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[2013] ZASCA 160
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Maseti v S (353/13) [2013] ZASCA 160; [2014] 1 All SA 420 (SCA); 2014 (2) SACR 23 (SCA) (25 November 2013)
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no:353/13
Reportable
In the matter between:
Buzwe Maxwell Maseti
.......................................................................
Appellant
and
The State
...........................................................................................
Respondent
Neutral citation:
Maseti v S
(353/13)[2013]
ZASCA160(25 November 2013)
Coram:
MAYA, TSHIQI, MAJIEDT, WALLIS and PILLAY
JJA.
Heard
: 12 November 2013
Delivered
: 25 November 2013
Summary:
Criminal law – sexual offences –
improper splitting of charges – attempt to commit a sexual
offence – need
to specify the offence in the charge sheet –
proper approach to evidence – inability of accused to proffer
reason for
allegations against him not, on its own, a proper ground
for rejecting his evidence or convicting him.
ORDER
On
appeal from:
Eastern
Cape High Court, Grahamstown (Sandi J and Griffiths J sitting as
court of appeal from regional magistrates’ court):
The
appeal is upheld and the convictions and sentence are set aside.
JUDGMENT
WALLIS JA (MAYA, TSHIQI, MAJIEDT and PILLAY JJA
concurring)
[1] Mr Maseti was charged before Ms Reddy in the
regional magistrates’ court in Port Elizabeth with two counts
of contravening
the Criminal Law (Sexual Offences and Related
Matters) Amendment Act 32 of 2007 (the Act). The first charge alleged
that on 26
December 2007 he had committed a sexual assault on SM, a
12 year old girl, by ‘putting his tongue in her mouth’.
The
second was a charge of ‘attempt to commit a sexual offence’
committed on the same day by ‘pushing [SM] onto the
bed and
removing her clothes’. He was convicted on both counts and
sentenced to four years’ imprisonment, the two counts
being
treated as one for the purposes of sentence. His appeal to the
Eastern Cape High Court, with the leave of the trial court,
was
dismissed and leave to appeal was refused. This further appeal is
with the leave of this court.
[2] The evidence tendered by the prosecution revealed
that both charges arose out of a single incident that allegedly
occurred at
Mr Maseti’s home on Boxing Day in 2007. SM and her
brother, LM, who reside with their mother in Bisho, had been spending
their Christmas holiday with their older sister and her husband, Mr
Maseti. They had been there since 1 December 2007. SM testified
that
on the evening of 26 December she had left LM and one of her
nieces, BM, playing in the garage, which is detached from
the house
and gone to watch a television programme ‘Generations’ in
one of the bedrooms. She said that while she was
sitting on the bed
Mr Maseti entered the room, closed the door but did not lock it,
approached her and kissed her for a lengthy
period, inserting his
tongue into her mouth in the process. She tried to push him away but
was unable to do so. He then pushed
her onto the bed and removed her
skirt, leggings and underpants. He then removed his own trousers and
underwear. At this point
her sister, Mrs Maseti, who had been in an
adjacent bedroom watching television, called her to come and warm
some meat in the microwave
oven. She accordingly got up, dressed
herself and left the room. Those factual allegations formed the basis
for the two charges.
[3] It is apparent that charging Mr
Maseti with two separate counts, arising out of what was clearly one
and the same incident,
involved an improper duplication (splitting)
of charges. It has been a rule of practice in our criminal courts
since at least 1887
that ‘where the accused has committed only
one offence in substance, it should not be split up and charged
against him in
one and the same trial as several offences’.
1
The test is whether, taking a
commonsense view of matters in the light of fairness to the accused,
a single offence or more than
one has been committed.
2
The
purpose of the rule is to prevent a duplication of convictions on
what is essentially a single offence and, consequently, the
duplication of punishment. Its operation is well illustrated by the
example given in
R v
Kuzwayo
3
of the theft of ten apples from an
orchard on one occasion, where there is only a single offence and the
theft of one apple a day
over ten days, where there are ten offences.
Here, if there was an offence it was patently a single offence
committed with a single
intention. It should not have been split into
two charges.
[4] That raises the question of what should have been
the proper charge. The first count as formulated fell within the
terms of
s 5(1) of the Act as read with para
(a)
(ii)
(bb)
of the definition of ‘sexual violation’
in s 1. It did not, however, cover all the alleged conduct of Mr
Maseti.
