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[2013] ZASCA 69
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Nedzamba v S (911/2012) [2013] ZASCA 69; 2013 (2) SACR 333 (SCA) (27 May 2013)
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IN THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
CASE NO: 911/2012
Reportable
In the matter between:
JAMES AZWINNDINI
NEDZAMBA
......................................................................
Appellant
and
THE STATE
.......................................................................................................
Respondent
Neutral Citation:
Nedzamba v S (911/2012)
[2013] ZASCA 69
(27 May 2013).
Coram:
NAVSA,
BRAND, TSHIQI & PETSE JJA, ZONDI AJA
Heard:
17 May 2013
Delivered:
27 May
2013
Summary: Criminal law
– rape – indictment containing no reference to
provisions of the
Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32 of
2007
– susceptible to amendment on appeal – no prejudice
–
convictions
and related sentences liable to be quashed and set aside on basis
of fundamental
irregularities – cross-examination restricted or prevented –
leading questions on
critical issues permitted – unjustified interventions by trial
judge – no care
taken in relation to child witness – convictions and sentences
set
aside.
______________________________________________________________________
ORDER
______________________________________________________________________
On appeal from
:
The Limpopo High Court, Thohoyandou (Hetisani J sitting as court of
first instance).
The following order is
made:
The appeal is upheld.
The convictions and the
sentences imposed by the High Court are quashed and set aside.
______________________________________________________________________
JUDGMENT
______________________________________________________________________
NAVSA JA, (BRAND, TSHIQI
& PETSE JJA, ZONDI AJA CONCURRING):
[1] The appellant, Mr
James Azwinndini Nedzamba, was indicted in the Limpopo High Court,
Thohoyandou (Hetisani J) on two counts
of rape. On 13 March 2009 he
was convicted on those counts and two life sentences, to run
concurrently, were imposed. The present
appeal, with the leave of
this court, is directed both against the convictions and related
sentences.
[2] In this case there
were numerous mishaps, encompassing the investigation, the
prosecution, the trial and even the present appeal.
The result,
regrettably, is that there was a negative impact with resultant
injustice in relation to both the complainant and the
appellant.
[3] The State’s
case, as set out in the indictment and the summary of substantial
facts, was that on 17 March 2008, at her
home in Thohoyandou, the
complainant, a then 13-year old girl, was raped on two occasions by
the appellant. It was alleged that
the appellant, a Zion Christian
Church pastor, had imposed himself on the complainant in the manner
complained of under the pretext
of performing church rituals.
[4] The complainant, her
mother and her older brother testified in support of the State’s
case. The appellant’s defence
was one of alibi and he testified
that he had been at work at the relevant time and thus could not have
committed the said acts.
He was the only witness in his defence.
[5] At the end of a
judgment with sparse reasoning, the court below concluded as follows:
‘
[T]he state
must prove its case beyond any reasonable doubt. Secondly, the
accused’ version must appear to be reasonably true.
In this
instance the court does not believe that the accused was telling the
court the truth because he mentioned names of people,
when asked
where are those people, he cannot trace them, he has forgotten this,
he has forgotten that.
Therefore the court finds that the
version of the accused is rejected and the version of the state
witnesses is accepted and the
accused is found
GUILTY AS CHARGED
.’
[6] After conviction and
sentence, an application for leave to appeal was unsuccessful, hence
an application to this court which,
as stated above, was successful
and resulted in the present appeal. It appears that the appellant
had, pending finalisation of
this appeal, been incarcerated for more
than four years.
[7] In the court below,
the appellant raised no objection to the charge sheet. The heads of
argument on his behalf in this Court
relied primarily on the fact
that the indictment made no reference to the provision of the
Criminal Law (Sexual Offences and Related
Matters) Amendment Act 32
of 2007 (the Act), which came into operation on 16 December 2007. It
was submitted that the appellant
had been charged with the common law
offence of rape at a time when it had been abolished by the Act and
that consequently the
convictions and related sentences ought to be
set aside. Put simply, it was contended that the appellant had been
tried ‘on
[the] non-existent common law crime of rape’.
There are other grounds of appeal which I intend to deal with in due
course.
[8] The State in its
heads of argument, clearly without careful reflection, conceded that
the convictions and related sentences
were liable to be set aside on
the basis referred to at the beginning of the preceding paragraph. In
support of its concession
the State relied on the judgment of the
Constitutional Court in
S and another v Acting
Regional Magistrate, Boksburg
and another
2011 (2) SACR 274
(CC). Before the hearing a note was
sent to the parties through the Registrar’s office, referring
to authorities and indicating
that the parties would be required to
address the court on the correctness of the concession by the State.
