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[2011] ZASCA 52
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A S v S (349/10) [2011] ZASCA 52 (30 March 2011)
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
No precedential significance
Case no: 349/10
In the
matter between
A S
..............................................................................................................................
Appellant
and
THE STATE
...........................................................................................................
Respondent
Neutral citation: A
S v S
(349/10)
[2011] ZASCA 52
(30 March
2011)
Coram:
Lewis and Bosielo JJA and Petse AJA
Heard: 25 February 2011
Delivered: 30 March 2011
Summary: Conviction of indecent assault based on evidence of single,
child witness: evidence reliable and consistent: appeal dismissed.
ORDER
On appeal from: Western Cape High Court (Cape Town) ((Binns-Ward J
and Williams AJ acting as a court of appeal)
The appeal is dismissed.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
LEWIS JA (
PETSE AJA concurring)
[1] I have read the judgment of my colleague Bosielo JA. I agree that
the appeal must be dismissed but approach the matter somewhat
differently.
[2] The appellant, Mr A S, was charged with the indecent assault, on
30 March 2005, of J A who was 16 years old at the time. He
was
convicted by the regional court at Paarl in November 2007, and
sentenced to 12 months’ imprisonment, wholly suspended
on the
usual conditions, and to correctional supervision for a period of 18
months in terms of
s 276(1)(h)
of the
Criminal Procedure Act 51 of
1977
. He appealed against his conviction to the Western Cape High
Court (Binns-Ward J and Williams AJ, both of whom wrote judgments)
which dismissed the appeal. The further appeal is with the leave of
the high court.
[3] The regional court found that A S had fondled and sucked J A’s
penis (thus committing indecent assault) in his office
at a Seven
Eleven convenience store in Cloetesville run by A S. That court, as
well as the high court, dealt with the evidence
of J as to what had
transpired in great detail. It is not necessary to consider it all
again. I shall therefore set out only briefly
the facts on which the
conviction was based.
[4] The basis of the appeal before us is that the regional court, and
the high court (in the first appeal) should not have accepted
the
evidence of J A, who was not only a child, but also the only witness
to the indecent assault (a single witness). In essence,
therefore, as
a second court of appeal, we are asked to re-evaluate the evidence of
both J A and A S, despite full analysis and
assessment by both courts
a quo.
[5] The trial court accepted J A’s evidence that on the day in
question he had gone to A S’s store to assist his father,
who
was employed as a security officer by A S. J A, who testified through
an intermediary, said that he had not wanted to help
his father that
day as he felt ill, and was going to tell him that. On arriving, he
had chatted to a cashier, B, and had then been
beckoned to go into
the office by A S. He was familiar with A S, who had often given him
small items such as ice creams or chips
from the store.
[6] A S asked him to sit down, which he did, and then enquired why J
A was at the store. J A responded that he had come to tell
his father
that he was not feeling well and did not want to help him. A S then
asked what size shoe J A wore, and suggested that
men with big feet
had big penises. J A did not respond. They were interrupted by an
employee who came into the office to discuss
a matter with Strauss.
The door was not shut. When she left J A decided to leave too as he
felt uncomfortable. But A S looked at
him in such a way that he felt
compelled to remain there.
[7] A S then asked if he could feel J A’s penis. J A refused. A
S asked if he was shy. J A said no and that he was not scared
of him
either. A S touched J A’s penis through his tracksuit pants and
then put his hand inside the pants and started massaging
J A’s
penis. J A did not react: ‘ek het net blank geslaan’. He
looked out the window, and also played with his
cell phone. When told
to stand up he did so. A S then sucked J A’s penis. When A S
was finished he asked if J A had enjoyed
what had been done. J A
replied that he had not: A Shad not had the right to do this to him.
[8] A S asked what J A wanted, to which he replied ‘niks’.
A S nonetheless gave him R100, a starter pack for a cell
phone and
R10 to get it started. He told J A to say nothing about the gift of
money or the starter pack to his father and to return
the following
day.
[9] J A left the office and paid B, the cashier, for the starter
pack. He then went to find his father, who was supervising the
unpacking of wine. He said to his father that he wanted to talk to
him, but the latter was ‘moody’ so J A said he would
talk
to him later in the day. He left to go home, crying as he walked.
[10] When he arrived home he realized that he did not have the keys
to the house. He thought he might have dropped them on the
road and
phoned his sister to ask her to look for them. (The keys were later
found in A S’s office.) He encountered his sister
and a friend
on the road and told his sister that he had been raped. She
accompanied him to their grandmother’s house where
he told his
grandmother what had happened. She phoned the police and Mr A.
