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[2012] ZASCA 59
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Motsisi v S (513/11) [2012] ZASCA 59 (2 April 2012)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no
:
513/11
Not Reportable
In the matter between:
SOUL RAMOKATA DADDY MOTSISI
…............................................................
Appellant
and
THE STATE
….................................................................................................
Respondent
Neutral citation:
Motsisi v The State
(513/11)
[2012]
ZASCA 59
(2 April 2012)
Coram:
NAVSA, TSHIQI AND WALLIS JJA AND PETSE AND NDITA AJJA
Heard: 16 February 2012
Delivered: 2 April 2012
Summary: Rape – complainant allegedly mentally retarded –
competence to testify –
sections 192
,
193
and
194
of the
Criminal Procedure Act 51 of 1977
– admonition -
section 164
read with
s165
of the
Criminal Procedure Act.
ORDER
On appeal from:
North West High Court, Mafikeng (Hendricks and
Kgoele JJ sitting as court of appeal):
The appeal is upheld.
The conviction and sentence imposed by the magistrate are set aside
and substituted with the following:
‘
The appellant’s conviction is quashed
and the sentence is set aside.’
JUDGMENT
TSHIQI JA (
NAVSA and WALLIS JJA
and PETSE and NDITA AJJA
concurring)
The issue that determines the outcome of this appeal is whether the
trial court, having decided not to have the complainant take
the
oath or affirmation in terms of
s162
and s
163
of the
Criminal
Procedure Act 51 of 1977
, properly administered the admonition in
due compliance with
s164
and s
165
of the
Criminal Procedure Act.
>
The appellant was charged with rape, read with
s51(1)
of
Criminal Law Amendment Act 105 of 1997
and with
s94
of the
Criminal Procedure Act, it
being alleged that he had sexual
intercourse with the complainant, a female aged 24 years, who was
mentally retarded. He was
convicted and sentenced to the prescribed
minimum term of 15 years’ imprisonment.
1
His appeal to the North West High Court,
Mafikeng, was dismissed. He now appeals to this court with leave of
that court, against
both the conviction and sentence.
Summary of Facts
The appellant and the complainant were neighbours and knew each
other very well. It is common cause that on 31 May 2005, they
were
found by the second State witness, one T (also a neighbour and a
close family friend) at the complainant’s home. T
had visited
the home to feed the dogs, a chore which, he, according to the
evidence, he seemed to perform regularly. When he
arrived at the
house he was unable to gain entrance because he could not find the
key. He went out of the yard and enquired from
the neighbours if
they had not seen the complainant. He was told that the complainant
had been seen entering her home. He called
her cellphone and she
confirmed that she was inside the house.
According to T, when he entered the yard the second time, both the
appellant and the complainant emerged from the house. The
fact that
they both emerged from the house, which had been locked when he
initially arrived, made him suspicious. He solicited
an explanation
from both of them. It seems that the explanations given did not
satisfy him because after the appellant had left,
he asked the
complainant again what they had been doing inside the house. The
complainant informed him that ‘Daddy had
intercourse with
her’.
He stated that when he confronted the complainant he was angry and
at this stage the complainant started crying. He waited for
her
mother to come back from work and conveyed this information to her.
The complainant’s mother then took steps which
eventually led
to the arrest of the appellant.
It is not necessary to repeat the evidence of the appellant as it is
mostly uncontroverted. He did not deny that he was in the
complainant’s yard but denied that he had engaged in sexual
intercourse with the complainant. He denied that he had been
in the
house and that he had come out when T arrived. He stated that he had
been sitting outside on the ‘stoep’.
Flowing from the allegations in the charge sheet that the
complainant was mentally retarded, the state led the evidence of Dr
Monaledi and that of the complainant’s mother.
Dr Monaledi had not been consulted for an
assessment which would assist the court in making a determination in
terms of
s193
read with
s194
of the
Criminal Procedure Act regarding
the competence of the complainant to give evidence
2
.
She had been afforded limited consultation time with the complainant
and was not able to state whether the complainant suffered
from
mental illness, nor could she state with certainty whether the
complainant would be able to testify and to what extent reliance
could be placed on the complainant’s testimony.
3
She informed the court that even her report,
which had been presented in court, was no longer valid and that it
would be necessary
for her to reassess the complainant.
The complainant’s mother did not state that her daughter had
been positively diagnosed as suffering from a mental illness.