That led to the second charge of an attempt to commit a
sexual offence. However, that charge was defective because it did not
specify
which sexual offence Mr Maseti was alleged to have committed.
A sexual offence is defined in s 1 of the Act as meaning:
‘
any offence in terms of Chapters 2, 3 and 4
and sections 55 and 71 (1), (2) and (6) of this Act’.
The charge sheet accordingly referred to all these
provisions as well as some others. In the result it covered an
attempt to commit
incest (s 12); bestiality (s 13);
flashing (sections 9 and 22) and all the other myriad offences
covered by the
Act. Apparently what was intended, but mentioned for
the first time in the penultimate paragraph of the heads of argument
for the
State in this court, was an attempt to commit rape.
[5] The charges appear to have been formulated in this
way because, under s 5(1), a sexual assault is committed when
the accused
sexually violates the complainant. The definition of a
sexual violation is extensive, no doubt in an attempt to cover all
possible
situations that formerly fell within the common law crime of
indecent assault. It includes:
‘
any act which causes—
(a)
direct or indirect contact between the—
(i) genital organs or anus of one person or, in the case of a female,
her breasts, and any part of the body of another person or
an animal,
or any object, including any object resembling or representing the
genital organs or anus of a person or an animal;
(ii) mouth of one person and—
(aa)
the genital organs or anus of another person or, in the
case of a female, her breasts;
(bb)
the mouth of another person;
(cc)
any other part of the body of another person, other than
the genital organs or anus of that person or, in the case of a
female,
her breasts, which could—
(aaa)
be used in an act of sexual penetration;
(bbb)
cause sexual arousal or stimulation; or
(ccc)
be sexually aroused or stimulated thereby; or
(dd)
any object resembling the genital organs or anus of a
person, and in the case of a female, her breasts, or an animal; or
(iii) mouth of the complainant and the genital organs or anus of an
animal;
(b)
the masturbation of one person by another person; or
(c)
the insertion of any object resembling or representing the
genital organs of a person or animal, into or beyond the mouth of
another
person,
but does not include an act of sexual penetration …’
The first count fell within para
(a)
(ii)
bb)
of this definition. As a result of a mechanical approach to the
formulation of the charges it does not appear that the person
responsible for them took account of the need to avoid a duplication
of charges.
[6] The problem with this mechanical approach is that an
attempt to commit rape inevitably involves the perpetrator in the
performance
of one or more of the acts defined as a sexual violation.
Thus a failed attempt at penetration will involve contact between the
genital organs or anus of the victim and some part of the body of the
perpetrator. But that cannot mean that it is proper to charge
the
perpetrator with both attempted rape and sexual assault. There could
be few clearer examples of the same conduct constituting
more than
one offence. Mr Engelbrecht correctly accepted this. In that
situation it is for the prosecution to determine which of
the two
offences should be charged or to charge the two in the alternative.
Where a single alleged occurrence justifies a charge
of attempted
rape, as was the case here, then there should not be separate charges
of the component acts underpinning that charge.
If the evidence is
insufficient to prove attempted rape, but sufficient to prove a
sexual assault, the latter is a competent verdict
in terms of
s 261(1)
(c)
of the
Criminal Procedure Act 51 of 1977
. In
view of the overlap that may exist between different offences under
the Act prosecutors must, when faced with a single incident,
formulate the most appropriate charge bearing in mind the need to
avoid duplication, the competent verdicts on that charge and
the
possibility of adding alternative counts. Furthermore charges must be
formulated with clarity and where reliance is placed
on statutory
provisions the appropriate provisions must be identified.
[7] The conduct alleged against Mr Maseti would have
been encompassed by a single count of attempted rape.The difficulties
I have
highlighted would then have been avoided. As it is, the first
count is inadequate and the second defective, and together they
amount
to an improper duplication of charges.The impact of these
defects on the outcome of the appeal will depend upon the merits of
the
appeal on the facts.
[8] The evidence of SM has been summarised in para 2
above. Some further detail must be added. She said that the family
had participated
in a braai that afternoon that ended around 5.00 pm.
After the braai she had been sitting in the car in the garage
listening to
the radio, while her brother LM and her niece BM were
playing. She said that she left them playing in the garage and went
directly
from the garage to the bedroom to watch ‘Generations’.