[11] The sister and P A gave evidence as to their part in what had
happened that day. They largely corroborated what J A had said,
although there were discrepancies in their versions. As the courts
below found none was material. J A was of course not raped,
but, as
he explained to the trial court, he had not heard of the term
‘indecent assault’ before the incident. He did
not know
what had happened to him.
[12] J A was cross-examined at great length. When questioned about
his reaction to A S’s conduct he stated that he had said
‘los
my’ when A S first touched him. This was at variance with his
testimony in chief when he had said that he had
said nothing to A S.
He had been silent because he was shocked. When the contradiction was
put to him, however, he admitted that
he had lied when
cross-examined. He had become weary of answering questions and had
said something to stop the questioning. He
apologized for misleading
the court, but said he had felt nervous and pressured.
[13] A S denied the indecent assault. He admitted that J A had spent
time in his office and that he had given him money and a starter
pack
– but that, he said, was because he often gave children things
and he knew J A’s family were not well-off.
[14] The version of J A, argued A Son appeal, was inconsistent and
inherently improbable. The only inconsistency, however, lies
in J A’s
versions as to his reaction when A S touched his penis. As I have
said, there was a plausible explanation for his
lie in this regard.
The trial court found that, apart from this one inconsistency, he was
a truthful, consistent and reliable witness.
An examination of the
record of the trial bears that out.
[15] As Binns-Ward J said in his judgment in the court below, J A’s
evidence was unaffected by the cross-examination, despite
its length.
And J A’s version was plainly not fabricated – an
inference supported by some of the improbabilities in
his account.
Foremost of these was that the door to the office was not locked (in
fact it was open) and anyone might have entered
while the assault
took place. J A’s surprise at the brazenness of this conduct
was patent. Moreover, it could hardly have
been in the interests of J
A falsely to incriminate his father’s employer, who had
previously shown kindness to him.
[16] A S countered a detailed and angry account by J A of what had
happened with a bland denial of the indecent assault. He relied
on
the improbability of the assault taking place when the office door
was open and any employee could have seen in, or indeed entered.
But
that improbability in my view emphasises the truth of J A’s
account, as the high court found. In any event the evidence
showed
that it was not easy to see into the office and only two employees –
one of whom had come in when J A was in the office
– had
access.
[17] It is true that J A’s evidence had to be assessed with
caution. But the trial court was fully aware of this, and as
I have
said, analysed the evidence of all the witnesses with great care, as
did Williams AJ in her judgment in the high court.
Both courts found
that J A’s evidence was consistent and honest, apart from the
one blemish which he explained satisfactorily.
His conduct after the
assault was also consistent with his complaint that he had been
indecently assaulted. He immediately reported
what had happened to
him to members of his family and he handed the money and starter pack
given to him by A S to the police.
[18] The trial court correctly applied the approach to the evidence
of a single witness enunciated in
S v Sauls
1981 (3) SA 172
(A) at 180E-H where Diemont JA said:
‘
There
is no rule of thumb test or formula to apply when it comes to a
consideration of the credibility of the single witness (see
the
remarks of Rumpff JA in
S
v Webber
1971
(3) SA 754
(A) at 758). The trial Judge will weigh his evidence, will
consider its merits and demerits and, having done so, will decide
whether
it is trustworthy and whether, despite the fact that there
are shortcomings or defects or contradictions in the testimony, he is
satisfied that the truth has been told. The cautionary rule referred
to by De Villiers JP in 1932 may be a guide to a right decision
but
it does not mean
"that
the appeal must succeed if any criticism, however slender, of the
witnesses' evidence were well founded"
(
Per
Schreiner JA in
R
v Nhlapo
(AD 10
November 1952) quoted in
R
v Bellingham
1955 (2)
SA 566
(A) at 569). It has been said more than once that the exercise
of caution must not be allowed to displace the exercise of common
sense.’
[19] In my view, the State proved the acts of indecent assault beyond
reasonable doubt. But in the alternative, A S argued that
even if the
State did prove the indecent assault it had not proved that A S had
acted without J A’s consent. However, he
did not provide any
evidential basis for his alternative defence. While the defence of
consent may be raised if the State proves
the act, and while the
State must prove absence of consent, there must at least be some
evidence on which it is based. In this
matter there was none. See
S
v York
2002 (1) SACR 111
(SCA) para 19 and
S v M
2006 (1)
SACR 135
para 284.
[20] As I have said, the high court gave leave to A S to appeal
against its order to this court on the basis that there was a
reasonable prospect that we would take a different view. I question
the propriety of that approach. Both members of the high court
were
persuaded beyond reasonable doubt that A S was guilty of indecently
assaulting J A. The State case was said to be strong,
and the
evidence of J A in particular was regarded as credible and reliable.