[9] The ground on which
the State and the appellant initially relied is fallacious. Indeed,
it is troubling that the State so readily
made the concession
referred to. In oral argument before us, the State was constrained to
admit that the concessions had been made
without proper thought
concerning the ambit and the applicability of the Constitutional
Court judgment and the absurd consequences
that would follow. Counsel
for the appellant rightly followed suit and agreed that reliance on
that judgment was misplaced.
[10] It is necessary, to
avoid similar concessions and confusion which might arise in the
future, to carefully scrutinise the Constitutional
Court’s
judgment. It is especially important to do so because of the
objective of the Act, namely, to afford as much protection
as
possible to victims of sexual violence. The Constitutional Court
noted that the Act expressly repealed the common law of rape,
however
it went on to say the following:
‘
[R]ape
committed after the commencement of the Act is punishable under the
Act and not under the common law.’
1
[11] In that case the
Court was dealing with the question of whether the repeal of the
common law offence of rape was retrospective.
More specifically, the
Constitutional Court had to deal with the interpretation and
application of s 69 of the Act, which is a
transitional provision
that reads as follows:
‘
(1) All
criminal proceedings relating to the common law crimes referred to in
section 68 (1)
(b)
which
were instituted prior to the commencement of this Act and which are
not concluded before the commencement of this Act must
be continued
and concluded in all respects as if this Act had not been passed.
(2) An investigation or prosecution or
other legal proceedings in respect of conduct which would have
constituted one of the common
law crimes referred to in section 68
(1)
(b)
which
was initiated before the commencement of this Act may be concluded,
instituted and continued as if this Act had not been passed.
(3) Despite the repeal or amendment of
any provision of any law by this Act, such provision, for purposes of
the disposal of any
investigation, prosecution or any criminal or
legal proceedings contemplated in subsection (1) or (2), remains in
force as if such
provision had not been repealed or amended.’
[12] The Constitutional
Court was dealing with an accused who had been charged with rape
alleged to have been committed before the
repeal of the common law
offence of rape. At para 21 the following was stated:
‘
Moreover, in
the face of a presumption that common-law rape committed before the
commencement of the Act remained a crime capable
of prosecution by
the State, it is inconceivable that s 69 could convey a contrary
intention. The purpose is made manifest throughout
the statute,
particularly in its long title, its preamble, and its objects. The
Act proclaims its purpose “to afford complainants
of sexual
offences the maximum and least traumatising protection that the law
can provide”, and “to introduce measures
which seek to
enable the relevant organs of State to give full effect to the
provisions of this Act”, by “criminalising
all forms of
sexual abuse or exploitation”.’
[13] It is clear that the
Court was addressing circumstances and chronology materially
different to the circumstances of the present
case. That
notwithstanding, the Constitutional Court was sensitive to victims of
sexual offences and was intent on ensuring that
they were afforded
the full protection that the law provides. Significantly, at para 22
the following is stated:
‘
In the light
of these objects stated within the four corners of the Act itself, it
is impossible to interpret the provisions to
render any sexual
offences incapable of prosecution. In
New
Clicks
,
this court approved the rule laid down in
Venter
v R
,
that a court may depart from the clear language of a statute where it
–
“
would lead
to absurdity so glaring that it could never have been contemplated by
the legislature, or where it would lead to a result
contrary to the
intention of the legislature, as shown by the context or by such
other considerations as the Court is justified
in taking into
account.”
In this case, given that the clear
language does not lead to absurdity, there was no reason for the High
Court to depart from the
plain meaning of s 69. Accordingly, s 69 is
incapable of disclosing a contrary purpose. The presumption against
retrospectivity
must therefore prevail.’
[14] Even more
importantly, the Court, in conclusion, said the following:
‘
[23] Our
Constitution sets its face firmly against all violence, and in
particular sexual violence against vulnerable children,
women and
men. Given this, and the Act’s emphasis on dignity, protection
against violence against the person, and in particular
the protection
of women and children, it is inconceivable that the provision could
exonerate and immunise from prosecution acts
that violated these
interests. It follows that the High Court’s declaration of
constitutional invalidity cannot be confirmed,
and that the accused
person could and should have been charged under the common law.’
