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[2022] ZAFSHC 354
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P.H.K v S (A67/2022) [2022] ZAFSHC 354; 2023 (2) SACR 234 (FB) (13 December 2022)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE PROVINCIAL DIVISION
Case
No.: A67/2022
RC
Case No: 18/18/2019
Reportable:
YES/NO
Of
interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
PH
K
[1]
Appellant
and
THE
STATE
Respondent
Coram:
Opperman,
J
et
Daniso, J
Date
of hearing:
7
November 2022.
Judgment
by:
Opperman,
J
Judgment
delivered on:
13
December 2022
.
The reasons for
judgment were handed down electronically by circulation to the
parties’ legal representatives by email and
release to SAFLII
on 13 December 2022. The date and time for hand-down is deemed to be
13 December 2022 at 15h00.
Summary:
Appeal
– conviction and sentence – evaluation of the evidence of
minors – conduct of the presiding officer
JUDGMENT
[1]
Four things belong to a judge; to hear courteously, answer wisely,
consider soberly
and decide impartially.
[2]
[2]
The impasse of this case is that the evidence against the appellant
on all the charges
convicted of might be strong, but the attack
against the conduct of the presiding officer during the trial is just
as powerful.
[3]
Context, perspective, careful reading of the record and understanding
of the nature
of the proceedings and the evidence, are vital for the
adjudication of the appeal.
[4]
The classic words of Curlewis, JA in
Rex v Hepworth
1928 AD
265
at 277 are just as relevant as the above here:
By
the words "just decision of the case" I understand the
Legislature to mean to do justice as between the prosecution
and the
accused. A criminal trial is not a game where one side is entitled to
claim the benefit of any omission or mistake made
by the other side,
and a judge's position in a criminal trial is not merely that of an
umpire to see that the rules of the game
are observed by both sides.
A judge or an administrator of justice, he is not merely a figure
head, he has not only to direct and control the proceedings according
to recognised rules of procedure but to see that justice is done
.
…
seems to me to give a judge in a criminal trial wide
discretion and power in the conduct of the proceedings, so that an
innocent
person be not convicted or a guilty person get free by
reason
,
inter alia
, of some omission, mistake or
technicality. And it seems to me essentially applicable to the case
before us… (Accentuation
added)
[5]
In
S v Trainor
2003 (1) SACR 35
SCA, Navsa, JA stressed that
whether it be to convict or to acquit the court must account for all
the evidence, some of the evidence
might be found to be false; some
of it might be found to be unreliable; and some of it might be found
to be only possibly false
or unreliable; but none of it may simply be
ignored. A conspectus of all the evidence is required. Evidence that
is reliable should
be weighed alongside such evidence as may be found
to be false. Independently verifiable evidence, if any, should be
weighed to
see if it supports any of the evidence tendered. In
considering whether evidence is reliable, the quality of that
evidence must
of necessity be evaluated, as must corroboratively
evidence, if any. Evidence, of course, must be evaluated against the
onus on
any particular issue or in respect of the case in its
entirety.
[6]
The appeal lies against all the convictions and resultant sentences.
The crimes were
allegedly committed in 2018. The trial began on 24
June 2019. The appellant was convicted on the 2
nd
of
August 2019. Sentencing followed on the 5
th
of August
2019.
[7]
The appeal was invoked on the terms of the provisions of section
309(1)(a)
[3]
of the
Criminal
Procedure Act 51 of 1977
as result of the count of rape of a minor
that resorts under
section 51(1)
of Criminal Law Amendment Act, 1997
(Act No. 105 of 1997). All the charges are not covered by the section
309(1)(a) - automatic
appeal, but the one slots into the other and
this court has an inherent jurisdiction to ensure justice.
[8]
The appellant was charged, convicted and sentenced in the Regional
Court on:
1.
Assault
:
In that during 2018 he unlawfully and intentionally assaulted A-L K,
13 years of age, by giving her alcohol to drink.
Five
years imprisonment
were
imposed in terms of
section 276(1)(b)
of the
Criminal Procedure Act
51 of 1977
.
2.
Assault
:
In that during 2018 he unlawfully and intentionally assaulted AK, 9
to 10 years of age, by giving him alcohol to drink.
Five
years imprisonment
were
imposed in terms of
section 276(1)(b)
of the
Criminal Procedure Act
51 of 1977
.
3.
Rape
of A-L K (13 years
old) in contravention of
section 3
of the
Criminal Law (Sexual
Offences and Related Matters) Amendment Act 32 of 2007
whereby it is
alleged that the appellant penetrated her genitals with his finger.
This also happened in 2018.
Life
imprisonment
was
imposed in terms of section 51(1) of the General Law Amendment Act
105 of 1997.
4.
Sexual
violation of the 13-year-old
A-L K in
contravention of
section 5(1)
of the
Criminal Law (Sexual Offences
and Related Matters) Amendment Act 32 of 2007
by, in 2018, rubbing
her private part (vagina) with his foot.
Five
years
imprisonment
were imposed in terms of
section 276(1)(b)
of the
Criminal Procedure
Act 51 of 1977
.
5.
Compelling
or causing a child to witness a sexual offence or sexual act
in contravention of
section 21(1)
of the
Criminal Law (Sexual Offences and Related
Matters) Amendment Act 32 of 2007
by, in 2018, committing the act of
rubbing his foot on the private part of A-L K in front of K B, 10
years old, and letting her
watch the act.
Five
years imprisonment were imposed in terms of
section 276(1)(b)
of the
Criminal Procedure Act 51 of 1977
.
[9]
The court ordered the sentences on counts 1, 2, 4 and 5 to run
concurrently with the
sentence imposed on count 3.
[10]
The appellant was assisted with legal representation by Legal Aid:
South Africa throughout the
trial. He was released on bail pending
the finalisation of the case. From the record it appears that he is
currently serving his
sentences.
[11]
The presiding officer conducted the trial on the formalities by the
book. The minimum sentence
applicable was explained. Legal Aid was
explained and appointed subsequently. The process of
section 170A
of
the
Criminal Procedure Act 51 of 1977
; engaging the services of
intermediaries and allowing testimony
via
closed circuit
camera was conducted in accordance with due process. The provisions
of
section 120
of the Children’s Act 38 of 2005 (National Child
Protection Register.) were explained and correctly applied. The
appellant
was informed that he was automatically unfit to possess a
firearm in terms of
section 103
of the
Firearms Control Act 60 of
2000
and granted the opportunity to address the court on the issue.