Her
evidence was reliable only to the limited extent that it showed that
the complainant was a slow learner and that at home
she could only
perform rudimentary tasks, like cleaning the house, washing dishes
etc.
The evidence of Dr Monaledi and the complainant’s mother did
not establish whether or not the complainant could testify
nor was
it established whether she could benefit from the services of an
intermediary.
It appears that the magistrate decided that the
complainant would not understand the nature and import of the oath
and instead
of requiring sworn testimony from her decided to
admonish her in terms of
s164(1)
of the
Criminal Procedure Act.
Before
a court may admonish a witness in terms of
s164
read with
s165
of the
Criminal Procedure Act, it
must satisfy itself whether
or not the witness understands what it means to speak the truth. To
that end it must conduct an enquiry.
4
However, in
S v B
2003 (1) SA 552
(SCA) para 15, this court held
that this is not always required. However, once the magistrate
formed that view, there was one
further step that he was required to
take, namely to enquire whether the complainant was capable of
distinguishing truth from
falsehood. In
S
v B
and again in
Director
of Public Prosecutions, KwaZulu-Natal v Mekka
2003
(4) SA 275
(SCA) para 12, that question was left open. It has now
received a clear affirmative answer from the Constitutional Court.
In
DPP v Minister of Justice and
Constitutional Development
2009 (4) SA
222
(CC) para 166, the Constitutional Court stated:
‘
The
reason for evidence to be given under oath or affirmation or for a
person to be admonished to speak the truth is to ensure that
the
evidence given is reliable. Knowledge that a child knows and
understands what it means to tell the truth gives the assurance
that
the evidence can be relied upon. It is in fact a precondition for
admonishing a child to tell the truth that the child can
comprehend
what it means to tell the truth. The evidence of a child who does not
understand what it means to tell the truth is
not reliable. It would
undermine the accused's right to a fair trial were such evidence to
be admitted. To my mind, it does not
amount to a violation of
s 28(2)
to exclude the evidence of such a child. The risk of a conviction
based on unreliable evidence is too great to permit a child who
does
not understand what it means to speak the truth to testify. This
would indeed have serious consequences for the administration
of
justice.’
In para 165 the Constitutional Court clarified that what
s164
of the
Criminal Procedure Act requires
‘is not the knowledge of
abstract concepts of truth and falsehood. What the proviso requires
is that the child will speak
the truth …the child may not
know the intellectual concepts of truth or falsehood, but will
understand what it means to
be required to relate what happened and
nothing else’.
The magistrate’s only endeavour to comply
with this requirement lay in the following questions that he put to
the complainant
before admonishing her to speak the truth.
5
‘
COURT
:
Tell me L, how old are you?
MS K
: I am 17-years old [her
mother had testified that she was born 22 June 1982 which meant that
she was approximately 24 years at
the time].
COURT
: Can you give me the
date on which you were born, do you know it?
MS K
: No Your Worship, I do
not know.
COURT
: Now tell me what do
you do? Do you attend school or do you work, or do you merely stay at
home or what do you do?
MS K:
Your Worship no, I do
[am] not attending school at this moment, but I was attending at
Iteko School.
COURT
: What are you doing
presently?
MS K
: I am staying at home.
COURT:
Yes now L, you are
going to be asked questions relating to something that transpired
some time ago, something that happened to you
which is what we are
going to ask about. Now as you should answer the questions freely
without any fear as nothing is going to
happen to you and that
relates to the accused, between yourself and the accused.
MS K:
Yes Your Worship.
COURT
: Yes now you should try
and tell us all that happened?
MS K:
Yes.
L:
admonished (through
interpreter)
COURT
: Yes the witness has
been admonished. You may proceed Mr Prosecutor.’
The above questions were irrelevant and clearly did not demonstrate
to the court whether the complainant was able to testify
and
importantly, whether she was able to distinguish between truth and
falsehood.
The duty to ensure that a witness has properly
taken the oath, affirmation or admonition is imposed on a presiding
judicial officer.
6
It is the judicial officer who has to be
satisfied that the witness comprehends what it means to speak the
truth. The fact that
a judicial officer may utilise the services of
an interpreter or an intermediary or a registrar of the court to
communicate with
a witness does not relieve the judicial officer of
the duty to perform this function, but what it does is that it
provides the
judicial officer with a means of utilising the
assistance of these functionaries to perform his or her functions.