[15] Returning to the
facts of the present case a useful starting point is s 3 of The Act,
which reads as follows:
‘
Any person
(“A”) who unlawfully and intentionally commits an act of
sexual penetration with a complainant (“B”),
without the
consent of B, is guilty of the offence of rape.’
The common law defined
rape as follows:
‘
Rape
consists in unlawful intentional sexual intercourse with a woman
without her consent.’
[16] As can be seen, the
Act preserved rape as an offence. It made the definition gender
neutral and sought to broaden the offence
to include acts previously
excluded. Instead of being a limiting measure, the legislature
intended greater protection to victims
of sexual misconduct.
[17] It is true that in
the present case the indictment made no reference to s 3 of the Act
under which the appellant should rightly
have been charged. However,
it undoubtedly asserted that the appellant was guilty of the offence
of rape and the summary of substantial
facts set out the details. Is
this deficiency fatal? The short answer, for the reasons that follow,
is no.
[18] Section 86 of the
Criminal Procedure Act 51 of 1977 (the CPA) provides that, where a
charge is defective for the want of any
essential averment therein,
or where there appears to be any variance between any averment in the
charge and the evidence adduced
in relation thereto, or where it
appears that words or particulars that should have been inserted in
the charge have been omitted
therefrom, or where any words or
particulars that ought to have been omitted have been inserted, or
where there is any other error
in the charge, a court may, at any
time before judgment, if it considers that the making of the relevant
amendment will not prejudice
the accused, order the charge, whether
it discloses an offence or not, to be amended insofar as is
necessary.
[19] Section 88 of the
CPA also allows latitude. It provides that a defect in a charge may
be cured by evidence.
2
In C
ommentary
on the
Criminal Procedure Act,
3
the
learned authors, with
reference to
S
v Kuse
1990
(1) SACR 191
(E) at 196g-h, point out that the purpose of
s 88
was to
abolish the former principle that an appellant was entitled to rely
on the fact that a conviction based on a materially
defective charge
was bad even though this point was not taken at the trial. They state
that even when an essential element of the
offence is omitted it may
automatically be cured by evidence. For present purposes it is
clearly not necessary to debate the question
whether an amendment was
in fact just that, or whether it amounted to a substitution of
charges.
[20] It is generally
accepted that charge sheets or indictments may be amended on appeal
or review. Once again the test is whether
the accused could not
possibly be prejudiced thereby. When application is made to amend a
charge on appeal, the court must be satisfied
that the defence would
have remained the same if the charge had originally contained the
necessary averments.
4
[21] The question whether
a charge sheet outlining a charge of rape without reference to the
Act was susceptible to amendment on
appeal was addressed in
S
v Motha
2012
(1) SACR 451
(KZP). The High Court permitted an amendment to the
charge sheet to include a reference to s 3 of the Act on the basis
that there
was no resultant prejudice to the accused. In granting the
amendment the High Court stated that the test was whether the
suggested
amended charge differed from the existing one to such an
extent that it amounted to another charge, and that an additional
consideration
is whether there was a possibility of prejudice to the
accused. It answered both questions in the negative.
[22] I commend the
following part of the reasoning of the court in
Motha,
which applies equally to the present case
:
‘
[13] What
becomes clear from the relevant parts of the Act is the following.
First, it is not the crime of rape which was abolished,
it is the
common law relating to the crime which was repealed. This means that
the crime of rape remains a crime, but has a different
content. This
content, which was previously provided by the common law, is now
provided by s 3 of the Act. The content provided
by s 3 includes that
content previously provided by the common law, namely the penetration
of the genital organ of the complainant
by the genital organ of the
accused. The balance of s 3 includes actions, now construed as rape,
which, under the common law, did
not constitute rape.’
[23] In the present case
the appellant had legal representation and his case was conducted on
the basis that he had been fully aware
that he faced a charge of
rape. He was adamant in his defence that he had not committed the
offence.
[24] It was accepted
before us that allowing an amendment would not result in any
prejudice to the accused and that it was clear
that his defence would
have remained the same. South Africans would rightly be aghast if the
view initially taken by the state,
referred to earlier in this
judgment, was to prevail. It would elevate form above substance,
would have grave consequences for
victims of sexual abuse and would
bring the administration of justice into disrepute.
[25] I now turn to deal
with the conduct of the trial in the court below, having regard to
fundamental irregularities tainting the
trial, some of which were
raised on behalf of the appellant, as well as by the State.
