicial officer to question the child
in order to determine whether the child
understands what it means to
speak the truth. As pointed out above, some of these questions are
very theoretical and seek to determine
the child's understanding of
the abstract concepts of truth and falsehood. The questioning may at
times be very confusing and even
terrifying for a child. The result
is that the judicial officer may be left with the impression that the
child does not understand
what it means to speak the truth and then
disqualify the child from giving evidence. Yet with skilful
questioning, that child may
be able to convey in his or her own child
language, to the presiding officer that he or she understands what it
means to speak
the truth. What the section requires is not the
knowledge of abstract concepts of truth and falsehood. What the
proviso requires
is that the child will speak the truth. As the High
Court observed, the child may not know the intellectual concepts of
truth or
falsehood, but will understand what it means to be required
to relate what happened and nothing else.
… When a
child, in the court's words, cannot convey the appreciation of the
abstract concepts of truth and falsehood to the
court, the solution
does not lie in allowing every child to testify in court. The
solution lies in the proper questioning of children;
in particular,
younger children. The purpose of questioning a child is not to get
the child to demonstrate knowledge of the abstract
concepts of truth
and falsehood. The purpose is to determine whether the child
understands what it means to speak the truth.’
[6] In S v Raghubar
2013 (1) SACR 398
(SCA) paras 4–5 the following is stated:
‘The reason
for giving evidence under oath
(s 162)
, affirmation
(s 163)
or
admonishment
(s 164)
is to ensure that the evidence given is
reliable.
Section 192
of the
Criminal Procedure Act declares
generally that unless specially
excluded, all persons are both competent and compellable witnesses. A
witness is competent to testify
if his or her evidence may properly
be put before the court. If a child does not have the ability to
distinguish between truth
and untruth, such a child is not a
competent witness. It is the duty of the presiding officer to satisfy
himself or herself that
the child can distinguish between truth and
untruth. The court can also hear evidence as to the competence of the
child to testify.
Such evidence assists the court in deciding (a)
whether the evidence of the child is to be admitted; and (b) the
weight (value)
to be attached to that evidence. The maturity and
understanding of the particular child must be considered by the
presiding judicial
officer, who must determine whether the child has
sufficient intelligence to testify and a proper appreciation of the
duty to speak
the truth. The court may not merely accept assurances
of competency from counsel. The language used in all three sections
is peremptory.’
[7] In S v Matshivha
2014 (1) SACR 29
(SCA) paras 10–11, this court stated that:
‘The reading
of
s 162(1)
makes it clear that, with the exception of certain
categories of witness falling under either
s 163
or
164
, it is
peremptory for all witnesses in criminal trials to be examined under
oath. And the testimony of a witness, who has not been
placed under
oath properly, has not made a proper affirmation or has not been
properly admonished to speak the truth as provided
for in the Act,
lacks the status and character of evidence and is inadmissible.
Section 164(1)
is
resorted to when a court is dealing with the admission of evidence of
a witness who, from ignorance arising from youth, defective
education
or other cause, is found not to understand the nature and import of
the oath or the affirmation. Such a witness must,
instead of being
sworn in or affirmed, be admonished by the judicial officer to speak
the truth. It is clear from the reading of
s 164(1)
that for it to be
triggered there must be a finding that the witness does not
understand the nature and import of the oath. The
finding must be
preceded by some form of enquiry by the judicial officer, to
establish whether the witness understands the nature
and import of
the oath. If the judicial officer should find after such an enquiry
that the witness does not possess the required
capacity to
understand the nature and import of the oath, he or she should
establish whether the witness can distinguish between
truth and lies
and, if the enquiry yields a positive outcome, admonish the witness
to speak the truth.’
