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[2010] ZAWCHC 205
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Hanekom v S (A304/10) [2010] ZAWCHC 205; 2011 (1) SACR 430 (WCC) (6 October 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE PROVINCIAL DIVISION, CAPE TOWN)
Coram:
Le Grange, J et Saner. AJ
-REPORTABLE-
CASENO:
A304/10
In
the appeal between:
GIDEON
HANEKOM
…..............................................................................
APPELLANT
and
THE
STATE
…....................................................................................
RESPONDENT
Matter
was heard on the 3
rd
of
September 2010. Judgment was handed down on 6 October 2010.
Counsel
for Appellant: Adv E.S. Grobbelaar. Counsel for Respondent: Adv L.
Mcani.
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE PROVINCIAL DIVISION, CAPE TOWN)
-REPORTABLE
-
CASE
NO: A304/10
In
the appeal between:
GIDEON
HANEKOM
…..................................................................................
APPELLANT
and
THE
STATE
…..............................................................................................
RESPONDENT
JUDGMENT:
SANER AJ (06 October 2010)
[1]
This
is a case where, unfortunately it seems, the danger of believing
a
young child where her evidence stands alone, was indeed underrated.
In this regard see:
Woji
v Santam Insurance Co Ltd
1981 (1) SA 10201
(A).
1027
bottom and 1028E-F
[2]
The
Appellant was charged with one count of indecent assault in the
Regional
Division of the Western Cape at Knysna. He tendered a plea of not
guilty on 18 February 2009. He was subsequently convicted
as charged
on 23 July 2009.
[3]
On
22 October 2009. the Appellant was sentenced to three years
imprisonment
and it was ordered, in addition, that his name be entered into the
National Register of Sex Offenders
|4]
The
Appellant now comes before this Court on appeal against his
conviction
and sentence.
[5]
The
first question which arises is whether there are grounds for this
Court
to interfere with the conviction in the Magistrate's Court.
Certainly, it seems clear that this Court may interfere if the
Magistrate misdirected himself in a material respect as far as his
approach to the evidence was concerned. See:
R
v Dhiumayo
1948 (2) SA
667
(A),
706-6
and
State
v Hadebe
1997 (2) SA CR 641
(SCA)
at
645e-f
[6]
I am of the opinion that the Magistrate did indeed misdirect himself
in that he failed to have sufficient regard to the two
cautionary
rules applicable in this case and failed to apply them with that
degree of attention to detail demanded by the particular
circumstances of this case. It seems to me as if the Magistrate did
not pay sufficient heed to the caveat set out in
R
v Manda
1951 (3) SA 158
(A)
at
163, where the following was held:-
"The
imaginativeness and suggestibility of children are only two of a
number of elements that require their evidence to be
scrutinised
with care amounting,
perhaps,
to suspicion The trial court must fully appreciate the dangers
inherent
in the acceptance of such evidence and where there is reason to
suppose that such appreciation was absent a court of
appeal may hold
that the conviction should not be sustained.
[7]
In this matter it seems to me as if the Magistrate, whilst paying
lip service to the applicable cautionary rules, did not
demonstrate
in his judgment the required degree of analysis in his approach to
the inconsistencies and contradictions in the
complainants evidence,
as I will demonstrate below.
[8]
The starting point in any criminal matter must of course always be
that the State must prove the guilt of the accused beyond
reasonable
doubt. This must never be lost sight of even where a number of
cautionary rules come into play. However, to assist
the courts in
determining whether the onus has been discharged, they have
developed a rule of practice that requires the evidence
of a single
witness to be approached with special caution. See:
R
v Mokoena
1956 (3) SA 81
(A)
at
85-86.
An
application of this rule means that a court must be alive to the
danger of relying on the evidence of only one witness, because
it
cannot be checked against other evidence. In this regard see:
S
v Dyira
2010 (1) SACR 78
(ECG)
para
6.
[9]
In the particular case before me a further cautionary rule needs to
be applied since the complainant was a child of five years
old when
the crime was committed and was eight when she gave her evidence.