[26] First, the
complainant was 14-years old at the time of the trial. She was a
child witness with whom care should have been taken
at the outset. No
thought was given to whether the child understood the nature and
import of the oath. It was not determined at
the outset whether the
child knew what it meant to speak the truth. No thought was given to
the desirability or otherwise of receiving
the complainant’s
evidence through an intermediary, nor was any consideration given to
any other means to protect the child
witness in a case involving a
sexual offence. As to the manner in which these enquiries are to be
conducted, see the judgment of
the Constitutional Court in
Director
of Public Prosecutions, Transvaal v Minister of Justice and
Constitutional Development, and others
2009
(2) SACR 130
(CC). The purpose is to ensure that the evidence given
is reliable. To admit evidence of a child who does not understand
what it
means to tell the truth undermines the accused’ right
to a fair trial. The court below did not even begin to address any of
these concerns.
[27] Second and equally
serious is the trial judge’s early, unjustifiable entry into
the arena. The complainant’s mother
had testified about how the
appellant had, on a prior occasion, come to enquire about the
purchase of a trailer from her brother,
the complainant’s
uncle. Before the complainant’s mother was cross-examined the
trial judge said the following:
‘
So you only
knew him when he entered your home that day on the
pretext
that
he was coming to try to negotiate for the purchase of a trailer from
your brother, Ishmael?’(My emphasis)
The witness answered in
the affirmative. This unjustifiable attitude, indicating a
predisposition, was compounded by what the court
below stated in
refusing an application for a discharge at the end of the State’s
case in terms of s 174 of the CPA. In reasoning
that the appellant
should be put on his defence the court said the following:
‘
Therefore,
the question is why would a Christian family, like the one who are
the victims here, . . . , want to incriminate you
if it was not
true.’
[28] Third, the trial
judge had failed to intervene when he should have. This was
compounded by defence counsel not raising any
objection. This
occurred during a critical juncture in the trial. Before she was
cross-examined, the complainant testified that
the appellant had
instructed her to lie down and that he positioned himself on top of
her. This was her evidence in respect of
both charges. The high point
of her evidence at that stage was that ‘[h]e was just shaking
on top of me’. When she
was asked to clarify what had occurred,
she said:
‘
He lied on
top of me.’
She repeated this twice
more. The prosecutor then put the following question to her:
‘
[
D]id
he insert his penis into you?’
To this she replied in
the affirmative. There was no objection by appellant’s counsel
and there was no intervention by the
judge. The prosecutor then
asked:
‘
What
happened thereafter?’
And without pause, asked
further:
‘
Did he
ejaculate in you?’
To which she answered:
‘
Then I was
surprised to see things which are like saliva.’
A similar line of
questioning was followed in respect of both counts of rape.
[29] Caution should have
been the watchword. Time and care should have been taken to explore
precisely what had occurred and to
determine what exactly the
complainant was saying the appellant had done to or with her. In this
regard see
S v MM
2012
(2) SACR 18
(SCA) para 9. Far from exploring the complainant’s
version of what had occurred, the prosecutor suggested what had
occurred
by a series of leading questions on elements critical to a
conviction. The court below should have intervened at a very early
stage
during this line of questioning. Regrettably, it failed to do
so.
[30] Fourth, the court
below wrongfully prevented or restricted cross-examination at
critical times. When the complainant was being
cross-examined and the
question arose whether she had agreed to do as the appellant
instructed, the trial judge intervened and
said the following:
‘
Mr Mathobo,
for a 13 year girl, a man coming, telling her he is going to perform
rituals, when he means raping her, why would she
not agree, because
he says, “I am going to perform rituals” of their church.
We know that the ZCC is the oldest African
church in South Africa and
it performs these rituals. So there are some other people then who
sometimes now abuse those rituals.
She only realised what he wanted
to do when he unzipped his trousers. That is what she said. Then she
said, “my mother will
quarrel with me”. He says, “No,
I have already told your mother”. Which means he had already
told her mother
and her mother had agreed because that was a ritual.’
[31] Disturbingly,
immediately thereafter, before the witness ended her testimony and
well before all the remaining evidence was
tendered, the court below
said the following:
‘
So this is
not a case of a person just agreeing because she wants to do it. She
has been duped or misled. She had been defrauded
to believe that all
those things, taking a towel and hat and take your panty, up until
that time when the man now started to have
sex with her, then she
objected, then he said, “No, calm down, I have talked about
this with your mother”.’
[32] When the complainant
was being cross-examined about the presence of her brother in the
vicinity and why she did nothing to
attract his attention, she stated
that she had been afraid. She denied that she had been intimidated.