The only criticism by the high court of the trial
court was that it
had been unduly critical of A S’s evidence. And the only basis
for allowing a second appeal was that there
were some inconsistencies
between the evidence of J A, his sister and his father on what had
happened after the assault. These
were of a minor nature. They were
not material to the conviction. There is nothing that this court can
add to the reasoning or
the findings of the high court. In the
circumstances, leave to pursue a second appeal, based solely on the
credibility of witnesses,
should not have been granted.
[21] The appeal is dismissed.
_____________
C H Lewis
Judge of Appeal
BOSIELO JA
[22] The resolution of this appeal involves the vexed issue of the
proper approach to the evidence of a single and child witness.
The
appellant was charged and convicted of indecent assault of the
complainant in the Regional Court, Paarl. He was sentenced to
imprisonment for 12 month wholly suspended on the usual conditions as
well as correctional supervision for 12 months in terms of
s
276(1)(h)
of the
Criminal Procedure Act 51 of 1977
. Aggrieved by his
conviction, the appellant appealed unsuccessfully to the Western Cape
High Court (Binns-Ward J and Williams AJ).
His appeal having failed,
the appellant sought and was granted leave to appeal to this court
against his conviction.
[23] The facts of this case have been admirably captured in the
judgment of the court below. No useful purpose will be served by
rehashing them in great detail. I will confine my judgment to only
those salient facts that elucidate this judgment.
[24] The complainant herein is the son of P A, who worked for the
appellant at his store called 7 Eleven at Cloetesville. On 30
March
2005, the complainant was present at the appellant’s store as
he had gone to assist his father who worked as a security
officer for
the appellant. The complainant testified that, whilst chatting with
B, a cashier at the appellant’s store, the
appellant called him
into his office where they both sat on some chairs. According to the
complainant whilst seated on a chair
in the appellant’s office,
the appellant, rather unexpectedly started to ask him about the size
of his shoes. The appellant
remarked that men with big shoes have big
penises. This made him uncomfortable. This discussion was interrupted
by one P, an employee
who entered the office. As she left the office
the complainant wanted to leave but the appellant gave him a look
which propelled
him to stay.
[25] After P left the office, the appellant asked the complainant if
he could feel how big his penis was. The complainant told
him not to
touch him. The appellant then stood up, went to where the complainant
was seated and felt his penis through his track-suit
trousers. He
then proceeded to put his hand into the complainant’s trousers
and started to massage his penis. The appellant
told him to stand up
and he obliged. Before he knew what was happening, the appellant took
his penis into his mouth and sucked
it. According to the appellant,
he did not resist or object as his mind went blank and instead he
played on his cellular phone
whilst peeping through out the window.
He testified that he did this as he was trying to distract the
appellant. After this the
appellant put his penis back into his
trousers and enquired from him if he enjoyed it. The complainant
responded by asking how
he could enjoy it, as he did not give the
appellant permission to do what he did.
[26] It is not in dispute that after the incident the appellant gave
the complainant R100, a starter-pack and R10 to use as payment
for
the starter-pack. According to the complainant he then left and went
to pay for the starter-pack. He later went to where his
father was
working. However, his father appeared to be so moody that he did not
want to listen. He then left for home. Soon hereafter
he reported
this incident to his sister D A (D A) who was so shocked that she did
not want to listen further. Instead, she recommended
that they go and
report the incident to their grandmother, which they did. Upon being
told what had happened to the complainant,
the grandmother telephoned
the police and the complainant’s father.
[27] D A confirmed that the complainant complained to her that he had
been ‘raped’ by the appellant. She furthermore
confirmed
that she was present when the complainant told to their grandmother
what the appellant did to him. She also confirmed
that her
grandmother telephoned the police and their father soon after the
complainant had told her what had happened.
[28] The complainant’s father, P A (P A) confirmed that on this
day the complainant came to see him at his place of employment.
He
had arranged with the complainant to come and assist him as one of
his employees was absent. He was busy supervising people
who were
packing bottles of wine, when the complainant arrived. When the
complainant tried to tell him that he was sick, he ignored
him and
continued working. He later received a telephone call that the
complainant was sick at home. He then went home. Whilst
en route home
he met the complainant and his mother-in-law inside a police vehicle.
He was then told about the incident. He then
accompanied the
grandmother and the complainant to the police station where this
matter was duly reported.
[29] As against the version stated above, the appellant testified
that whilst he was busy on his computer in his office he saw
the
complainant in the store. He denied that he invited the complainant
into his office. The complainant complained to him that
he was not
feeling well and that his father forced him to come and work.
