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[2022] ZAKZPHC 27
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Tshazi v S (AR22/21) [2022] ZAKZPHC 27 (20 June 2022)
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IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case no: AR22/21
In the matter between:
MDUDUZI
TSHAZI
APPELLANT
and
THE
STATE
RESPONDENT
ORDER
On
appeal from:
Umzimkhulu
Regional Court (sitting as court of first instance):
The appeal against the
convictions and related sentences imposed on count 1 (kidnapping) and
count 2 (rape) are dismissed.
JUDGMENT
Khallil
AJ (Henriques J concurring)
Introduction
[1] The appellant was
arraigned in the regional court, Umzimkhulu, on one count each of
kidnapping (count 1) and rape (count 2)
of the complainant, and of
housebreaking with intent to commit an offence unknown to the State
(count 3) and sexual assault (count
4).
[2]
In counts 1 and 2, it is not disputed that the complainant was under
the age of 16 years at the time of the commission
of the
offences. It is also alleged that the rape was committed in
circumstances where the complainant was raped more than once.
For
these reasons, the rape charge, falling within the ambit of Part I of
Schedule 2 of the Criminal Law Amendment Act 105 of 1997
(CLAA), was
substantively framed to be read with section 51(1) of the CLAA,
which prescribes, upon conviction, a sentence
of imprisonment for
life.
[1]
[3] The appellant having
pleaded not guilty to all four charges, was convicted on counts 1 and
2, and found not guilty and acquitted
on counts 3 and 4. He was
sentenced on 20 November 2020 to 5 years’ imprisonment for
kidnapping (count 1), and the learned
magistrate having found no
substantial and compelling circumstances that justified the
imposition of a lesser sentence in respect
of the rape conviction in
count 2, imposed the ordained sentence of imprisonment for life. The
sentence on count 1 was ordered
to run concurrently with the sentence
imposed on count 2.
[4]
The matter serves before us with leave of the court
a
quo
on both counts against both the conviction and sentence, without the
necessity of having to apply for leave to CPA).
[2]
[5] The main contention
of the appellant is that the complainant, being a minor when she
testified, was not admonished by the learned
magistrate to speak the
truth, and further that there was no competency enquiry conducted to
determine whether she had the capacity
to distinguish between truth
and falsehood.
[6]
The appellant contends that the trial magistrate also failed to
determine whether the complainant understood the nature and
import of
the oath and consequently, the court ought not to have placed any
reliance on her evidence.
[3]
The sole basis for this proposition is that the complainant was still
a minor at the time of testifying.
[7] It is common cause
that the complainant was a single child witness to the kidnapping and
rape. It is contended that her evidence
stood uncorroborated and that
the trial court, in evaluating her evidence, did not have proper
regard to the cautionary rules applicable
to the evidence of a single
witness and the evidence of a child witness.
[8] There was a delay of
around five months before the complainant made the first report of
the rape to one S[....], who allegedly
saw the complainant being
chased by the appellant on the day in question. The appellant
contends, that this evidence ought not
to have been accepted by the
trial court for the following reasons:
(a) S[....],
who lived in the area, was not called to testify nor was any
statement taken from him; and
(b) The
complainant only reported the matter to her mother at the insistence
of S[....] some five months after the alleged
incidents. The
allegations of kidnapping and rape, it is contended, were accordingly
not made freely and voluntarily by the complainant
to her mother.
[9] Regarding the
sentences imposed, it is contended that the learned magistrate failed
to attach sufficient weight to the personal
circumstances of the
appellant, and had proper cognizance been taken of these
circumstances, the court
a quo
ought to have found that
substantial and compelling circumstances did indeed exist justifying
a deviation from the prescribed sentence
of imprisonment for life
imposed in count 2 of rape.
Competency of
complainant as child witness
[10]
It is well known, if not trite, that before a child witness may give
evidence, the presiding officer must be satisfied that
he or she is a
competent witness. The term
‘competent’ refers to the ability to give
evidence and relates to whether the child has sufficient
intelligence,
sense and reason in order to understand the difference
between truth and falsehood, they recognise that it is wrong to tell
a lie,
and can understand and answer the questions put to him or
her.
[4]
[11]
There is no specific age at which a child can automatically be
assumed to have the requisite competence to testify and even
children
as young as 3 years old have been found to be competent to testify in
court.
[5]
In each case the presiding officer must satisfy him or herself that
the child has the necessary competence.
[6]
[12] Section 192 of the
CPA provides that ‘[every] person not expressly excluded by
this Act from giving evidence shall .