She denied that she had been sitting with LM and other members
of the
family, including Mr Maseti, watching television in the TV room. She
said that she cried when Mr Maseti kissed her, but
did not cry out or
call for help. She saidshe did not run away or scream because she was
shocked and scared. When called by her
older sister she simply got up
from the bed, dressed herself, and went out without interference from
Mr Maseti. She said that she
could not remember what he did at this
time.
[9] SM did not report these events to her sister or her
brother that evening. Both asked her why her eyes were red and she
told
them it was nothing. At some time on the following day (27
December) she said that she sent atext message to her mother. Her
evidence
was that she could not recall what was in the message. Its
exact terms were not placed before the court although available.
Instead
her mother was lead as to its contents through the medium of
an interpreter. The court was not even told whether the original text
was in Xhosa or English. That was obviously an unsatisfactory way in
which to obtain this evidence that was of considerable importance.
When asked what the contents of the message were her mother simply
said that SM asked to come home the following day. The prosecutor
then prompted her by asking ‘Yes, did she say why?’ That
attracted the answer, which one would have thought would have
been in
the forefront of the mother’s mind, that Mr Maseti had wanted
to have sex with her. Then followed the blatantly leading
question:
‘[W]hat else was in the text message?’ That attracted a
lengthy reply, which seems inconsistent with the
usually terse nature
of text messages, that SM could no longer cope with staying at the
Maseti home and that her mother should
tell her sister (Mrs Maseti)
that she now wanted to go back, whether she liked it or not. The
prosecutor then started to move on
by saying ‘Now those were
the contents of the SMS, the text message she sent you?’ and
SM’s mother responded:
‘
And then she said to me that she had
already finished to do her washing insomuch that she wants to come
back on the Friday not on
the Saturday, which would be the 28
th
that Friday.’
It is no understatement to say that this alleged final
component of the text message is odd in the context of a message that
this
child had been the subject of a sexual assault by a close family
member.However, none of this was or could be explored and the
evidence was that it prompted SM’s mother to telephone Mrs
Maseti and then on the following day (28December) to come and collect
her, take her to the police to lay a charge and take her home to
Bisho.
[10] SM’s mother’s evidence added little
else to the picture. She testified as to the receipt of the text
message at
about 2.00 pm on 27 December and her anger at what she was
told. She said that when she came to collect SM on 28 December
she asked her what had happened. She was told that SM had been in the
spare room, lying on the bed, watching ‘Generations’
and
that this was at about 8.00 pm. Otherwise her description of what her
daughter told her largely corresponded with SM’s
evidence.There
were two discrepancies. The first was that she said SM told her that
when Mr Maseti came into the room he asked
SM whether she loved him.
This was not mentioned in the child’s evidence. The second was
that she did not say that SM told
her that Mr Maseti had removed his
trousers and underwear. Neither discrepancy was clarified by the
prosecutor or formed the subject
of cross-examination, so it is not
clear whether these were omissions arising in the course of giving
evidence or whether they
reflect SM giving different versions of
events. SM’s mother denied that there was any bad blood between
her and her son-in-law,
but then accepted that after these alleged
events there had been an incident when she had refused to allow her
granddaughter to
be collected by him. This had resulted in her
daughter (SM’s older sister) and Mr Maseti having to obtain a
court order against
her to return the child. However, this appears to
be an unrelated incident occurring at a later stage.
[11] LM also gave evidence. He confirmed that there had
been a braai that day. He said that earlier he and his niece BM had
been
playing in the garage and SM was also there with them. Later, on
the evening in question, he and BM had been sitting in the TV room
watching wrestling on television. This was at about 8.00 pm and Mr
Maseti joined them for a brief period but then left them. SM
had gone
into one of the bedrooms to watch ‘Generations’. When he
finished watching television he went to the bedroom
where his sister
was sitting and saw she had red eyes. He said that he asked her why
her eyes were red and she gave no reply, just
covering herself with a
blanket.The prosecutor asked whether she appeared to be crying, to
which he responded that he could see
she was crying ‘because
her eyes were red’. At some time on the following day Mr Maseti
called him and asked what had
happened in connection with SM. His
response was that he did not know. It was put to him that he had told
Mr Maseti that he did
not see his sister crying. His somewhat
ambivalent reply was ‘No, Your Worship, I did not see’.
It is not clear from
this whether he was confirming the correctness
of what was put to him or telling the magistrate that he had not seen
her doing
so, but there was no attempt to clarify the matter.