Furthermore, the complainant complained about his clothes
and the
fact that his father misused his starter-pack. He then gave the
complainant a starter-pack, R10 and R100 to go and buy
himself a
shirt and trousers. The complainant then left the office to go and
pay for the starter-pack which he had given him. He
denied that he
indecently assaulted the complainant as alleged. The appellant
testified that he gave the complainant the starter-pack,
R10 and R100
as he appeared to him to be neglected (‘verwaarloos’).
The appellant stated that in any case it was not
the first time that
he had shown some generosity to the complainant and his family.
[30] The regional magistrate gave a detailed and comprehensive
judgment. It is clear from the judgment that the learned magistrate
was aware of the caution that she had to exercise whilst evaluating
the evidence of the complainant who was both a single and child
witness regarding what had happened inside the appellant’s
office. Furthermore, the regional magistrate acknowledged and
evaluated the discrepancies and inconsistencies apparent in the
complainant’s version. She also took into account the
discrepancies
between the evidence of D and that of the complainant
concerning the report. However, the regional magistrate found that
whatever
inconsistencies or discrepancies existed in the state’s
version, they were not so material as to adversely affect the
witnesses’
credibility and the probative value of their
evidence.
[31] On the other hand the appellant did not make a favourable
impression on the regional magistrate as a witness. The regional
magistrate found that the appellant was evasive and failed to answer
relevant and pertinent questions. In fact the regional magistrate
was
of the view that the appellant was arrogant and felt offended when
certain questions were put to him. Having read the transcript
I can
find no fault with this finding.
[32] In this appeal a spirited attack was launched against the
favourable findings made by the regional magistrate on the
complainant’s
reliability and credibility. It was submitted
that the regional magistrate did not apply the necessary caution to
the complainant’s
evidence which is required in the case of a
single and child witness. I disagree. It is clear from the transcript
that the regional
magistrate was not only aware of the caution to be
applied to the complainant’s evidence but she in fact applied
it. The
same is true of the judgment of the court below. In any
event, it is clear that the regional magistrate duly applied the
salutary
approach enunciated in
S v Sauls & others
1981
(3) SA 172
(A) at 180E-H where it is stated:
‘
There is no rule of thumb test
or formula to apply when it comes to a consideration of the
credibility of the single witness…
The trial Judge will weigh
his evidence, will consider its merits and demerits and, having done
so, will decide whether it is trustworthy
and whether, despite the
fact that there are shortcomings or defects or contradictions in the
testimony, he is satisfied that the
truth has been told. The
cautionary rule referred to by De Villiers JP in 1932 may be a guide
to a right decision but it does not
mean
“
that the appeal must succeed
if any criticism, however slender, of the witnesses’ evidence
were well founded.”…
It has been said more than once
that the exercise of caution must not be allowed to displace the
exercise of common sense.
The question then is not whether there were flaws in
Lennox’s evidence – it would be remarkable if there were
not in
a witness of this kind. The question is what weight, if any,
must be given to the many criticisms that were voiced by counsel in
argument.’
See also
S v Artman & another
1968 (3) SA 339
(A) at
341B-D;
S v Webber
1971 (3) SA 754
(A) at 758G-H.
[33] The appellant’s counsel submitted that the regional
magistrate should have found the complainant not to be reliable
as he
was exposed, during cross-examination, to have lied when he testified
that as the appellant fondled his penis, he told him
to stop or leave
him alone. Counsel for the appellant contended that this lie shows
that the complainant, aware of the inherent
improbability of his
version, tried falsely to explain away the improbability inherent in
his conduct during the alleged indecent
assault. It is noteworthy
that the complainant openly and frankly admitted that he had lied to
the court. He explained that because
the cross-examination was
protracted, repetitive and tedious, he had become exhausted and
answered without thinking or reflecting
on his replies. He did this
as he thought that by providing any answer, he would put a stop to
the lengthy and tedious cross-examination.
To his credit he openly
apologised to the court. Relying on
S v Oosthuizen
1982 (3) SA
571
(T), the regional magistrate found that the mere fact that the
complainant was shown to have lied on one aspect of the case does
not
necessarily justify his entire evidence being rejected as false and
unreliable. Having read all the evidence, I can find no
fault with
this finding.
[34] The appellant’s counsel submitted further that the
complainant’s behaviour during and after the alleged sexual
molestation was so bizarre as to render it inherently improbable. It
was contended that it is improbable that the complainant could
have
remained still and offering no resistance whilst the appellant put
his hand into his pants and massaged his penis and even
proceeding to
suck it. He contended further that the fact that the complainant went
to chat with B (the cashier) soon after this
incident rather than
going directly to report to his father, is incongruous and detracts
from the plausibility of his version.