. . be competent and
compellable to give evidence in criminal proceedings’. Young
child witnesses appear to be one of the
exceptions to this provision.
[13]
The authors Schwikkard and Van der Merwe state as follows:
[7]
‘
Even
very young children may testify provided that they (a) appreciate the
duty of speaking the truth; (b) have sufficient
intelligence;
and (c) can communicate effectively’. (footnote omitted)
[14]
In terms of section 193 of the CPA, it is incumbent on the court in
which criminal proceedings are conducted to decide on the
competency
of any witness to give evidence. [15] The material question that the
trial court should ask itself is whether the young
witness’s
evidence is trustworthy. Trustworthiness depends on factors such as
the child’s power of observation, their
power of recollection
and their power of narration.
[8]
[16]
The complainant was 15 years old at the time of the alleged offences,
in grade 8, and was 17 years and 10 months old when she
testified at
trial.
[9]
Her evidence was given under oath without the use of an intermediary,
as envisaged in section 170A(1) of the CPA. The appointment
of an
intermediary by the court is however discretionary and is to be
invoked only where ‘it appears to such court that it
would
expose any witness under the biological or mental age of eighteen
years to undue mental stress or suffering if he or she
testifies at
such proceedings’. The trial court accepted that no undue
mental stress or suffering would befall the complainant
if an
intermediary was not used. It bears mentioning and is unfortunate
that the trial magistrate failed, at the very least, to
enquire into
the various statutory provisions which provide special measures for
children to testify, such as testifying
in
camera,
the prohibition of the publication of information that might reveal
the identity of the child and the use of an intermediary. In
providing these measures, the legislature clearly intended to
ameliorate those aspects of the criminal process that tend to expose
a child to secondary psychological trauma or emotional harm.
[10]
[17]
In casu
,
neither the State, nor the defence, raised any concerns regarding the
competency of the complainant or her appreciation of the
gravity of
taking the oath. The trial magistrate, clearly relying on the age of
the complainant (17 years 10 months), the submission
of the
prosecutor that it was not necessary to enquire into the
complainant’s competency and that she understood the import
of
taking the oath, proceeded to administer the oath. The defence raised
no qualms on any of these issues. It remains, however,
that the
learned magistrate failed to ascertain if the complainant understood
the nature and import of the oath and may be justifiably
criticized
for relying on the assertion of the prosecutor that a competency
enquiry was not necessary.
[18] The material issue
is whether, given the facts of this case, it was necessary for the
magistrate to conduct a competency enquiry
and to determine if the
complainant understood the nature and import of the oath, and if so,
whether these omissions rendered the
complainant’s evidence
either inadmissible, alternatively, of so little probative value,
that no reliance could be placed
thereon.
[19]
The record reflects that the approach by the court
a
quo
was
to first confirm the age of the complainant as 17 years 10 months
before she testified. The prosecutor on enquiry from the magistrate
was of the view that it was not necessary to enquire into the
competency of the complainant and that she understood the import
of
taking the oath, nor was it necessary for the complainant to give her
evidence through an intermediary as envisaged in section
170A of the
CPA.
[11]
[20] On page 91, the
record reflects that immediately after the complainant was sworn in,
the following questions were first put
to her by the prosecutor in
examination in chief:
‘
Prosecutor:
Thank you, your worship. (s)
Do
you go to schoo
l-----
yes I do.
What
school do you attend?
Secondary
school.
You
know you are at court today, correct?
-----
Yes.
Why
are you at court today?
----
I laid a charge for being sexually assaulted.
Do
you remember when that happened?
----
yes.
When
was it?
----
It was 24 April 2018.’ (My emphasis)
[21] The above extract
and earlier enquiries by the learned magistrate directed to the
prosecutor, reflects that the magistrate
was aware of the
complainant’s age (two months short of being an adult). There
was nothing to suggest that the complainant
could not distinguish
between truth and falsehood or that she was of such a young age that
she did not understand the nature and
import of taking the oath or
that there were any concerns regarding her competency. This appears
to be the rationale, gleaned from
the record, of why the learned
magistrate simply administered the oath to the complainant.
[22] Save for the two
exceptions in section 163 (affirmation in lieu of oath) and
section 164 (admonishment) of the CPA, section
162, as a
starting point, requires that all witnesses be sworn in before
testifying. This is exactly what the learned magistrate
did.
[23] Had there been any
indication to the contrary regarding the complainant taking the
prescribed oath, only then would it have
been necessary for the
provisions of section 164(1) of the CPA to have been invoked.