She was therefore of very tender years. The second
cautionary rule
was therefore that which has to be applied to the evidence of small
children. As to this second rule applicable
in the present matter,
the Court is admonished to be aware of the danger of accepting the
evidence of a little child. This is
because of its potentially
unreliable and untrustworthy nature. It could also be as a result of
lack of judgment, immaturity,
inexperience, imaginativeness,
susceptibility to influence in suggestion, and the beguiling
capacity of a child to convince itself
of the truth of a statement
which may not be true or entirely true, particularly where the
allegation is of sexual misconduct,
which is normally beyond the
experience of small children who cannot be expected to have an
understanding of the physical, social
and moral implications of
sexual activity. See: S
v
Viveiros
[2000] 2 All SA 86
(SCA)
para
2.
[10]
So, to reiterate, in the present case more than one cautionary rule
applies to the complainant as a witness. She is both
a single
witness and a child witness. In such a case the Court must have a
proper regard to the danger of an uncritical acceptance
of the
evidence of both a single witness and a child witness.
[11]
In
Manda
's
case
above (at p. 163) Schreiner JA said the following:-
'Nevertheless
the dangers inherit in reliance upon the uncorroborated evidence of
a young child must not be underrated. The imaginativeness
and
suggestibility of children are only two of a number of elements that
require their evidence to be scrutinised with care amounting,
perhaps, to suspicion. It seems to me that the proper approach to a
consideration of their evidence is to follow the lines adopted
in
the case of accomplices (Rex
v
Ncanana
1948 (4) SA 399
{AD))
and in the case of complaints and charges of sexual assault (Rex
v
W
1949 (3) SA 772
(AD))
the trial court must fully appreciate the dangers inherent in the
acceptance of such evidence and where there is reason
to suppose
that such appreciation was absent a court of appeal may hold that
the conviction should not be sustained. The best
indication that
there was proper appreciation of the risks is naturally to be found
in the reasons furnished by the trial court."
[12]
The first thing to be said about this pronouncement is that it has
been followed in numerous cases from when it was made
up until the
present and I fully intend doing so as well. Having said that, I do
not understand the admonition set out in the
cases referred to above
to apply the cautionary rules in the case of young children and
single witnesses, to mean that the evidence
of such a witness is to
be scrutinised or indeed measured in any way differently from the
evidence from any witness in a criminal
case As I have referred to
above, the test must always be as to whether the State's evidence,
even if it rests on the evidence
of a single witness, is sufficient
to prove the guilt of the accused beyond a reasonable doubt. Even if
the evidence of the State
rests upon a multitude of witnesses their
evidence must still be scrutinised carefully in order to make sure
that it enables
the State to overcome the requisite burden of proof.
To my mind the same applies as far as the evidence of a single young
child
is concerned. All the cautionary rules do is wave a red flag
in front of the Court when such a situation arises, warning that
court to bear a number of particular factors in mind when conducting
its evaluation of that evidence. In the present matter those
factors
consist of the two cautionary rules.
[13]
Indeed, a court should be particularly alert to an application of
the cautionary rules where factors such as evasiveness
on the part
of the witness, the lapse of a significant period of time between
the incident complained of and the trial, the fact
that a witness
had a grudge against the complainant or a motive falsely to
implicate him, and the fact that a child may generally
have had some
difficulty in separating reality from fantasy have to be considered.
See:
S
v V
2000 (1) SACR 453
(SCA).
[14]
Such factors seem to me to be present in the instant case. There was
indeed a lapse of a significant period of time between
the incident
complained of and the trial, namely a period of some three years.
Again, it seems to have emerged from the evidence
tnat the
complainant did not get on well with her father and certainly her
mother, who was close to her, had a grudge against
the Appellant
because of the breakup of their marriage. Most pertinently, it does
not seem as if there was ever any report of
any more than one
incident of indecent assault on the complainant However, in giving
evidence in chief and following a leading
question from the
prosecutor in the
court
a quo.
the
complainant suddenly elevated the number of assaults to two She
thereafter ran into considerable difficulty in explaining
when each
of them had been reported and to whom and in what circumstances.
Such an incident suggests to me not only the fact
that the
complainant in the present case had difficulty separating reality
from fantasy, but also gives an indication as to her
suggestibility.
[15]
So, in evaluating the evidence of a single witness who is also a
child, our courts have laid down certain general guidelines
which
are of assistance when applying the cautionary rules. In such a
case:
A
court will articulate the warning in the judgment, and also the
reasons for the need for caution in general, and with reference
to
the particular circumstances of the case.