[12] Mr Maseti bluntly denied the charges. He confirmed
that the family had a braai that day and said that he had not felt
well.
The children had dinner in the TV room between half past six
and seven and then carried on watching television. He and his wife
did not eat with them, in his case because of his not feeling well.
His wife went to have a shower and a nap, while he watched
wrestling
on television for a whilewith LM, SM and his two daughters. At about
8.00 pm SM went to his daughter’s bedroom
to watch
‘Generations’, which she preferred to wrestling. He was
vomiting and several times had to go to the bathroom
until at about
8.30 pm he went to bed, taking his younger daughter with him, and
leaving LM and BM to continue watching the wrestling.
He said that he
did not go into BM’s bedroom where SM was watching television.
He emphatically denied that he had done any
of the things of which he
was accused and characterised them as absolutely ludicrous.
[13] Mr Maseti said that the first inkling he had of
these charges was during a telephone conversation with his sister the
following
afternoon. He had been working in his study all day when
she phoned and asked what he had done the previous day. Having told
her
that it was nothing to write home about and that he had been
unwell, his sister reported that she had heard that SM’s mother
had said that he tried to sleep with SM. He said he was shocked by
the allegation and flatly denied it, as it was not true. After
thinking about it he called LM and said he had received a disturbing
call from his sister about what had happened the previous
night. His
evidence was that, in response to his query,LM said they had simply
watched wrestling on television and when Mr Maseti
went to bed he had
told LM to switch off the lights. Later when BM had fallen asleep, LM
said he took her to her bedroom where
SM was already sleeping. Mr
Maseti then called SM in and asked her, in the presence of her
brother, what had happened and she just
looked at him, said nothing
and cried. He then phoned his wife and told her about the call from
his sister. His wife came home,
took SM out in her car and spoke to
SM, who then told her that he (Mr Maseti) had tried to have sex with
her.
[14] In those circumstances a consideration of the
merits of the charges came down to an issue of credibility as between
SM and
Mr Maseti. She made serious allegations against her
brother-in-law. His response was that the allegations were a blatant
lie. In
those circumstances one would have expected there to be a
detailed and careful cross-examination of Mr Maseti by the
prosecutor.
That did not occur. It was put to him, which he
confirmed, that SM and LM were regular visitors at their home having
also been
there in June 2007. He was then questioned on whether there
was bad blood between him and his mother-in-law, to which he replied
that there had been differences of opinion, of which he instanced
that she did not approve of his leaving his job. It was then
put to
him that his version did not make sense because there had been no
previous incident of this nature, even though the children
had
previously come to his house.
[15] The broad thrust of the cross-examination was to
ask Mr Maseti why the witnesses for the prosecution would lie. This
started
with SM as appears from the following passages, in which I
have adjusted some of the punctuation to make it more readily
comprehensible:
‘
[B]ut now, why would the complainant now
all of a sudden say: “Buti”, referring to you, wanted to
have sex with me.
I thought at that stage I was going to be raped.”
That is what she said exactly [she] thought at that stage you were
going
to rape her.[Y]ou know why would the complainant do that to
someone who is like you, that she used to come and visit and spend
holiday with? Why would she do that? - - -Ma’am that’s
exactly what puzzles me. When I first heard of this it was a
shock to
me, because I always regarded her not only as a sister-in-law, but as
a sister to me.
Hmmm --- Personally I raised my two other sisters, you know, so for
me this whole thing was a total shock to my system.
Ja, but why should she lie? Why would she lie about you, being that
respected figure to her, you know? --- Your question now will
lead me
to speculate. I would actually speculate and say her mother put her
up to it.’
[16] The prosecutor then pointed out that it was SM who
had made a complaint to her mother. This prompted Mr Maseti to say
that
there was no reason for him to want to have sex with his
sister-in-law as he had a good relationship with his wife and could
not
see why in those circumstances he would want to have sex with a
child. Then he was asked why LM would lie about seeing his sister
crying that night to which Mr Maseti responded that this was contrary
to what LM had said to him the day after the alleged incident.
He
tried to explain that itwas also contrary to a statement that LM had
made that there was nothing wrong with his sister,but the
prosecutor
interrupted him and the magistrate told the prosecutor ‘You can
leave that for argument.’ In the result
Mr Maseti was not
allowed to say what he wanted to say.As there was no evidence on the
alleged statement there was nothing to be
left for argument.