This section provides:
‘
Any
person, who is found not to understand the nature and import of the
oath or the affirmation, may be admitted to give evidence
in criminal
proceedings without taking the oath or making the affirmation:
provided that such person shall in view of the oath
or affirmation,
be admonished by the presiding Judge or Judicial Officer to speak the
truth.’
[24] The appellant’s
reliance on the complainant not being admonished by the trial
magistrate is accordingly without merit
as there was no indication at
all that the complainant, who was almost an adult at the time when
she testified, did not understand
the sanctity of the oath. Surely if
there were any concerns, it was open to the legal representatives
themselves, in fact a duty
on them, to have raised such concerns with
the trial magistrate, which they did not do. There was also nothing
to suggest that
the complainant could not distinguish between truth
and falsehood. This perhaps explains why no such concerns were raised
before
the trial court.
[25]
The Supreme Court of Appeal, in
S
v B
,
[12]
held that the presiding officer did not have to hold an explicit
enquiry to determine that a child witness did not comprehend the
oath
or affirmation before proceeding to admonish the witness to tell the
truth. All that is required is that there be some rational
basis to
justify the presiding officer reaching the conclusion that the
witness did not understand the oath or affirmation. The
court held
that in some cases the mere age of the child would be sufficient to
justify a presumption that the child did not understand
the oath. The
court however did not specify at what age this could be assumed. In
my view, by similar reasoning, the converse is
equally true that a
child by mere age (17 years 10 months), and in the absence of any
indication to the contrary, is sufficient
to justify the presumption
that the child did indeed understand the import of the oath and is a
competent witness without the need
for any explicit enquiry. This
acceptance by the learned magistrate was re-affirmed by the manner in
which the complainant testified
in court. There was simply nothing
that could be gleaned from the record, even remotely, to suggest
otherwise.
[26]
In
S
v Chalale
,
[13]
the child witnesses were 15 and 17 years of age and the magistrate
assumed on the basis of their ages that they lacked the capacity
to
comprehend the oath, and proceeded to admonish them to tell the
truth. The high court disagreed with the approach taken by the
magistrate, holding that children of 15 and 17 years of age usually
do understand the nature and sanctity of the oath, and cannot
therefore be presumed not to understand it. In S v SD
[14]
,
the court followed a similar approach in accepting a 13-year old
complainant’s evidence as reliable.
[27] Given the above
circumstances, I am of the view that it was not necessary for the
magistrate to hold any explicit competency
enquiry and that the trial
court was justified in assuming that the complainant knew and
understood the import of taking the prescribed
oath, a finding
reinforced by the manner in which the complainant testified in
examination in chief and throughout the extensive
cross-examination.
Merits
[28]
Turning to the merits of the appeal, counsel for the appellant
rightly emphasised that there were two reasons for the complainant’s
evidence to be evaluated with caution, namely, she was a child
witness, albeit almost an adult when she testified, and also a single
witness.
[29] According to the
complainant, who was 15 years old at the time of the incidents, she
and two other children, were returning
home on foot from a cultural
event close to the area where she lived, when she was accosted by the
appellant who initially greeted
them and proceeded to grab her. She
tried to resist but was overpowered. The appellant carried sticks in
one hand. He dragged the
complainant until they reached a homestead
and when she attempted to escape, he managed to catch her close to a
church. He forced
the complainant into the church, asked her to
undress and raped her by inserting his penis into her vagina. The
appellant also
had a knife in his possession.
[30] He then forced the
complainant into his homestead and compelled her to spend the night
with him. During this time, he raped
the complainant three times
whilst she cried. In the early hours of the following morning at
around 2h00, he escorted the complainant
close to her grandmother’s
house. He threatened her that if she told anyone about what happened,
he knows where she lived
with her two minor siblings and harm would
befall them. It is not in dispute that the complainant’s
mother, because of employment,
lived elsewhere and returned home only
at month-end.
[31]
She was a virgin before the rape and after this incident she felt
pain inside her vagina for days, bled a little and could
not walk
properly.
[15]
She could also see some blood on her panty at the time she was being
raped in the appellant’s room.
[32]
Before this incident, on occasion, she saw the appellant in the area,
and the appellant would greet her and want to talk to
her. He
appeared to be romantically interested in her.
[16]
This was reinforced by the appellant when he testified that he
‘proposed’ love to her before this incident.
[33]
The complainant did not report the kidnapping and rape to anyone
until some five months later when she met S[....], who had
seen her
being chased by the appellant on the day in question, and who also
briefly spoke to the appellant at the time. As S[....]
informed the
complainant that the appellant was no longer in the area, she related
to him what had transpired, this being the first
report she made of
the kidnapping and rape to anyone. S[....] also begged her to tell
her mother what had happened. Although not
known to her, S[....] was
from the same area where she lived.