A
court will examine the evidence in order to satisfy itself that the
evidence given by the witness is clear and substantially
satisfactory in all material respects.
Although
corroboration is not a prerequisite for a conviction, a court will
sometimes, in appropriate circumstances, seek corroboration
which
implicates the accused before it will convict beyond reasonable
doubt.
Failing
corroboration, a court will look for some feature in the evidence
which gives the implication by a single child witness
enough of a
hallmark of trustworthiness to reduce substantially the risk of a
wrong reliance upon her evidence. See: S
v
Artman
1968 (3) SA 339
(A)
at
340H and
Dyira's
case
above, para 10.
[16]
In short, what was necessary in the present case was a detailed
evaluation, not confined to demeanour, of the extent to which
the
evidence of the child complainant could be regarded as reliable and
acceptable. In my opinion, the Court did not do this.
For example,
the Magistrate found that the so-called "first report"
that the complainant made to her mother was consistent
with the
evidence of the complainant in all material respects and that this
consistency between her evidence and the first report
is a factor
which in law strengthens the credibility of a young complainant. The
reality is that the first report is not consistent
with the evidence
of the complainant in all material respects.
[17]
The complainant testified that on both occasions of the alleged
indecent assault, the Appellant first masturbated himself
and then
went to the bathroom to wash himself and thereafter cleaned the
carpet before he inserted his finger into her private
parts. In her
first report to her mother the complainant, however, reported that
he touched her private parts while he was masturbating
himself. This
point goes even further: in the social worker's report for the
purposes of sentencing, there is a quotation from
what appears to be
a statement made by the complainant to the police. The statement
made by the complainant in this regard seems
to indicate that in
fact the Appellant, according to the complainant, had masturbated
himself after he had inserted his finger
into her vagina. If this
last is the case then there are indeed three different versions
which appear to have been put forward
by the complainant,
[18]
Again, the complainant did not tell her mother that the Appellant
had undressed himself completely when he committed the
alleged
indecent acts, although this was her clear evidence in chief. The
complainant's mother also did not testify that the
complainant had
told her that the incidents occurred on two separate occasions, as I
have already noted.
[19]
Of more concern is that the complainant contradicted herself
materially and repeatedly. In her evidence in chief the complainant
testified that after the second indecent assault, she spent the
night in the caravan on her own bed, but ran to her grandmother
the
next morning and told her that the Appellant had hurt her. She did
not tell her grandmother how the Appellant had hurt her,
but her
grandmother told her to sleep with her after the report. The next
day the complainant's mother came to fetch her at the
school and
they then went back to her grandfather's house where she told her
mother everything. She testified that she had first
only told her
grandmother that the Appellant had hurt her and then told her mother
how the Appellant had hurt her. After her
mother went out, she then
told her grandmother.
[20]
The complainant then told the prosecutor that she only told her
mother what the Appellant did to her when they had returned
to
Midrand in Gauteng. This materially contradicts the above initial
version where she had testified she had told her mother
what the
Appellant did to her in Sedgefiefd (in the Southern Cape) at her
grandfather's house and when her mother left, she told
her
grandmother what the Appellant did to her.
[21]
The complainant then further contradicted herself during
cross-examination. After initially testifying in cross-examination
that it was after the second indecent assault that she told her
grandmother, she then contradicted her evidence-in-chief and
earlier
evidence under cross-examination by testifying that she told her
grandmother about the incident after the first indecent
assault and
her mother after the second indecent assault.
[22]
The complainant then further contradicted her evidence in chief by
testifying that she told her mother about the assault
in Midrand and
that her grandmother was not there. The contradictions go even
further than this: the complainant contradicted
herself in that,
initially she testified under cross-examination that only herself,
the accused, her brother, her grandmother
and her grandmother's
husband lived in Sedgefield when she stayed with them. When she was
asked in re-examination why she did
not tell her grandmother about
the second indecent assault, she replied that it was because she was
scared that her grandmother
would tell her three nieces, who also
stayed there, about the assault.
[23]
Another contradiction arose when the complainant initially stated in
evidence in chief that her mother came to fetch her
from the school
and then she testified in evidence in chief that her stepfather came
to fetch her. When she was cross-examined
she initially testified
that only her stepfather came to fetch her at school. She then
changed her evidence back to say that
her mother and stepfather had
fetched her and ended off her cross-examination in this regard by
testifying that it was only her
stepfather that came to fetch her,
and not her mother. As an explanation for these contradictions she
merely explained
v
ek
vergeet bale goeters".