His rights to appeal were explained to him.
[12]
The appeal against the convictions turns on three main grounds
namely:
1.
That
the court
a
quo
erred in: “… not conducting the trial in such a manner
that his open-mindedness, his impartiality and his fairness
are
manifest for all concerned. This, objectively viewed created the
impression that the learned magistrate had decided upon the
guilt of
the Appellant before the end of the trial.”
[4]
2.
Next is that
the court erred in finding the State witnesses’ testimony were
credible.
3.
Lastly, is it
submitted that the magistrate erred in not accepting the version of
the appellant.
[13]
Specifically, the Notice of Appeal reads as follows:
The
following grounds of fact and law are submitted to support the
application, namely:
1.
The court
erred in finding the complainant, AK, to have impressed as a credible
witness. In doing so the court specifically erred:
1.1
By
over-emphasizing the manner in which and demeanour with which she
delivered her testimony.
1.2
By ignoring or
alternatively attaching too little weight to the contradictions in
her testimony when compared to:
1.2.1
Her statement
to the police.
1.2.2
The testimony
of the so-called “first report”.
1.2.3
To her
brother, AK’s, testimony.
1.2.4
To her friend,
KB’s, testimony.
2.
The learned
magistrate did refer to the fact that the complainant and other
witnesses were in essence single witnesses, however,
he failed to
treat their testimonies with the necessary and required caution.
3.
The learned
magistrate erred in not conducting the trial in such a manner that
his open-mindedness, his impartiality, and his fairness
are manifest
for all concerned. This objectively viewed created the impression
that the learned magistrate had decided upon the
guilt of the
Appellant before the end of the trial.
4.
The learned
magistrate erred in not accepting the version of the accused as
reasonably possibly true.
5.
The court
erred in not finding that substantial and compelling circumstances
exist to justify the imposition of a lesser sentence.
6.
The sentence
imposed by the learned magistrate is shockingly inappropriate and
interference is warranted.
[14]
The version of the appellant is one of complete denial of all and
every detailed allegation.
It is his version that his daughter, his
son and their young friends are concocting and dreaming up the
allegations. The motive
for this conspiracy is that he is a strict
father and they want to be removed from his custody.
[15]
This misery goes back much further in history than two children
allegedly inventing false allegations
against their father and not
wanting to be in the care of the father. The system failed the
children. They were removed from the
custody of their biological
mother due to abuse and neglect and placed in a caravan, in a caravan
park, with their alcohol and
drug abusing biological father
(appellant), his girlfriend/wife and their child(ren).
[16]
The income of the father was clearly not enough to support the
children and the placement of
the children with him was a dreadful
decision with atrocious consequences. To start with; there was not
even enough food for the
children in this household on any given day.
The irony is that the appellant is now using these circumstances as a
defence.
[17]
Reading of the record shows the evidence of naïve children that
did not testify perfectly.
The imperfection of their evidence shows
the absence of a conspiracy. The mistakes do not affect the veracity
of the case against
the accused as a whole. There is a real
difference between an unintentional mistake and a deliberate lie. The
detail of the evidence
is too strong to be deceitful.
[18]
The issue of police statements is well known and the court
a
quo
dealt with it appropriately.
[5]
The Law of Evidence in regard to the use of documents is applicable
to both the State and the Accused. The authenticity of the
content of
a document needs to be proven by the party that relies on the
veracity thereof.
[19]
In
S v Govender and Others
2006 (1) SACR 322
(E) Nepgen, J
discussed the issue extensively. He pointed out that it is important
that it should always be borne in mind “.
. . that police
statements are, as a matter of common experience, frequently not
taken with the degree of care, accuracy and completeness
which is
desirable. . .'. (
S v Xaba
1983 (3) SA 717
(A) at 730B -
C.)
Furthermore,
as was pointed out in
S v Bruiners en 'n Ander
1998 (2) SACR
432
(SE) at 437h that the purpose of a police statement is to obtain
details of an offence so that a decision can be made whether or
not
to institute a prosecution, and the statement of a witness is not
intended to be a precursor to that witness' evidence in court.
Quite
apart from that, however, there are other problems associated with
police statements. They are usually written in the language
of the
person who records them. Frequently the use of an interpreter is
required and, invariably, such interpreter is also a policeman
and
not a trained interpreter. The statement, according to my experience,
is also usually a summary of what the policeman was told
by the
witness and is expressed in language or in terms normally used by him
and not necessarily the witness. I am of the view
that the fact that
discrepancies occur between a witness' evidence and the contents of
that witness' police statement is not unusual
nor surprising.
Whenever there are contradictions between the police statement of a
witness and the evidence of such witness, or
where there is no
reference in a police statement to what can be considered to be an
important aspect of that witness' testimony,
the approach to be
adopted in regard thereto is as described in
S v Mafaladiso en
Andere
2003 (1) SACR 583
(SCA) at 593e - 594h.
[20]
In
S v Mafaladiso and others
2003 (1) SACR 583
(SCA) it is
summarised in the headnote that the juridical approach to
contradictions between two witnesses and contradictions between
the
versions of the same witness (such as,
inter alia
, between her
or his
viva voce
evidence and a previous statement) is, in
principle (even if not in degree), identical. Indeed, in neither case
is the aim to prove
which of the versions is correct, but to satisfy
oneself that the witness could err, either because of a defective
recollection
or because of dishonesty. The mere fact that it is
evident that there are self-contradictions must be approached with
caution by
a court. Firstly, it must be carefully determined what the
witnesses actually meant to say on each occasion, in order to
determine
whether there is an actual contradiction and what is the
precise nature thereof. In this regard the adjudicator of fact must
keep
in mind that a previous statement is not taken down by means of
cross-examination, that there may be language and cultural
differences
between the witness and the person taking down the
statement which can stand in the way of what precisely was meant, and
that the
person giving the statement is seldom, if ever, asked by the
police officer to explain their statement in detail. Secondly, it
must be kept in mind that not every error by a witness and not every
contradiction or deviation affects the credibility of a witness.