[17] The prosecutor then returned to the basic theme by
suggesting that if SM was making things up she would ‘go for
the bigger
things you know like rape, the real touching and the real
stuff, instead of saying that you only undressed and kissed’.
She
suggested that SM would ‘aim for the killing not for the
lesser things’. Not surprisingly this emotional line of
questioning
prompted the response:
‘
Well if you were to think rationally about
such things there would have to be proof you know, she was red of
which there isn’t.
Really I cannot get into her mind or into
their minds, but having thought about this over and over hitting a
dead end, ma’am
it is difficult to answer that question,
because I can’t comprehend why you know something like this
would happen. I can’t
comprehend why [SM] would actually go
through with something like this. So to even take it a step further
and answer those questions
would be difficult for me.’
[18] That answer resulted in the prosecutor accusing Mr
Maseti of wasting the court’s time and making a lengthy
statement
that he was guilty of the charges because the only time
that there was bad blood between him and SM’s mother was over
this
incident. The statement ended with her saying that his version
‘does not hold water at all’. Needless to say this was
entirely improper and should have been stopped by the magistrate. The
right to cross-examine does not entitle a prosecutor to get
cross, or
to make speeches or to harangue an accused person. Nor does that
become permissible by interposing the words ‘I
put it to you’.
[19] The prosecutor’s approach was wrong.
Regrettablythe error was compounded by the fact that it found favour
with both the
magistrate and the court below. The magistrate
summarised the evidence of the State witnesses and held that they
were all satisfactory.
She had the following to say about Mr Maseti:
‘
The accused testified in a vague and
unconvincing fashion. He was evasive about the bad blood between him
and the second State witness
and finally after much probing by the
Public Prosecutor he said no bad blood was between them. He was
unable to commit himself
to any clear answer as to why the
complainant would falsely implicate him in such a serious matter.
Further no reason was in fact
given either by the complainant or the
defence why the complainant would want to lie against the accused. It
is highly improbable
that the second State witness would involve her
daughter in a process like this simply because she does not like the
accused.’
The magistrate went on to explain that because the
relationship between the families was good it was improbable that SM
would have
upset it by making these allegations against Mr Maseti.For
those reasons she held that the probabilities weighed heavily in
favour
of the State’s case.
[20] The court below adopted the same approach. It too
referred to the fact that the family relationship was good, with SM
and her
brother spending their Christmas holiday with the Masetis. It
regarded it as strange that SM would make such serious allegations
against the appellant and said that it was improbable that she would
destroy the good relationships between the two families by
fabricating evidence against her brother-in-law.
[21] What is absent from the judgment
of the magistrate and that of the court below is a careful evaluation
of the evidence of both
SM and Mr Maseti, weighing both against the
intrinsic probabilities.
4
Take
by way of example the point that there was no apparent reason for SM
to fabricate allegations against Mr Maseti and thereby
sour the
relationship between the two families. It was entirely overlooked
that it was equally improbable that Mr Maseti would
sour that
relationship by sexually assaulting his sister-in-law. When one looks
at this issue from the perspective of both SM and
Mr Maseti and asks
why either of them would damage the family relationship, the answer
can only be a matter of speculation.
[22] That brings me to the issue of
cross-examination that asks the witness to speculate. I have quoted
the passage from the cross-examination
of Mr Maseti in which the
prosecutor demanded to know why SM should lie in her evidence. That
is a question that is frequently
asked in cases such as these. It is
not a proper question because, as Mr Maseti quite correctly pointed
out, it calls upon witnesses
to speculate about matters in respect of
which they can have no knowledge. Later in his evidence in response
to another similar
question he said he could not get into the mind of
SM or her mother. The question requires the witness to express an
opinion about
the subjective state of mind of another person. That is
a matter of speculation or conjecture and as such the answer is
irrelevant
and inadmissible.
5
It
follows that questions directed at eliciting this type of evidence
are impermissible and should be disallowed.
[23] This was not a case where the accused had, in
evidence in chief, expressed a belief that the case against him had
been fabricated
for a particular reason, the validity of which might
have been the proper subject of cross-examination. Instead the
prosecutor
was the onewho asked Mr Maseti to say why SM would make
false allegations against him. The question was asked on the
postulate
that he was being falsely accused. Accepting that
postulate,it was unfair to expect himto speculate on the matter. That
was especially
so in the environment of a court where he was being
pressed for an answer under cross-examination. The natural human
inclination
in that situation is to provide some answer, however
speculative or far-fetched, which may then be used to attack their
credibility.