[8] Here the enquiry
conducted by the trial court into the competency of the complainant
(who was eight years old when she testified)
in terms of
s 162
read
with 164 was wholly inadequate. The questioning failed to establish
whether the child had: (a) the capacity to distinguish
truth and
untruth; or (b) had a proper appreciation of these abstract concepts
‘truth’ and ‘untruth’ and
was thus a
competent witness. As was pointed out in Matshiva [i]t is clear from
the reading of
s 164(1)
that for it [that section] to be triggered
there must be a finding that the witness does not understand the
nature and import of
the oath’. There was no such finding by
the court in this instance. In any event, having concluded, it would
seem, that the
answers elicited in response to the questions posed,
did not afford it an appropriate measure of comfort for the oath to
be administered,
the record reflects that the child was simply
cautioned by the court to tell the truth. Cautioning the child to
tell the truth
(whatever that may mean) was far from sufficient to
satisfy requirements of
S 164
of the Act. That section imposed a duty
on the presiding judicial officer to admonish the child to speak the
truth. What occurred
in this instance fell far short of a proper
admonition. The testimony of the complainant thus lacked the status
and character of
evidence. Counsel for the State was constrained to
concede as much.
[9] The same line of
questioning appears to have been followed by the court in regard to
the complainant’s friend, PM who
was also eight years old at
the time of giving evidence, and thus the enquiry in regard to PM
suffers the same deficiencies as
that of the complainant.
[10] In any event,
even if the evidence had been properly admitted by the trial court,
it was insufficient to sustain a conviction
in the charge of rape.
The complainant’s evidence and that of her aunt Ms Mchaba, to
whom the first report of the rape was
made, was not analysed, nor
were the contradictions and the inconsistencies in their evidence
properly considered and assessed
by the trial court.
[11] The only
evidence regarding the rape is that of the complainant herself. Her
evidence was poor and unconvincing in material
aspects. In her
examination-in-chief, the complainant testified that during the rape,
the accused undressed her, threatened her
with a knife, brought her
down onto the carpet and put some pieces of cloth inside her mouth.
He then climbed on top of her and
began ‘abusing’ her.
She stated that although she was injured in her vagina, she did not
bleed but there was some ‘greenish
thing flowing from her
vagina’. When she arrived home after the incident, she was
sent to buy liquor. She did not report
the incident to her
grandmother. The following day she was told by her grandmother not to
go to school. Up to that stage she had
not divulged her experience of
the rape by the appellant to anyone. On the following day the
complainant testified that her aunt
Ms Mchaba arrived at her home.
Her aunt examined her in the presence of both her mother and her
grandmother. She was then taken
to the hospital.
[12] However, when
her aunt Ms Mchaba testified, her evidence as to what the complainant
related to her differed materially from
the complainant’s
testimony. Ms Mchaba testified that on a date she could not recall,
she noticed that the complainant was
limping. She then questioned the
complainant who informed her that she had visited the appellant’s
homestead requesting the
use of the toilet. The appellant then took
her into his house, put her on top of a bed, climbed on top of her
and ‘raped’
her. He had blocked her mouth with his hand
and after raping her, he warned her not to tell anyone about it,
threatening to kill
her if she did. Ms Mchaba then examined the
complainant and found that there was a cut in the complainant’s
vagina, that
she was bleeding and that there was a white discharge on
her vagina. She then telephoned the complainant’s mother and
went
to the home of the complainant’s grandparents where she
reported the rape incident. Thereafter the complainant was taken to
hospital.
[13] Apart from the
above contradictions in the evidence of the complainant and that of
her aunt, the medical report relating to
the complainant is also
problematic. It is a troubling feature of this case that the medical
doctor who examined the complainant,
Dr Molala, was not called to
testify. The medical report does not contain the date and the time of
the medical examination of the
complainant, nor the date when Dr
Molala found the injury that he noted on the medical report.
[14] It must follow,
as counsel for the State was constrained to concede, that the
conviction cannot be sustained. In the result
the appeal is upheld
and the conviction and sentence are set aside.
H SALDULKER
JUDGE OF APPEAL
Appearances:
For
appellant: M.J Manwadu
Instructed
by:Justice Centre, Thohoyandou
For respondent:
R.J Makhera
Instructed by:
Director of
Public Prosecutions,Thohoyandou