Non-material deviations are not necessarily relevant. Thirdly, the
contradictory versions must be considered and evaluated on a
holistic
basis. The circumstances under which the versions were made, the
proven reasons for the contradictions, the actual effect
of the
contradictions with regard to the reliability and credibility of the
witness, the question whether the witness was given
a sufficient
opportunity to explain the contradictions - and the quality of the
explanations - and the connection between the contradictions
and the
rest of the witness' evidence, amongst other factors, to be taken
into consideration and weighed up. Lastly, there is the
final task of
the trial Judge, namely to weigh up the previous statement against
the viva voce evidence, to consider all the evidence
and to decide
whether it is reliable or not and to decide whether the truth has
been told, despite any shortcomings. (At 593e -
594h.)
[21]
The court acted with judicial wisdom when adjudicating the testimony
of the children all together.
Again, the detail and simplicity of
their evidence stands out. It is of the nature that cannot be
fabricated.
[22]
The court
a quo
gave due regard to the vulnerability that was
in each child's unique circumstances; such as age, social and
economic background.
The child witnesses and complainants were
exposed to the psychological stress and trauma that resulted from
their participation
or exposure to sexual offences that are private
and intimate and embarrassing.
[23]
The court found objective corroboration in the probabilities of the
case and the evidence of
the unattached and uninvolved friends
namely, A-L and A.
[24]
He was cautious and careful when he measured the evidence of the
witnesses for the State to the
onus of proof beyond reasonable
doubt.
[25]
The probabilities are against the defence of the appellant. His two
children craved his presence
as a father and they were realistic
about their circumstances. They did not run and tattle with the
social workers; the daughter
told a friend that told her mother that
reported the incident. The other friend saw an incident for herself
and was immensely shocked
by the experience. She reported the
incident on her own accord. The young son of the appellant did not
report the incident on of
his own volition.
[26]
The court sitting on appeal will only in exceptional circumstances
interfere with the findings
of the trial court in regard to
viva
voce
evidence bearing in mind the advantage of a trial court having seen,
heard, and appraised the witnesses.
[6]
[27]
A factor that counts against the appellant is the absence of the
evidence of his wife. She was
present at some of the incidences and
was intimately involved in the circumstances that prevailed; she
could have confirmed the
appellant’s version of the attitude of
the children. He did not call her as witness and the only logic
inference that can
be drawn from this is that; in light of the strong
testimony of all the children and the rest of the case, her testimony
was against
him and he realised this. Even without this inference and
oversight; the case is strong.
[28]
The children were removed from the father and placed in a home where
they are happy and content.
This was more than a year before the
trial commenced. They have no reason to maintain their evidence
because it is clear that without
the allegations of assault and
sexual abuse; the father is incapable to care for his children in
general. They will not be returned
to his care even if he was
acquitted. It served no purpose for them and their friends to
perpetuate the alleged lies and conspiracy.
[29]
Reading of the record convinces of the good quality of the witnesses’
evidence for the
State. I will not repeat the evidence. Counsel for
the State summarised it in her Heads of Argument and she is correct.
[30]
Moreover,
South African courts acknowledge the inadequacies of the criminal
justice system in meeting the needs of child witnesses.
In
Klink
v Regional Magistrate,
[7]
the court highlighted the challenges of child witnesses of sexual
offences in legal proceedings and the evaluation of their evidence.
The
Court was convinced that a child witness may often find it traumatic
and stressful to give evidence in the adversarial atmosphere
of the
court-room and that the forceful cross-examination of a young person
by skilled counsel may be more likely to obfuscate
than to reveal the
truth. The unwillingness of young witnesses to subject themselves to
the ordeal of a court hearing even in camera
may have the effect of
thwarting criminal prosecutions. It was obvious that the ordinary
procedures of criminal justice were inadequate
to meet the needs and
requirements of a child witness.
The
interests of the child witness had to be balanced against the
accused’s right to a fair trial. Although the principles
of
fundamental justice required that criminal proceedings should be
scrupulously fair, a modification of the accepted rules of
evidence
and procedure was not necessarily open to objection.
In a criminal
trial it was necessary for the trier of fact to be enabled to get at
the truth while at the same time providing the
accused with the
opportunity to make a full defence. Rules of evidence and procedure
had evolved in an effort to accommodate the
truth-seeking function of
the courts while at the same time ensuring the fairness of the trial.
[31]
In
Teddy Bear for Abused Children and RAPCAN v Minister of Justice
and Constitutional Development
2014 (1) SACR 327
(CC) at
paragraph 1 Khampepe, J stated that children are special members of
our society, therefore, any law that affects them must
take into
consideration their vulnerability and need for guidance. Moreover,
she noted that courts have a duty to ensure that children
receive the
support and assistance essential to ensure a fair trial and in line
with their growth and development.
[32]
The above is without any doubt the method in which presiding officers
should treat children in
court and evaluate their evidence; in a
manner giving regard to their age and development and the
circumstances.
To treat them as the children they are, is not to
show bias but to do justice.
[33]
To conduct a fair trial in difficult circumstances is challenging for
any presiding officer.
Many factors every so often exist that can
cause a judicial mistake to happen. It frequently happens that
counsel for the State
and defence do not deal with all the issues and
the witness had not been granted the opportunity to explain the
existence of a
fact or a probability.
It will be grossly unfair of
the presiding judge or magistrate to deny the accused the opportunity
to answer to probabilities on
which he will base his judgment
subsequently
. Presiding officers are, more that they want, forced
to pose questions to set the record straight and give the accused the
opportunity
to put his version before the court. This is admissible
if it does not denigrate into cross-examination.
[34]
Courts may not permit vague and ambiguous or erroneous questions by
counsel. To regulate a trial
may sometimes be perceived on paper as
interference with the constitutional rights of a party; or
irritation. But, to read something
on paper is not the same as to
hear the tone of the voice of the magistrate or judge.
[35]
Guidance to cause a fair trial by essential reproach is not bias and
irregular. This is the case
in the instance. The content and the
context of the words of the magistrate cannot be said to be
tantamount to prejudice; but for
when he asked the appellant if he
did not make a mistake. I will return to it later.
[36]
These are the parts referred to and relied upon by the appellant to
show his perceived bias and
favouritism perpetrated by the presiding
officer:
[8]
1.
VOLUME 2 – PAGE 146 – LINE 2 – 147 LINE 24
MR
MOKOENA:
Earlier
you testified that he touched your private part?
