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[2013] ZASCA 205
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Mangoma v S (155/13) [2013] ZASCA 205 (2 December 2013)
IN
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
CASE NO: 155/13
Not Reportable
In the matter between:
THINANDAVHA PHENIAS MANGOMA
…………………………………
.
Appellant
and
THE STATE
………………………………………………………………
.
Respondent
Neutral Citation
: Mangoma v S (155/13)
[2013] ZASCA 205
(02
December 2013)
Coram
: NAVSA ADP, MAYA and SALDULKER JJA
Heard
: 26
November 2013
Delivered
:
02 December 2013
Summary
: Rape - Child witnesses -
Assessment of evidence – State
failed to
satisfy the onus.
ORDER
On appeal from
: The Limpopo High Court, Thohoyandou (Hetisani
J sitting as court of first instance).
The following order is made:
The appeal against the conviction and sentence is upheld. The
conviction and sentence are set aside.
JUDGMENT
SALDULKER JA
(NAVSA ADP and MAYA JA CONCURRING):
[1]
This is an appeal against a conviction of rape in the
Limpopo High Court and the related sentence of life imprisonment
imposed on
the appellant, Mr Thinandavha Phenias Mangoma (Mangoma),
for the rape of the complainant, his 13 year old daughter. It is
before
us with the leave of that court.
[2]
One of the bases of the appeal is that the complainant and her
brother who were both minors when they testified at the trial, had
not been properly sworn in or admonished to tell the truth and that
the evidence adduced by them could therefore not be relied
on to
found the conviction. Furthermore, it was submitted that their
evidence was riddled with contradictions and inconsistencies.
The
admissibility of the medical report relied upon by the court below is
also challenged, as is its reliability. The trial court
is also
criticized for having descended into the arena, and it is contended
that the appellant did not have a fair trial.
[3]
In its heads of
argument, the State conceded that the two child witnesses, the
complainant and her brother, had not been sworn in
and were not
admonished to speak the truth, and that therefore their testimony
cannot be relied upon to support the conviction
of the appellant on
the charge of rape. For reasons that will become apparent the
concession was unwarranted, and the State was
constrained to admit
that it was made without proper thought and due to a misreading of
the record.
[4]
At this juncture it is
necessary to set out the background culminating in the present
appeal. The State’s case rested on the
testimony of the
complainant and her brother who were 13 and 12 years old,
respectively, at the time of the incident. It was alleged
that the
complainant was raped by the appellant, her father, when she arrived
home from the playground at 15h00 on the afternoon
of 8 February
2001, and that the rape was witnessed by her younger brother. The
appellant's defence was one of alibi. He testified
that he was not at
home at the time the rape allegedly occurred. He had been looking for
employment in Sibasa, having left home
around 8h00 and returned later
that same evening, and thus could not have committed the act of rape.
He called two witnesses in
his defence, a taxi marshall, his alibi
witness, and his second wife. Because of the conclusion we arrive at
in relation to the
quality of the evidence of the State witnesses.
The alibi evidence need not detain us any further. After the
appellant testified,
the State reopened its case and called Mrs
Mangoma, the mother of the complainant, in rebuttal of the
appellant’s alibi.
I intend to deal with her evidence in due
course.
[5]
I turn to consider the
contention that the two child witnesses were not properly sworn in.
First, it should be noted that it is
clear from the record that the
witnesses
were
sworn in and
that thereafter a very curt enquiry about whether each understood the
meaning of telling the truth followed. Had there
been any doubt
concerning the ability of the child witnesses to understand the
nature and import of the oath the precaution set
out in
s 164
of the
Criminal Procedure Act 51 of 1977
ought to have been followed. The
enquiry in relation to the witnesses’ ability to understand the
importance of telling the
truth appears to have been resorted to
after the oath had been administered. The sequence was wrong. That
notwithstanding, there
is nothing
on the record to indicate
that a doubt about the witnesses’ ability to understand the
truth ought to have been entertained.
In this regard the principles
set out in
S v B
2003 (1) SACR 52
(SCA) at 63d-e apply
[I]
.
The State was constrained to concede that the appeal ought to be
decided on the merits.
[6]
I turn to another aspect which causes me concern in
relation to child witnesses, particularly a complainant. Courtroom
atmosphere
can be intimidating for child witnesses. The use of an
intermediary is a salutary practice to adopt in court proceedings
involving
young children. No thought appears to have been given to
receiving the complainant and her brother’s evidence through an
intermediary. In this regard see Director of Public Prosecutions,
Transvaal v Minister of Justice and Constitutional Development
&
others
2009 (4) SA 222
(CC).