That is what happened here. Magistrates and judges must
be alert to disallow such cross-examination. An accused person who
claims
that they have been falsely accused is under no obligation to
explain the motives of their accuser and should not be asked to do
so.
[24] Instead of disallowing the cross-examination, the
magistrate elevated Mr Maseti’s perceived inability to provide
a plausible
reason for SM to fabricate these allegations against him
into the major reason for convicting him, as appears from the passage
from her judgment quoted in para 19. She returned to this theme later
in the judgment when she said:
‘The court finds that there is no motive for the complainant to
falsely implicate the accused. The accused's evidence is
not
compatible with the general circumstances of the case, as reflected
and facts which are common cause.'
However, as there had been no prior analysis of the
‘general circumstances of the case’ the latter statement
added nothing
to the magistrate’s reasons.
[25] The approach, that an accused
person is necessarily guilty because the complainant has no apparent
motive to implicate them
falsely and they are unable to suggest one,
is fraught with danger. This was spelled out by Mahomed J in
S
v Ipeleng
6
in
the following terms:
‘It is dangerous to convict an accused person on the basis that
he cannot advance any reasons why the State witnesses would
falsely
implicate him. The accused has no onus to provide any such
explanation. The true reason why a State witness seeks to give
the
testimony he does is often unknown to the accused and sometimes
unknowable. Many factors influence prosecution witnesses in
insidious
ways. They often seek to curry favour with their supervisors, they
sometimes need to placate and impress police officers,
and on other
occasions they nurse secret ambitions and grudges unknown to the
accused. It is for these reasons that the Courts
have repeatedly
warned against the danger of the approach which asks "Why should
the State witnesses have falsely implicated
the accused?".’
7
[26] There will be circumstances in which the absence of
any apparent reason for the prosecution witnesses to fabricate a case
against
the accused is a relevant factor for the court to take into
account in the overall assessment of the evidence. However, on its
own, where no other circumstances are present pointing towards the
guilt of the accused it is not a proper or sufficient basis for
a
conviction.
[27] In this case both the magistrate
and the court below adopted an incorrect approach to the
consideration of the evidence. In
effect they held that the inability
of Mr Maseti to advance a plausible reason for SM fabricating these
allegations, meant that
her evidence had to be accepted and his
rejected. That was incorrect and came close to placing an onus on Mr
Maseti to prove his
innocence. The proper approach was to evaluate
both versions against the inherent probabilities taking account of
all the evidence.
8
If, after undertaking that exercise,
it appeared that his version could reasonably possibly be true, even
if it was improbable or
in some respects untruthful, he was entitled
to be acquitted.
[28] I turn then to consider the evidence and to weigh
it against the inherent probabilities of the situation. All of the
witnesses
gave their evidence clearly and none were particularly
damaged in cross-examination, which was generally inadequate and
ineffective.
The evidence of SM had some support from her mother, to
whom she reported the incident on the following day. I would attach
no
adverse weight to the slight delay in making that report. It is
also so that when her older sister, Mrs Maseti, questioned her on
the
following afternoon, she told the same story about the incident.LM,
who saw her with red eyes, when he was putting their niece
to bed in
the room where SM said that the incident occurred, also lent SM’s
evidence some support, although his evidence
did not support the
magistrate’s finding that SM had been crying.
[29] There are few objective facts against which to
assess the probabilities in relation to SM’s version. It is not
in dispute
that there had been a family braai that afternoon. It is
also not disputed that she had gone into the bedroom to watch the
programme
‘Generations’, while LM and their niece, BM,
were watching wrestling on television in the TV room. This was at
8.00
pm, when ‘Generations’ aired. However, there is some
inconsistency in regard to time and place, which cannot be resolved
on the evidence and might have been significant if resolved. SM said
that the braai finished at 5.00 pm, after which she sat in
the car in
the garage listening to music while LM and BM were playing in the
garage and then went from the garage to the bedroom
to watch
‘Generations’. LM said that the braai finished between
5.00 and 6.00 pm and accepted that he and BM had been
inthe garage
and had then watched television. He denied that SM had spent any time
watching with them before ‘Generations’
started. On the
other hand Mr Maseti’s evidence that the children ate dinner
between 6.00 and 7.00 pm in the TV room and
then watched television
together, until SM went to the bedroom to watch ‘Generations’
was not challenged in cross-examination.