TOLK
Jy het voorheen gesê dat hy jou
privaatdeel, aan jou privaatdeel gevat het?
MEV.
BOSHOFF:
A[....],
jy het voorheen gesê dat pappa aan jou privaatdeel gevat het?
Is dit so?
A[....]:
Dit is so.
INTERPRETER:
That is correct.
MR
MOKOENA:
Okay,
let us understand that. According to you, am I getting
correctly that by touching, you are referring to a literal touching
of your private part?
TOLK
Verstaan ek mooi as jy sê hy het
aan dit gevat, hy het aan dit gevat?
MRS
BOSHOFF:
Your
Worship, can that question just please be rephrased? I am not
sure how to ask it to the child.
COURT:
Please rephrase, sir.
MR
MOKOENA
: Will I be correct to
understand that he just only touched your private part?
PROSECUTOR:
Your Worship, the state is going to have
to object at this stage because this is not what the witness has been
testifying.
COURT:
Yes, I was waiting for that objection.
PROSECUTOR:
Indeed, so Your Worship, I had just
given my learned colleague some leeway as I was not sure what the
question actually meant earlier,
Your Worship. She clearly
states insertion of the fingers into the private part.
COURT:
Yes, thank you, Mr Mokoena.
MR
MOKOENA:
Thank
you, Your Worship. She clearly stated insertion of the fingers
into the private part.
Ad
1.
The
legal representative of the appellant committed the error in the
question and the court merely ruled on an objection and after
there
was also some confusion from the intermediary on the question. This
cannot be labelled as irritation towards the legal representative.
2.
VOLUME 2 – PAGE 148 LINE 21 – 149 LINE 23
MR
MOKOENA:
Okay.
So, until you woke up and – or you decided to leave and went to
the bathroom also, did I get you correctly?
COURT:
That is not a very nice sentence, please
rephrase.
MR
MOKOENA:
Okay.
COURT:
Think and then you start afresh.
MR
MOKOENA
: Thank you, Your
Worship. Then after that, that is when you felt uncomfortable
and you decided to go to bathroom?
TOLK
Dit is toe jy ongemaklik gevoel het en
toe besluit het dat jy badkamer toe gaan?
MEV.
BOSHOFF
: Is dit so A[....] dat
jy toe ongemaklik begin voel het en besluit het om badkamer toe te
gaan?
A[....]:
Dit is so.
INTERPRETER:
That is correct.
COURT:
Just a moment, Sir. Also, you have
omitted once again a very important step. She moved away first
of all and then she
went to the bathroom.
MR
MOKOENA:
Indeed,
Your Worship.
COURT:
Do you understand, that was her evidence
on this topic.
MR
MOKOENA:
Indeed,
Your Worship. Thank you, Your Worship. So, will I be
correct to also understand your evidence in respect also
to the
second time when this happened, it also happened in the same manner,
for example, the insertion of the finger, it happened
on the same
manner as you described to the Court?
TOLK
Is ek reg as ek sê soos wat jy
verduidelik het dat die tweede keer toe hy sy vinger so ingedruk het,
het dit net so gewees
soos dit die vorige keer gewees het?
MEV.
BOSHOFF:
A[....],
is dit reg om te sê dat die tweede keer wat papa dit gedoen het
met jou, is dit dieselfde gedoen as die eerste keer
dat hy sy vingers
in jou privaatdeel gedruk het?
Ad 2.
The
above is clearly only an effort by the magistrate to make sense of
the question and ensure that the correct version was put
to the
witness. The legal representative agreed with the court and adapted
his language accordingly. It is clear from the record
that English is
neither the first language of the legal representative nor the
magistrate. Irritation or bias cannot be inferred
here.
3.
VOLUME 2 – PAGE 149 LINE
8 – 149 LINE 13
COURT
:
Just a moment, Sir. Also, you have omitted once again a very
important step. She moved away first of all and then
she went
to the bathroom.
MR
MOKOENA:
Indeed,
Your Worship.
COURT:
Do you understand, that was her evidence
on this topic.
Ad
3.
The
court assisted the legal representative to put the correct version to
the witness. This cannot be faulted as bias or irritation.
4.
VOLUME
2 – PAGE 152 LINE 17 –
152 LINE 19
COURT:
Mr Mokoena, identity of this person?
MR
MOKOENA:
Your
Worship?
COURT:
Ask her.
Ad
4.
Here
the court actually assisted the legal representative to place crucial
evidence on record to promote the case for the appellant.
5.
VOLUME 2 – PAGE 154 LINE 13 – 154 LINE 18
MR
MOKOENA:
Your
Worship, I believe that it is only the signature which is – I
believe that it is only the signature which is …[intervenes]
COURT:
Voluntarily, which language was it done?
MR
MOKOENA:
Yes,
indeed, Your Worship.
COURT:
Those type of questions, Sir.
Ad
5.
The
court assisted the legal representative to formulate a basis for
admissibility and veracity of documentary evidence that he
wants to
put on record. The guidance of the court cannot be faulted.
6.
VOLUME 2 – PAGE 157 LINE 11 – 149 LINE 24
MR
MOKOENA:
Thank
you, Your Worship. I believe indeed. Your Worship, the
basis was all laid, unless the state wanted to authenticate?
COURT:
Lady?
PROSECUTOR:
Your Worship. I believe indeed,
Your Worship, the basis was all laid, unless the state wanted to
authenticate?
COURT:
Lady?
PROSECUTOR:
Your Worship, for what it will be worth,
the state will not object and that we may proceed.
COURT:
I think the signature, sir?
MR
MOKOENA:
Pleases
the Court, Your Worship.
COURT:
Is this her signature here? There
is one on the end, but she denied having made?
MR
MOKOENA:
May
I …[intervenes]
COURT:
But from the state there is no
objection.
MR
MOKOENA:
There
is no objection.
COURT:
But do you understand, you have missed
this point?
Ad 6.
Again,
the court assisted the legal representative and did not obstruct him.
7.
VOLUME 2 – PAGE 160 LINE 9 – 161 LINE 23
PROSECUTOR:
Your Worship, if I may perhaps just to
be fair to this witness as well, that the defence provide them with a
copy as well, as it
is most difficult for this intermediary and the
witness to be doing this procedure without having a copy of the
statement with.