[24]
It was the complainant's mother's clear testimony that both her
mother and stepfather came to fetch her at the school.
[25]
The complainant changed her story in that initially she testified
that she had on a pair of denim pants when the indecent
act was
perpetrated on her. She later changed this evidence to testify she
had on a pair of pink pants.
[26]
Taking the complainant's testimony further, she initially testified
that her brother was staying with her grandmother when
the incidents
took place and that he was with his grandfather when the incidents
took place. She testified at a later stage that
the incidents
happened on a Tuesday and a Wednesday. Later, during
cross-examination, she changed this version and testified
that her
brother was in the school hostel in George at the time that the
incidents took place. But this was clearly incorrect.
When it was
put to her that the Appellant would testify that her brother only
went to the school hostel in 2009 (well after the
incident in
question), she was so adamant that her brother was at the school
hostel at the time that she said "nee
hy
jok".
Complainant's
mother's evidence was clearly that complainant's brother was not at
boarding school at the time of the incident,
but was at school at
Sedgefied.
[27]
In his judgment the Magistrate assumed that the complainant did not
deviate from the statement that she made to the police
by virtue of
the fact that her attorney did not bring any such deviations to the
attention of the Court. The Court therefore
found that the
complainant's evidence in Court was consistent with her statement to
the police and took this into account as
a corroborating factor and
as one which positively affected her credibility. The Magistrate
erred in such an approach, because
this clearly offends against the
rule against self-corroboration by self-consistent statements. In
this regard see: S
v
Scott-Crossley
2008 (1) SACR 223
(SCA)
para
17.
[28]
I believe the Magistrate also erred in finding that the medical
evidence supported the version of the complainant. Although
the
medical evidence, which was largely unchallenged, established that
there had possibly been forcible penetration by some object
of the
complainant prior to the examination, there was nothing in that
evidence which could link it either in time or in any
other way to
the persona of the Appellant. In this regard I believe that the
Magistrate also misdirected himself
[29]
The evidence of the Appellant was not shaken in any way in
cross-examination. He was consistent throughout his testimony
that
he never had, and never would, do something such as that he had been
accused of to his daughter. To my mind the accused
was honest and
direct as a witness. For example, he openly admitted in chief that
the relationship between him and his ex-wife
was anything but good.
He also fairly conceded that his daughter's evidence was correct
when she said that she and her brother
Renier, when at Sedgefield,
slept either with him in the caravan or with their grandmother, as
they were close to her. When it
was put to the Appellant that his
ex-wife had no reason to make up a false case against him, he told
of a telephone call from
her shortly after she removed the
complainant from him to the effect that she intended to make out a
sexual harassment case against
him so that he would never see his
daughter again. Furthermore, when it was put to him that his ex-wife
would not be too biased
against him as she had subsequently sent him
photos of his daughter he fairly conceded that this was so and added
that he was
very happy that she had done so. Reading the record of
the Appellant's evidence shows that he was not evasive or untruthful
in
anyway In short, there does not appear to be any aspect of his
evidence which is improbable - on the contrary, in my opinion, his
evidence was entirely probable It is noteworthy that the Magistrate
made no adverse credibility or demeanour findings against
the
Appellant and neither do there appear to have been any
inconsistencies or contradictions in his evidence.
[30]
Having regard to the totality of the evidence and with the
cautionary rules in the forefront of one's mind, the conclusion
is
inevitable that the evidence of the complainant does not have that
degree of trustworthiness which would allow the State to
overcome
the burden of proof beyond a reasonable doubt. If I cannot trust the
evidence of the only material witness called on
behalf of the State,
then that raises a doubt in my mind as to whether in fact the
complainant's evidence is reliable. If I have
such a doubt then,
particularly in light of the acceptable evidence given by the
Appellant, the conclusion is inevitable that
the State has not
proved its case beyond a reasonable doubt.
[31]
In the circumstances. I am of the opinion that the appeal against
the conviction should succeed.
[32]
In the result I propose the following order:-
a)
The Appeal succeeds,
b)
The conviction and sentence is set aside.
SANER,
AJ
I
AGREE. IT IS SO ORDERED.
LE
GRANGE, J