As LM was not questioned on
this and Mrs Maseti was not called as a witness it is impossible to
measure the accuracy of any of
these differing versions against
undisputed facts. What is not in dispute is that for at least some of
the time when LM and BM
were watching wrestling Mr Maseti was
watching it with them.
[30] As regards Mr Maseti’s evidence there are
again few objective facts against which the likelihood of it being
truthful
or untruthful can be measured. He said that there had been
no such incident. If he was telling the truth, what else could he
say?
On his version SM had gone to watch television in the bedroom
and, a short while later, he went to bed, taking his younger daughter
with him, without seeing her again that evening. If that was correct
there was nothing else that he could say to support his version.
What
is telling in his favour was his reaction to the news that SM had
made these allegations against him. He was told about it
by his
sister and he immediately denied it. Then after some reflection he
called in LM to ask him about the matter and, according
to him,
received a response that nothing had happened. He then, with LM
present, asked SM about it and received no response. Not
content to
leave matters there he asked his wife to speak to SM and suggested
that they go for a drive together. This is exactly
what one would
expect an innocent person to do when confronted with allegations of
this type.
[31] There are also some curious features about the
allegations made by SM. She said that she was watching television in
a bedroom.
It transpired from her brother’s evidence that this
was a room she was sharing with her niece, BM, a young child who
could
have wanted to go to bed for the night at any time. In addition
the prosecutor put it to her, and she accepted, that her older sister
was in the adjacent room. Because the prosecutor did not trouble to
place a floor plan of the house before the court we do not
know the
exact relative position of these bedrooms to the TV room, where her
brother was, but there was patently a risk that someone
in the
household could come into the room at any time. Yet on her evidence
Mr Maseti entered and, apart from closing the door,
took no steps to
lock it or ensure that they could not be disturbed, while removing
her clothes and his own,so that anyone coming
in would find the two
of them semi-naked. This occurred, according to her, in a house where
there were at least four other people
– her brother and older
sister and the two children.Yet she said that Mr Maseti kissed her,
removed her clothing and she
feared he would rape her, in
circumstances where a single cry or scream would have brought people
running into the room. By any
standards that was an extraordinary
risk to take. What is more the prosecutor asked her, by way of a
grossly leading and quite
improper question, whether she cried at any
stage to show her disapproval of what was being done to her and she
said she cried.
If that was so, why did no-one hear her? This was not
explained.
[32] There are also some odd features about the contents
of the text message as described by SM’s mother. It seems most
peculiar
that, when SM was finally able to make a complaint to her
mother about Mr Maseti’s alleged conduct, she would explain
that
she had done her washing and therefore could come home a day
earlier than originally planned. The evidence in this regard is
rendered
even more unsatisfactory by the fact that the mobile phone
on which the message was received was not produced so that the court
was not apprised of its exact terms, but instead was given secondary
evidence of its contents. Under cross-examination SM’s
mother
indicated that the mobile phone with the text message could be made
available and she was asked to produce it. However,
this did not
happen, resulting in an important piece of evidence not being before
the court.
[33] Whilst the best evidence rule
seems everywhere to be in retreat
9
that does not mean that a court must
accept as accurate secondary evidence of a document or other form of
writing, such as an text
message. The fact that it has been thought
necessary to make elaborate provision in a statute
10
for the admissibility in evidence of
such messages demonstrates the need for caution in this regard. Here
the original message would
have been admissible provided the court
was satisfied that it had been generated, stored and communicated in
a reliable manner;
that its integrity had been maintained in a
reliable manner and after taking into account any other relevant
factor.
11
Perhaps the oddities about this
message would have been explained had the original been produced as
it should have been. Perhaps
its production would have prompted an
application to recall SM for further cross-examination as to its
contents.We cannot tell.
There can be no excuse for the prosecution’s
failure, in the light of the request by the defence attorney that the
phone
be produced, either to have the original phone, with the
message, available or to provide an agreed transcript of its
contents.
That point was pertinently raised in the closing address by
Mr Maseti’s attorney, but was ignored by the magistrate in her
judgment. In fact she relied on the first and second parts of the
mother’s evidence regarding this message and disregarded
both
the attorney’s submission and the balance of the message.