The state was not aware of the fact that this
would be tendered and therefore there was not copies made on the
state’s behalf.
COURT:
Fine, sir do you have the additional
copies?
MR
MOKOENA:
Your
Worship, I do not have additional copies, I have marked them.
COURT:
From now on sir, the moment when you
think you are going to make use of a witness statement, you ensure
that there is also a copy
for the other party.
MR
MOKOENA:
Yes,
Your Worship.
COURT:
Do you understand, otherwise it is not
fair.
Ad
7.
The
court guided the legal representative and correctly so to have the
correct number of copies ready when documents are used during
trial.
This cannot be construed as bias or irritation.
8.
VOLUME 2 – PAGE 165 LINE 12 – 166 LINE 13
COURT:
Thank you. Seems to me she is
still able to continue right now, but I just want to say this Sir, I
want to make a remark and
I want to place it on record.
Paragraph 5 is following paragraph 4, therefore there is a certain
sequence.
MR
MOKOENA:
Indeed.
COURT:
Do you understand? Clearly in
paragraph 4 she is referring to the alcohol.
MR
MOKOENA:
The
issue of the alcohol.
COURT:
Situation.
MR
MOKOENA:
Indeed,
Your Worship.
COURT:
Do you understand? See every
question that you have asked, all four questions about paragraph 5
were affirmed by her.
Do you understand, so there is no problem
with paragraph 5, if I may make it? The reason why I am telling
you this Sir, I
really, normally I cannot see, I cannot understand
the need to work through the statement paragraph for paragraph for
paragraph.
Is that correct? Yes. Is that correct?
Yes. I also want o … [inaudible], I am not going to give
you unlimited
time to continue with cross-examination. I have
discussed this mater at length to you in previous matter as well, so
you
must understand we are busy for quite a long period of time in
this instance already. Just keep it in mind. You
understand?
So, if you are going to continue with all the
paragraphs, do not be surprised at the end if there is no time left
for cross-examination,
because this is not cross-examination.
This is just confirmation of what was said. Do you understand
what I am trying
to say?
Ad
8.
The
court explained to the legal representative what the consequences of
lengthy and irrelevant cross examination might be. The
court did not
stop him in his cross examination. He allowed him to proceed as he
wished.
9.
VOLUME 2 – PAGE 166 LINE 15 – 166 LINE 23
COURT:
So just keep in mind you have got the
time constraint as well. On the previous time I have told you,
it is very important,
I am only interested mostly in the version from
your client on each count.
MR
MOKOENA:
Pleases
the Court.
COURT:
Do you understand? Then if there
is time, it is possible to work with …[inaudible] like this,
because paragraph 6 is
clearly to a certain extent, until now it is a
waste of time. Each and every answer was yes. Proceed,
Sir.
Ad
9.
The
court again explained to the legal representative what the
consequences of lengthy and irrelevant cross examination might be.
The court did not stop him in his cross examination. He allowed him
to proceed as he wished.
10.
VOLUME 2 – PAGE 182 LINE 16 – 182 LINE 21
MR
MOKOENA:
When
did you start smoking? Were you here or – when you start
smoking were you still here in – were you still
here in
Bloemfontein or where at Pretoria?
COURT:
No Sir, this is not a reasonable
question to a child.
MR
MOKOENA:
Okay.
COURT:
Rephrase.
Ad
10.
The
legal representative was allowed to rephrase the question for the
witness to understand and she answered the question and the
evidence
the defence wanted to illicit came on record clearly and
unambiguously.
11.
VOLUME 3 – PAGE 236 LINE 1 – 236 LINE 6
MR
MOKOENA:
Earlier
you testified that your mother was the one who was pouring alcohol
for you and your father was aware of such. Do you
still recall
that?
COURT:
The stepmother.
MR
MOKOENA:
Yes,
the stepmother.
COURT:
Just put the statement correct, Sir.
Ad
11.
The
question was clearly wrong; the legal representative was supposed to
refer to the stepmother and not mother. The guidance of
the court
cannot be faulted.
12.
VOLUME 3 – PAGE 246 LINE 17 – 246 LINE 25
MR
MOKOENA:
You
will not know any A[....] will say to the Court that your father did
give you alcohol once and by then yourself – okay,
you will not
know … [intervenes]
COURT:
Yes, please start afresh because I do
not have a vaguest idea what type of question you are going to ask.
MR
MOKOENA:
Thank
you, Your Worship. You will not know why will your sister say
that when your father gave her alcohol yourself you had
already went
asleep?
COURT:
Sir, with all due respect I do not
understand and there is also equally a big question mark on the face
of the interpreter. You
are talking to a child, but if we do not
understand what you are asking how do you think he will understand?
Ad
12.
The
situation cannot be labelled as bias or irritation. The question was
not clear; Mr Mokoena rephrased his question. Mr Mokoena
throughout
the trial struggled to phrase questions. The court must assist him as
well as serve the administration of justice.
13.
VOLUME 3 – PAGE 246 LINE 25 – 247 LINE 19
COURT:
Sir, with all due respect I do not
understand and there is also equally a big question mark on the face
of the interpreter. You
are talking to a child, but if we do not
understand what you are asking how do you think he will understand?
MR
MOKOENA:
I
will rephrase, Your Worship.
COURT:
Make it easy.
MR
MOKOENA
: … [Inaudible –
error on the recording] yourself you had already go to sleep, do you
know about that?
PROSECUTOR:
Your Worship, state is also going to
object to that, because that was never her direct words. She
has also confirmed the fact
that both her and her brother were given
alcohol. Your Worship, this question is not fair to a child of
this age.
COURT:
Thank you, an objection, Sir.
MR
MOKOENA:
Thank
you, Your Worship.
COURT:
Do you want the answer to it?
MR
MOKOENA:
I
also agree … [intervenes]
COURT:
Yes, I am in agreement Sir, I think this
is totally an unfair question and irrelevant. Anything else?
MR
MOKOENA:
May
I withdraw that, Your Worship?
Ad
13.
The
court in the instance ruled on an objection by the State.
14.
VOLUME 4 – PAGE 351 LINE 4 – 357 LINE 7
COURT:
Thank you. Questions from court.
Did you notice your children in court, sir?
MR
K[....]:
Yes,
sir.