Their vital
role is limited to ensuring, because of their skill,
‘that questions by the court to the child [witness] are
conveyed in
a manner that the child [witness] can comprehend and
that the answers given by the child [witness] are conveyed in a
manner that
the court will understand’ (
DPP
v Minister of Justice and Constitutional Development
para
167 (supra)). It does not appear
ex
facie
the record that the regional
magistrate performed this function himself as required by the
Criminal Procedure Act. What
appears
ex
facie
the record are the words
‘admonished (through interpreter)’ and nothing more. A
judicial officer cannot simply abdicate
his or her responsibilities
and hope that an interpreter or intermediary will be able to
admonish a witness, as it appears to
have been the case in this
particular matter.
This then brings me to another issue of concern
in this matter. This pertains to the referral to the complainant
throughout the
trial as ‘the victim’. It has long been
established even long before the constitutional era
7
that all witnesses ought to be addressed in a
humane manner in court proceedings. In
S
v Gwebu
1988 (4) SA 155
(W) at 158F H
it was stated:
‘
It is
perhaps as well also to say something about the habit which a n
umber
of magistrates, and some prosecutors in the magistrate's courts, have
developed in recent years, of addressing accused persons
by the
appellation “accused” or “beskuldigde”. And,
one sees, too, in many records that some magistrates
(not in this
case) refer to witnesses as “witness” or “getuie”.
This depersonalising of people is disrespectful
and degrading. It is
no cause for difficulty for people to be called by their proper
names. I can find no reason for the appellant,
in this case, when
addressed directly by the magistrate, not being called “Mr
Gwebu”. Members of the public who appear
in our courts, whether
as accused or as witnesses, are entitled to be treated courteously
and in a manner in keeping with the dignity
of the court.’
It is hoped that judicial officers will always be alive to this and
discourage this practice. Nothing further need be said on this
issue.
A perusal of the record, as it stands, shows that there is no
evidence, apart from that of the complainant from which the
appellant
could have been convicted. Since her evidence has not
properly been placed on record there is no manner of determining
whether
the charge against the appellant was well founded. T’s
evidence alone cannot be elevated to constitute proof that sexual
intercourse had taken place between her and the appellant, nor can
it cure the other inherent problems in the State case.
The medical evidence did not advance the State’s case. The J88
(medical report completed by a medical practitioner) reflected
that
it could not be established whether there was penetration because
the complainant was menstruating at the time of the examination
and
it was therefore difficult to examine her. Although the J88 noted
that there was a small bilateral contusion on the labia
minora which
looked recent, the conclusions contained therein were that the
findings were inconclusive of neither forceful penetration
nor
alleged sexual assault. The medical practitioner was not called to
testify. Any suggestions that the small contusions could
have been
caused when the appellant’s penis allegedly touched her vagina
would be sheer speculation in light of the conclusions
in the J88.
Because of the fundamental irregularities perpetrated by the
magistrate referred to above I make the following order:
The appeal is upheld.
The conviction and sentence imposed by the magistrate is set aside
and substituted with the following:
‘
The appeal succeeds and the appellant’s
conviction is quashed and the sentence is set aside.’
______________________
Z L L Tshiqi
Judge of Appeal
APPEARANCES
APPELLANT: G S Maema
The Office of the D.P.P
Mafikeng
RESPONDENT: Adv. N L Skibi
Legal Aid Board
Mafikeng
1
Part
II
of Schedule 2 prescribes a minimum sentence of 15 years'
imprisonment for first offenders convicted of offences contained in
that schedule.
2
In
terms of
s192
of
Criminal Procedure Act, every
witness is presumed
to be competent and compellable to give evidence in criminal
proceedings, unless expressly excluded. Any
finding that a witness
is incompetent or not compellable to give evidence due to the state
of mind, must be made after a positive
diagnosis in terms of s1 of
the Mental Health Act or as a result of a determination by the court
in terms of s193 read with
s194
of the
Criminal Procedure Act.
3
S
v Katoo
2005 (1) SACR 522
(SCA) para
12.
4
S
v Sikhipha
2006 (2) SACR 439
(SCA) para 13
5
I
have anonymised the complainant’s name in order to avoid the
disclosure of her identity.
6
Section
165
of the
Criminal Procedure Act.
7
Section
10 of the Constitution provides that ‘[e]veryone has inherent
dignity and the right to have their dignity respected and
protected.’