[34] There are many other respects in
which the prosecution case was inadequately presented. It started
with the deficiencies in
formulating the charges. It extended to
leading three witnesses without any attempt to relate the evidence of
the one to that of
the others. No plan of the house was produced and
nor was the original, or a transcript, of the text message. The
cross-examination
of Mr Maseti was inept, canvassing none of the
material facts and pursuing an approach that assumed his guilt. There
was no explanation
for the failure to call Mrs Maseti, whose evidence
on the events of that day and that evening could have clarified many
issues,
such as the timing of events; whether SM was with the rest of
the family during supper and watching television afterwards; whether
she had herself gone to watch television separately or to have a
shower and a rest; and crucially whether she called SM to warm
up
some meat and asked her about her red eyes.
12
[35] These deficiencies were compounded by the
magistrate. She permitted the prosecutor to ask a number of leading
questions on
critical issues, particularly when leading the evidence
of SM. She upheld an objection by the prosecutor to an entirely
proper
question to SM by the defence attorney about the omission from
her police statement of a reference to Mr Maseti disrobing so that
she could see his private parts. She prevented Mr Maseti from
referring to a statement by LM when explaining why an answer LM had
given in his evidence was incorrect. Then when it came to her
judgment she failed to address any of the submissions made by the
defence attorney. The court below repeated that error and compounded
it by refusing leave to appeal.
[36] In the result I am satisfied that there was no
proper basis for the rejection of Mr Maseti’s evidence and that
it could
reasonably possibly be true. He was accordingly entitled to
his acquittal.That means that it is unnecessary to resolve the
problems
caused by the defects in the charge sheet. The appeal is
upheld and the appellant’s convictions and sentence are set
aside.
M J D WALLIS
JUDGE OF APPEAL
For Appellant: T N Price
Instructed by Nogcantsi Attorneys, Port Elizabeth;
Honey Attorneys, Bloemfontein.
For Respondent: J Engelbrecht
National Director of Public Prosecutions, Grahamstown.
1
Ex
parte Minister of Justice: in re R v Moseme
1936 AD 52
at 59.
2
S
v Grobler en 'n ander
1966 (1) SA 507
(A) at 511H- 12E and 523B
- 524A;
R v Kuzwayo
1960 (1) SA 340
(A) at 342F-344D.
3
Ibid.
4
S
v Singh
1975 (1) SA 227
(N) at 228G-H: ‘The proper
approach in a case such as this is for the court to apply its mind
not only to the merits and
demerits of the State and the defence
witnesses but also to the probabilities of the case.’ Approved
in
S v Guess
1976 (4) SA 715
(A) at 718H.
5
Hodge
M Malek QC (General Editor)
Phipson on Evidence
16 ed (2005)
33.74: ‘Nor are the opinions of witnesses admissible to prove
another person’s intention.’ It follows
that they are
even less admissible to prove another person’s motives for
their acts.
Charles Velkes Mail Order 1973 (Pty) Ltd v
Commissioner for Inland Revenue
1987 (3) SA 345
(A) at 359H-I.
6
S
v Ipeleng
1993 (2) SACR 185
(T) at 189
c
-
d
.
7
S
v Makobe
1991 (2) SACR 456
(W);
S v Lesito
1996 (2) SACR
682
(O);
R v Mtembu
1956 (4) SA 334
(T) at 336A-B.
8
S
v Van der Meyden
1999 (2) SA 79
(W) at 82D-E;
S v Shackell
2001 (4) SA 1
(SCA) para 30.
9
DT
Zeffertt and AP Paizes
The South African Law of Evidence
(formerly Hoffmann and Zeffertt)
2 ed (2009) 381-3;
Phipson
on Evidence
supra 7-37 to 7-45.
10
Electronic
Communications and Transactions Act 25 of 2002
,
ss 11
to
28
.
11
">
11
Section
15(3)
of Act 25 of 2002.
S v Ramgobin & others
1986 (4)
SA 117
(N) illustrates the dangers of relying on modern means of
recording facts if insufficient care is taken to examine them and
their
authenticity. Accepting secondary evidence of their contents
poses a number of similar dangers, not least, of inaccuracy.
12
Such
evidence was not excluded by
s 198
of the
Criminal Procedure
Act 51 of 1977
.