COURT:
They are seemingly doing well right now?
MR
K[....]:
It
is a good thing if they are doing better. So, I saw them suffer
and I took, tried to take that away from them.
COURT:
I do understand you answer, but you are
in agreement with me they are doing well right now?
MR
K[....]:
Yes,
sir.
COURT:
It seems to me they are relaxed and they
are … [intervenes]
MR
K[....]:
Come,
comfortable.
COURT:
Receiving foods on a daily basis and
everything is in order?
MR
K[....]:
[no
reply].
COURT:
You are just nodding yes.
MR
K[....]:
Yes,
Your Honour.
COURT:
And how long are they in the children’s
house?
MR
K[....]:
Before
I fetched them or now?
COURT:
Now.
MR
K[....]:
I
think it is about six months. No, it is a year. Since the
case, since the case started yes.
COURT:
So, it might be even 18 months?
MR
K[....]:
In
between there yes.
COURT:
It is a long period of time?
MR
K[....]:
Yes.
COURT:
Now since they are there, there is no
contact with you anymore. You are not there to influence their
life?
COURT:
And they know they are permanently there
in the children’s house. Is that correct?
MR
K[....]:
Yes,
Your Honour.
COURT:
Now if that is the case why would they
still continue with the false charge against you
MR
K[....]:
Sighs.
I would say maybe because they are afraid of me.
COURT:
Why will they be afraid of you? You are
not allowed to be with them. Is that not the case?
MR
K[....]:
Yes,
Your Honour.
COURT:
Why will they be afraid of you?
MR
K[....]:
I
do not know, maybe if I walk in the road or something and they see
me. I have no idea.
COURT:
Are you that dangerous, sir?
MR
K[....]:
No,
sir.
COURT:
You
see I just want to understand your entire version because I cannot
understand the moment when they have testified in court,
they seemed
to me quite happy. … [indistinct] people right now who got a
lot of understanding of the entire situation.
I did not pick up
any bad motive from them you understand, any intention to do you
harm. Did you pick up any intention whilst
they testified?
MR
K[....]:
Just
the fact that they say I did things that I never would have done in
my whole life.
COURT:
Ja
,
apart from that. But did you pick up anything else from them?
Was that a type of hatred against you or anything?
MR
K[....]:
From
A[....] yes, I did.
COURT:
And from your son?
MR
K[....]:
Not
that much.
COURT:
Mm. Do you think it is possible
for her to influence him?
MR
K[....]:
Yes.
COURT:
Why?
MR
K[....]:
They
have never been broke up as brother and sister. They always
stayed together and she always protected her brother no matter
what.
So even in the house if I was a bit angry with A[....]2 then he run
to her and she comforts him. They went to
the same schools.
COURTS:
That is a magnificent personality trait,
sir. It seems to me she was caring for him, even as a
youngster?
MR
K[....]:
That
is the kind of …[intervenes]
COURT:
Do you agree that is a positive?
MR
K[....]:
That
is the kind of believement that I did find.
COURT:
That is a type of thing that a parent
wants to install with his children, to care for one another and she
has done that?
K[....]:
Yes.
COURT:
So, to a certain extent good. Full
points for her on the topic?
MR
K[....]:
Yes.
COURT:
It is not a negative towards her,
are you in agreement?
MR
K[....]:
Yes.
COURT:
And your son what type of personality
does he have?
MR
K[....]:
Quite
aggressive.
COURT:
Is he more aggressive?
MR
K[....]:
Ja
COURT:
Than your daughter?
MR
K[....]:
Yes.
COURT:
Why is he aggressive?
MR
K[....]:
I
cannot answer. I know for the times that I did see them, the
little bit of times that I saw them, that is how he being with
me as
well. Always aggressive.
COURT:
Mm. It seems … [intervenes]
MR
K[....]:
And
fighting.
COURT:
Okay. It seems to me your daughter
was sorry for you as well. She realised it is difficult for you
to have them.
Is that the case?
MR
K[....]:
Yes,
Your Honour.
COURT:
And she tried to assist?
MR
K[....]:
Yes,
Your Honour.
COURT:
Once again the good caring type of
personality?
MR
K[....]:
Yes.
COURT:
Are you in line?
MR
K[....]:
No.
COURT:
Not?
MR
K[....]:
[No
reply].
COURT:
The moment when she is caring about you,
she is asking you this question?
MR
K[....]:
Ja.
No, she was …[intervenes]
COURT:
She understand the suffering?
MR
K[....]:
She
did understand the situation.
COURT:
Because that is my feeling about her you
understand. It is part of my job to evaluate people and I have
got the impression
that she is a caring type of a soft person?
MR
K[....]:
[No
reply]
COURT:
Are you in agreement?
MR
K[....]:
Yes.
COURT:
Not a bad person?
MR
K[....]:
I
did find her a few times bad, but not this bad.
COURT:
Let us leave alone the accusation
against you, that is a separate thing. Let us park it there.
Apart from that, was
she a mean type of person?
MR
K[....]:
No,
she was always friendly. Sometimes a lot sad, but never
aggressive.
COURT:
Actually, a very nice child?
MR
K[....]:
Yes,
Your Honour.
COURT:
But for one thing? If it was not for the
charges against you, it is possible for you to give her a very good
write down?
MR
K[....]:
To
be a good, sorry?
COURT:
Write down type of a report on her?
MR
K[....]:
Yes.
COURT:
Ja.
So, this was totally out of line the entire charge. Are you in
agreement?
MR
K[....]:
Yes,
Your Honour.
COURT:
Because that is interesting to me you
understand. Personality wise is she more like you or more like
your ex-wife, or not
like anyone?
MR
K[....]:
Not
like any of us.
COURT:
She is more, is she cool headed?
MR
K[....]:
Yes, quite.
COURT:
And you are not cool headed?
MR
K[....]:
Quite
clever also.
COURT:
Clever as well
ja
.
Why are you uncertain right now, sir? I am not asking a
question and you are looking at different places. You
are …
[intervenes]
MR
K[....]:
I
am sad.
COURT:
In a jittery fashion.
MR
K[....]:
I
am sad, sir. I am sad, Your Honour.
COURT:
Have you not just made a big mistake?