At that stage the trial judge
intervened and said the following:
‘
You must not
forget, before anything happened, it is said that the accused told,
because the accused came and [her brother] came
after the accused has
arrived. Accused was now busy with his plan. He even told [her
brother], “Go and sit there, I am coming
next with the ritual.”
Do not ignore that.’
Almost immediately
thereafter he said:
‘
He told him
and [her brother] went to wait for the ritual. Who would not like to
get blessings from God?’
Thereafter the trial
judge once again prevented further cross-examination on this aspect.
[33] Leaving aside
questions of whether consent by someone so young is in any event
nullified and still leaves an accused liable
to criminal sanction of
some sort, what is clear is that the appellant was denied the right
to cross-examine fully. An accused
person has the fundamental right
in term of s 35(3)
(i)
of the constitution to
adduce and challenge evidence. More than five decades ago this court
considered whether the disallowance
of proper questions sought to be
put to a witness by cross-examining counsel is an irregularity. It
said the following:
‘
The first
question to be considered was whether there had been an irregularity.
The answer could not be in doubt.’
5
That was said in a civil
matter. It is all the more relevant in a criminal prosecution.
6
More particularly since
the improper prevention of cross-examination militates against an
accused’s fundamental rights. See
S
v Mgudu
2008
(1) SACR 71
(N) at 77g-h. The trial in the court below was mismanaged
from beginning to end.
[34] The irregularities
referred to above, singularly or cumulatively are of such a nature
that they have resulted in justice not
having been done. Put
differently, the appellant did not have a fair trial. In this regard
see the
Criminal
Procedure Act
supra
at 31-28 and 31-29, and the authorities there cited. See also
S
v Moodie
1961
(4) SA 752
(A). The irregularities render the convictions and
sentence liable to be set aside. The consequence is that the
appellant has already
been in prison for more than four years without
a fair trial to finality. Equally, for the child complainant there
has been no
closure. In this instance the administration of justice
appears to have failed them both.
[35] One remaining aspect
requires attention, namely, the manner in which the police
investigation and medical examination was conducted.
It appears at
least on the face of it, from the complainant’s evidence, that
there was material for DNA testing that was
likely to prove
conclusive. There was no indication that a testing kit was used or
available. No explanation was proffered for
the State’s failure
to conduct such an investigation. In
S v
Carolus
[2008] ZASCA 14
;
2008 (2) SACR 207
(SCA) para 32 the
following was stated:
‘
There are
disturbing features of this case that we are constrained to address.
In addition to the flagrant disregard of the rules
relating to the
identification of suspects, no crime kits were available at the
hospital to enable Dr Theron to take a sample for
DNA analysis. It is
imperative in sexual assault cases, especially those involving
children, that DNA tests be conducted. Such
tests cannot be performed
if crime kits are not provided. The failure to provide such kits will
no doubt impact negatively on our
criminal justice system.
Fortunately in this matter such negative outcome has been avoided by
the brave and satisfactory evidence
of A as corroborated by other
witnesses.’
Every effort should be
made by the relevant authorities to ensure proper testing with
appropriate sensitivity.
[36] Because of the
fundamental irregularities mentioned above, the following order is
made:
The appeal is upheld.
The convictions and the
sentences imposed by the High Court are quashed and set aside.
________________________
MS NAVSA
JUDGE OF APPEAL
APPEARANCES:
FOR APPELLANT: M Madima
Instructed by:
Thohoyandou Justice Centre, Thohoyandou
Bloemfontein Justice Centre, Bloemfontein
FOR RESPONDENT: A I S Poodhun
Instructed by
Director of Public Prosecutions, Thohoyandou
Director of Public Prosecutions, Bloemfontein
1
Para
4.
2
Section
88
provides:
‘
Where a charge is defective
for the want of an averment which is an essential ingredient of the
relevant offence, the defect shall,
unless brought to the notice of
the court before judgment, be cured by evidence at the trial proving
the matter which should
have been averred.’
3
E
du Toit, F J de Jager, A Paizes, A St. Quintin Skeen, & S van
der Merwe,
Commentary on the
Criminal Procedure Act
at
14-29.
4
Commentary
on the
Criminal Procedure Act, op
cit, at 14-24 and the authorities
referred to.
5
Distillers
Korporasie (SA) BPK v Kotze
1956 (1) SA 357
(A) at 361G-H.
6
See
Du Toit
et al
(supra) at 22-21 to 22-22.