[35] It is true that the complainant’s evidence is not without
some blemishes. It is also true that on the critical issue
of the
indecent assault, the complainant is a single and a child witness.
Both the regional magistrate and the court below were
aware of this.
They pertinently dealt with whatever discrepancies or inconsistencies
existed in the complainant’s version.
Concerning the admission
by the complainant about his lie, the regional magistrate found that
the explanation given by the complainant
was reasonable under the
circumstances.
[36] It is clear from the transcript that the complainant was exposed
to a protracted, tedious and repetitive cross-examination
which
literally wore him down. At some stage, the complainant appeared to
be so tired that the regional magistrate offered him
a break to
recover. Crucially the court below found that the protracted and
tedious cross-examination left the complainant’s
evidence
unaffected.
[37] I do not find the complainant’s behaviour bizarre or
improbable. The complainant explained that he was shell-shocked.
His
mind went blank. Crucially, one should not ignore the fact that the
complainant was only 16 years old at the time. Such a thing
had never
happened to him. He had no previous sexual experience. Again proper
consideration should be accorded to the relationship
between the
complainant and the appellant. Not only was the appellant older than
him, but he was also his father’s employer.
He trusted him.
Undoubtedly, the appellant was in a position of authority over the
complainant. This incident happened in the appellant’s
store
and in his office. It is not surprising that the complainant froze
with fright when he was unexpectedly exposed to such a
grossly
indecent assault.
[38] Counsel for the appellant submitted that as the complainant and
D contradicted each other on the exact words used by the complainant
when reporting to D and later to their grandmother, their evidence
should have been rejected as untruthful and unreliable. I do
not
agree. It is common cause that the trial in this matter took place
after a very long time. The incident occurred on 30 March
2005. The
trial started 16 months later on 15 August 2006. Furthermore, at the
time when the appellant reported this incident to
his sister D and
later to his grandmother, he was still shocked and confused. Both D
and the grandmother were equally shocked.
It is therefore
understandable why there are some discrepancies on this aspect. In
any event, I am of the view that these discrepancies
are not so
material as to be destructive of their evidence. These are the sort
of discrepancies that one can expect from witnesses
who testify from
memory after a long time. I am of the view that these are the sort of
discrepancies to be expected from ‘honest
but imperfect
recollection, observation and reconstruction’. Instead of
sustaining a finding that the complainant and D deliberately
lied,
the difference in their evidence is, to my mind, indicative of the
fact that they did not rehearse their story so that they
could
present the same version. See
S v Mkohle
1990 (1) SACR 95
(A)
at 98g-h.
[39] What remains undisputed is that the complainant reported, soon
after he left the appellant’s shop, to both D and their
grandmother that he had been ‘raped’ by the appellant. D
confirmed this. The complainant explained that he used the
word
‘rape’ as the concept ‘indecent assault’ was
not known to him at the time. I find this explanation
by a 16 year
old boy to be reasonable. It is also common cause that the matter was
reported to the police immediately. It appears
to me that the
complainant’s behaviour of reporting to D and their grandmother
soon after the incident is consistent with
his version that he was
indecently assaulted by the appellant much against his will. After
all why would he lay a serious and false
charge against the
proverbial good Samaritan who had been kind to him and who, on that
day, generously gave him R100, a starter
pack and R10 to pay for it.
It is noteworthy that the complainant handed the starter-pack and
R100 which he had received from the
appellant to the police on the
same day. To my mind, the complainant’s immediate reporting of
the incident puts paid to any
suggestions that he consented to what
the appellant did to him. Having read the transcript I find myself
unable to disturb the
credibility findings made by the regional
magistrate. See
R v Dhlumayo & another
1948 (2) SA 677
(A).
[40] Although the appellant bore no onus to prove his defence or even
convince the court of the truthfulness of his version, the
version he
proffered is so fanciful and grossly improbable that it cannot be
reasonably possibly true. On the contrary the complainant’s
version is so clear and consistent with absence of consent that the
appellant’s version cannot be reasonably possibly true.
[41] In the result the following order is made:
The appeal is dismissed.
_______________
L O Bosielo
Judge of Appeal
APPEARANCES:
For Appellant: F van Zyl SC
Instructed by
Theron & Partners, Stellenbosch;
Matsepes Incorporated, Bloemfontein;
For Respondent: M Allie
Instructed by
Director Public Prosecutions, Cape Town;
Director Public Prosecutions, Bloemfontein.