MR
K[....]:
No,
Your Worship I did not make any mistakes. I did treat my children a
bit bad, but I wished for my children to stay with me for
the last
seven years. So, I, when I had a chance to do that, I did not know I
could really afford it. But I did take a chance to
try because I …
[intervene]
COURT:
You tried your best?
MR
K[....]:
I
did my best to have my children with me.
COURT:
Thank you, any questions from your side
Mr Mokoena?
MR
MOKOENA:
I
have no question, Your Worship.
Ad
14.
The
above may be labelled as cross examination and too much interference
by the court but it did not affect the appellant or cause
him any
distress. He answered with self-confidence and even at times
disagreed with the presiding officer. He was not intimidated
and
stood his ground. The probabilities that the presiding officer wanted
to use in the evaluation of the evidence were put to
him to give his
opinion and he did so. The person that knew his children the best is
the appellant and the court elicited his version.
The above did not
affect the fairness of the trial to the extent that the trial can be
ruled to be substantially unfair.
[37]
If the test is applied as was depicted by counsel for the appellant
and based on
S v Le Grange
[2008] ZASCA 102
;
2009 (1) SACR 125
SCA; the conduct
of the presiding officer
in casu
did not transgress to the
extent of unfairness. The law require not only that a judicial
officer must conduct a trial open-mindedly,
impartially and freely;
but that such conduct must be apparent, especially to the accused.
The Supreme Court of Appeal
supra
ruled that:
1.
The requirement of impartiality was
closely linked to the right of an accused person to a fair trial.
Such fairness would clearly
be under threat if a court failed to
apply the law and assess the facts impartially and without fear,
favour or prejudice.
2.
Presiding over criminal trials was a
difficult task and cross-examination could sometimes appear
protracted and irrelevant. However,
impatience was something that a
judicial officer must wherever possible avoid and always strictly
control. It could impede his
perception, blunt his judgment and
create an impression of enmity or prejudice in the person against
whom it was directed.
3.
A judicial officer could perform his
demanding and socially important duty properly only if he stood guard
over himself, mindful
of his own weaknesses and personal views, and
controlled them. (Paragraphs [14] and [18] at 140e-g and 149e-g.)
4.
Many of the presiding judge's questions
to the appellants had been legitimately put for elucidation or
supplementation, but the
record was also replete with questions that
were intended to discredit the appellants, compounded in many
instances by disbelief
and scepticism. Far from merely clarifying
matters, the questioning sought to pick holes in the appellants'
version, and must have
seemed to them to have been designed to
produce answers favourable to the State.
5.
This questioning strongly indicated that
the judge had made up his mind at an
early
stage
that the State witnesses were
telling the truth and the appellants lying. (Accentuation added)
6.
While judicial officers could, and did,
form provisional views on the credibility of witnesses, it remained
their fundamental duty
not to close their minds to the possibility of
changing such views until the last word had been spoken. Certain
comments made by
the presiding judge could mean only that he had
decided, long before the cross-examination of the State witnesses,
let alone before
hearing the evidence of the appellants, that the
State's case was the truth.
7.
He had not approached the appellants'
case objectively and impartially, and the language used suggested
that he had certain preconceived
biases, which he had allowed to
affect his judgment. (Paragraphs [20] and [23] at 150c-f and
152f-153b.)
8.
Further, that some of the irregularities
complained of would, in themselves, not have constituted sufficient
indication that the
appellants had not enjoyed a fair trial. Taken
cumulatively, however, they compelled the conclusion that the
presiding judge had
not been fair and impartial during the trial.
9.
Under the circumstances the proceedings
were invalid and the convictions and sentences could not stand.
10.
The irregularity was such as to have
vitiated the trial entirely; the possibility of double jeopardy did
not arise, and the institution
of a new trial would not infringe s
35(3)(m) of the Constitution of the Republic of South Africa, 1996.
There was a pressing societal
demand for, and public interest in, the
case, which involved a most serious charge; accordingly, there would
be a miscarriage of
justice should proper trial not ensue.
(Paragraphs [29] and [31] at 155c-d and 156c-e.)
11.
Convictions and sentences set aside.
Matter remitted to the High Court for retrial before a different
judge.
[38]
The interference and conduct were severe and grossly irregular in the
case above. The magistrate
here,
in casu
, treated the
appellant with courtesy and endeavoured to understand his version and
circumstances. It is not irregular for a presiding
officer to have
made up his mind at the end of the testimony of the accused.
[39]
The magistrate displayed empathy to all the parties if the whole of
the record is regarded. He
might be inclined to voice his own
personal views and experiences and should cease this habit. It is
tantamount to evidence from
the bench.
[40]
The only question that raises discomfort was when it was asked if the
appellant made a mistake.
The appellant was not intimidated and stood
his ground. The presiding officer must be admonished to also stop
asking questions
of this nature and realise the consequence of such.
If the appellant confessed the crimes on this question, it could have
led to
a gross irregularity. It is not the place of the presiding
officer to illicit confessions. The position of authority of a
magistrate
might have, unlawfully so, intimidated the appellant into
pleading guilty by confession. It, fortunately, did not.
[41]
The record in its entirety shows that the appellant is guilty as
charged and the trial was fair.
[42]
The issue of sentence now come to the fore. The appellant maintains
that life imprisonment for
the rape of his own 13-year-old daughter
is shockingly inappropriate. The victims in the instance were removed
from their biological
mother due to abuse and neglect. They were
placed in the care of their father whom they believed will be their
saviour. Even though
they lived in poverty and dire circumstances the
daughter testified that she did not mind and understood. She was not
angry; just
sad.
[43]
Notwithstanding that the appellant penetrated his young daughter’s
vagina with his finger,
he also during another incident, rubbed her
vagina with his foot in front of her friend. He gave her alcohol and
must have realised
that this will inhibit her lucidity. The conduct
was not on the spur of the moment but as if out of some perverted
perceived sense
of normality and right to do so. The humiliation in
front of her friend must have been severe. The trauma for the young
10-year-old
friend that was witness to an incident speaks volumes.
[44]
Counsel for the appellant took issue with the manner in which the
magistrate referred to the
statistics on rape in South Africa. He is
indeed correct; the defence must be given the opportunity to
investigate the veracity
of the statistics before a court can regard
it. The irregularity is not fatal.
[45]
The statistics that happened in the court itself is judicial notice
and it cannot be criticized.