[7]
I now turn to consider the evidence adduced on behalf
of the State. A troubling feature of the complainant’s
testimony is
in relation to the time the rape incident was reported
by her. Her evidence is inconsistent and is not supported by her
brother.
In her examination-in-chief she stated that she reported the
incident to her mother on the day it occurred, which was a Friday.
When she was cross-examined she said that she had told her mother
about it the following day, a Saturday. She did not tell her
mother
immediately because she was afraid that her mother would ‘assault’
her or ‘quarrel’ with her. When
pressed on this aspect,
she stated that it was her brother who had in fact reported the rape
incident to her mother on the following
day in her absence. This
evidence was contradicted by her brother who testified that both he
and the complainant had both reported
the incident to their mother on
the following day. He too, when pressed on this contradiction, stated
that he had in fact reported
the incident to his mother and that
thereafter the complainant had joined him and they had discussed it
together with their mother.
The mother was not called before the
State closed its case to clarify this important aspect of the
complainant’s testimony.
The State had an opportunity to
clarify this aspect when it re-opened its case and called the mother
in rebuttal of the appellant’s
alibi. Her evidence concerning
when the incident was reported was elicited only under
cross-examination. The failure of the state
to lead the evidence of
the mother on the main issue counts against it.
[8]
Initially the mother
said that the complainant had reported the incident to her on 8
February, being the Friday. When pressed on
this aspect she changed
her version and said that the complainant had reported the matter to
her on the 9 February, the Saturday.
She also contradicted both the
complainant and her son as to when they had reported the incident to
her. In this regard, initially
she stated that both had reported the
incident to her, and then later changed this to her son telling her
about the incident and
thereafter the complainant also reporting it.
[9]
It was further put to
the mother under cross-examination by the appellant’s legal
representative that
she had
made a statement to the police that the complainant had reported the
incident on the day it had occurred, being the Friday.
The statement
reads as follows:
‘
On the year 8 February 2001 in
the evening, I was at home busy cooking food. [The complainant] came
to me in the kitchen and told
me that on 8 February 2001 her father
had sexual intercourse with her. I asked her why she didn’t
tell me yesterday and said
that she was afraid because her father was
present, because her father told her that if she ever tells me he
will chase both of
us away from our home.’
Her attempts to explain this statement
were poor and unconvincing.
[10]
Another matter that
raises concerns is the version of the complainant and her brother in
regard to the actual rape incident. It
was the brother’s
evidence that he had no difficulty looking through the window
notwithstanding his height. It is clear from
the later testimony of
the mother that he would not have been able to see through the window
unless he had stood on a mud wall
which neither he nor his sister had
referred to in their evidence. Thus this casts doubt on his version
that he had witnessed the
rape through the window.
[11]
It is common cause that
both the complainant and her brother are young, children, who would
not be aware of the legal requirements
to establish the offence of
rape. During the brother’s testimony he used the word ‘consent’
to describe the rape
that he witnessed:
‘
Now when you say your father
was raping your sister what do you mean by that? It is
because
he was raping her without any consent.’
[12]
The evidence of the
State witnesses must be considered as against the common cause fact
that there was bad blood between the complainant’s
mother and
the appellant due to the fact that he wanted to bring his second wife
into their home. Despite their denial, this is
something that the
children could not have been unaware of.
[13]
It is troubling that the
trial judge made the following statement during the appellant’s
testimony:
‘
Let me tell you the court finds
it very hard to believe the story you are telling it, very hard, that
your own blood children could
tell against you and the one who is not
your blood child is the one you say is more reliable, it is more
stranger than fiction,
particularly the boy who is named after you.’
[14]
In any event, it appears
to us that the appellant is entitled to an order that his conviction
and sentence is set aside because
the state failed to discharge the
onus resting on it. The evidence of the child witnesses was not
carefully scrutinised. The contradictions
and inconsistencies were
not properly considered, nor the possibility that they might have
been put up to it by their mother. In
this fundamental regard the
trial court erred.
[15]
In the result the appeal against both the conviction and sentence is
upheld and the conviction and sentence are set aside.
H K
SALDULKER JUDGE OF APPEAL
APPEARANCES:
FOR APPELLANT: Mr
Alberts
Instructed by:
Legal Aid Justice Centre, Pretoria
FOR RESPONDENT: Mr
Nekhambele
Instructed by
Director of Public
Prosecutions, Thohoyandou
[I]
See
also S v Nedzamba
2013 (2) SACR 333
(SCA) at para 26.