The manner in which sentences were dealt
with in the court
a quo
and the increase thereof that evolved
over the years, cannot be faulted. It is the mirror image with which
the legislator and the
people of the country regard and fear the
crimes of abuse and rape of children. The promulgation of prescribed
minimum sentences
underscores this.
[46]
The appellant argued that the lack of physical injuries counts in the
favour of the father. The
mental scars and secondary trauma that the
children experience do however negate any physical scar. In
S v
Matyityi
2011 (1) SACR 40
SCA at 45(j) to 46(b) the Supreme Court
of Appeal noted correctly that:
To
the extent that he may have been referring to permanent physical
injuries, one can hardly quarrel with that conclusion. But,
with
respect, to restrict the enquiry to permanent physical injuries, as
the learned judge appears to have done, is to fundamentally
misconstrue the act of rape itself and its profound psychological,
emotional and symbolic significance for the victim. As it was
put by
this court in
S v De Beer
: 'Rape is a topic that abounds
with myths and misconceptions. It is a serious social problem about
which, fortunately, we
are at last becoming concerned. The increasing
attention given to it has raised our national consciousness about
what is always
and foremost an aggressive act. It is a violation that
is invasive and dehumanising. The consequences for the rape victim
are severe
and permanent. For many rape victims the process of
investigation and prosecution is almost as traumatic as the rape
itself.
[47]
To be weighed against the above are the personal circumstances of the
appellant. He is a man
that would have enough money for alcohol but
not enough money to have food for his family on the table. He is a
first offender
and alcohol played a role during the commission of the
offences. He has completed a N3 certificate qualification and was
employed
during the offence. He was under the stress of severe
financial constraints at the time of the offence. The responsibility
on him
to maintain a rather extended family was grave.
[48]
The appellant showed no remorse and blamed his children for the case.
He put the already fragile
children through the trauma of a trial.
They will have to live with the fact that their testimony had put
their father in prison.
It is a double tragedy; undeserved abuse and
the undeserved self-blame because you vilified your father.
[49]
The sentences are appropriate and must be confirmed.
[50]
ORDER
The appeal against the
convictions and the sentences is dismissed.
M
OPPERMAN, J
I
concur
N.S
DANISO, J
APPEARANCES
APPELLANT ADVOCATE
J POTGIETER
Instructed
by: P
Peyper
Peyper
Botha Attorneys
051
011 3352
EMAIL:
pieter@pbainc.co.za
BLOEMFONTEIN
RESPONDENT ADVOCATE
L MKHABELA
Office
of the Director of Public Prosecutions: Free
State
051
410 6000
BLOEMFONTEIN
[1]
Abbreviations
are used to protect the identity of the minors.
[2]
Unknown
writer.
[3]
Section
309(1)(a): Subject to section 84 of the Child Justice Act,
2008 (Act No. 75 of 2008), any person convicted of any
offence by
any lower court (including a person discharged after conviction)
may, subject to leave to appeal being granted in
terms of section
309B or 309C, appeal against such conviction and against any
resultant sentence or order to the High Court having
jurisdiction:
Provided
that if that person was sentenced to imprisonment for life by a
regional court under section 51(1) of the Criminal Law
Amendment
Act, 1997 (Act No. 105 of 1997), he or she may note such an appeal
without having to apply for leave in terms of section
309B
:
Provided further that the provisions of section 302(1)(b) shall
apply in respect of a person who duly notes an appeal against
a
conviction, sentence or order as contemplated in section 302(1) (a).
[4]
Paragraph
3 of the Notice of Appeal.
[5]
In
Rautini
v Passenger Rail Agency of South Africa
(Case no. 853/2020)
[2021] ZASCA 158
(8 November 2021) the inclusion
of "all discovered documents are what they purport to be"
is not unlawful. In fact,
it serves a legitimate purpose: it allows
the documents to be discovered as real evidence. However, parties
should be vigilant
and lead the evidence of the authors of those
documents if they intend to rely on the contents of the documents.
The importance
of this case lies in its timely reminder that
litigants should be vigilant when admitting evidence and avoid
falling into the
trap of believing real evidence can be documentary
evidence by virtue of a pre-trial minute agreement to this effect –
whether in the Labour Court, High Court, or other judicial forum.
This is especially true in criminal cases.
[6]
S
v Francis
1991 (1) SASV 198 (A) on 204.
The
trial Court delivered itself of a careful and well-reasoned
judgment. It is apparent, both from the terms of the judgment
and
the treatment of the evidence, that the Court was at all times
aware, when considering D's evidence, that it was dealing
with an
accomplice who was also a single witness. It was fully conscious of
the dangers inherent in such evidence and the need
to exercise
caution in the consideration and evaluation thereof. It was alive to
the shortcomings in D's evidence. It was also
aware of the
criticisms directed at D's evidence. (It is common cause that the
arguments advanced on appeal relating to the non-acceptability
of
D's evidence were raised at the trial.) Many of these have been
specifically dealt with in the judgment. The fact that some
have not
been mentioned does not mean that they were not duly considered. As
has frequently been said, no judgment can be all-embracing.
This
Court's powers to interfere on appeal with the findings of fact of a
trial Court are limited (
R v Dhlumayo
and Another
1948 (2) SA 677
(A)).
Accused No 5's complaint is that the trial Court failed to evaluate
D's evidence properly. It is not suggested that the
Court
misdirected itself in any respect. In the absence of any
misdirection the trial Court's conclusion, including its acceptance
of D's evidence, is presumed to be correct. In order to succeed on
appeal accused No 5 must therefore convince us on adequate
grounds
that the trial Court was wrong in accepting D's evidence - a
reasonable doubt will not suffice to justify interference
with its
findings (
R v Dhlumayo
(supra);
Taljaard v Sentrale Raad vir
Koöperatiewe Assuransie Bpk
1974
(2) SA 450
(A) at 452A-B). Bearing in mind the advantage which a
trial Court has of seeing, hearing and appraising a witness, it is
only
in exceptional cases that this Court will be entitled to
interfere with a trial Court's evaluation of oral testimony (
S
v Robinson and Others
1968 (1) SA 666
(A) at 675G-H).
[7]
Klink
v Regional Court Magistrate NO and Others
1996 (3) BCLR 402 (SE).
[8]
Paragraphs
3.4 and 3.5 of their Heads of Argument.