[17]
At the trial, S[....] was however not called to testify.
[34]
In cross-examination the focus largely fell on the delay in reporting
the alleged kidnapping and rape, and to whom the complainant
had
reported this incident. It was put to her that S[....] had influenced
her to lay false charges against the appellant as S[....]
and the
appellant had problems between them. The complainant denied being
unduly influenced by S[....] and was adamant that all
he advised her
to do, was simply ‘to speak the truth while there is still
time’.
[18]
[35]
The version of the appellant put to the complainant was that she
willingly accompanied him to his room on the day in question.
When
they got there, they watched a movie on his laptop and spoke.
Strangely, part of the conversation according to the appellant
himself, revolved around the virginity of the complainant (which the
complainant denied), and it was put to her that the appellant
would
testify that he told the complainant that as she was a virgin, he did
not ‘want to deflower’ her because he would
be ‘forced
to pay damages’.
[19]
The appellant, it was further put, would deny having sexual
intercourse with the complainant.
[36] The appellant’s
evidence was largely in accordance with the case put to the
complainant by his counsel. He contradicted
himself on some issues
and save for denying that she forcibly accompanied him on the day in
question and that he had sexual intercourse
with her as alleged or at
all, he took no issue with much of the version of the complainant
relating to the surrounding circumstances.
[37]
The following facts, relating to the incident, are common cause:
(a)
The date and place of the incident;
(b)
Identity of the complainant and the appellant;
(c)
The appellant met the complainant on the day in question whilst she
was in the company of two
other children;
(d)
Complainant spent a night with the appellant in his room; and
(e)
The complainant left the appellant’s residence in the early
hours of the following morning.
[38]
The medico-legal examination report by the doctor was handed in by
consent and the doctor was not called to give evidence.
The Supreme
Court of Appeal
[20]
has cautioned that such practice is generally speaking to be
discouraged because there is no opportunity for the doctor to explain
the ‘frequently subtle complexities and nuances of the report;
to clarify points of uncertainty and to amplify upon its implications
and the reasons for any opinions expressed in the report’. The
importance of the doctor testifying is that it may make the
difference between a conviction and an acquittal or perhaps a
conviction on a lesser charge.
[39]
The medical examination was however conducted some five months after
the incident and the report revealed in paragraph 11,
a ‘tear
over the right lateral aspect’ of the hymen. The conclusion in
paragraph ‘K’ (on page 46) of the
said report reads ‘Torn
hymen on right lateral aspect’. These findings and conclusions
were not in dispute and in the
absence of any suggestion to the
contrary, must serve as independent corroboration of the
complainant’s version of the sexual
intercourse.
[21]
The lack of clarity in the doctor’s report is overcome by the
complainant’s evidence, namely, that the appellant inserted
his
penis into her vagina, she was raped more than once, that she bled,
her vagina was painful and she could not walk properly
thereafter.
[40]
The common cause facts relating to the appellant meeting the
complainant on the day in question and that that she spent the
entire
night with the appellant clearly reduces the risk of any
suggestibility of the appellant being falsely accused. The appellant
was clearly, by his own admission attracted to the complainant,
having proposed love to her even before this incident during 2018.
By
his own admission it was discussed whether or not she was a virgin.
He must accordingly have contemplated having sexual intercourse
with
her and according to him was only dissuaded by having to pay
‘damages’ if he were to do so as she was still a
virgin.
[22]
[41]
It is trite that the appellant’s conviction can only be
sustained if on a consideration of all the evidence, his version
of
events is so highly improbable that it cannot reasonably possibly be
true, or where his version can be rejected as false beyond
a
reasonable doubt on the basis of credible evidence.
[23]
[42] The objective and
undisputed evidence shows that the complainant was subjected to
sexual intercourse. She was in the appellant’s
room alone in
his company for an entire night. By his own version, he contemplated
having sexual intercourse with her but was dissuaded
by having to pay
‘damages’ as she was a virgin. This is further fortified
by the appellant’s behaviour when seeing
the complainant in the
area before this incident, as he showed a romantic interest in her.
His suggestion that S[....] put the
complainant up to telling a
dishonest story as he and S[....] did not see ‘eye to eye’,
without elaboration, is far-fetched
and highly improbable,
particularly given the facts that are common cause and not in
dispute.
[43]
In
MM
v S
,
[24]
the Supreme Court of Appeal in paragraph 18 stated:
‘
Whilst
in many cases the fact that an accused person gives a false version
of events is not decisive of the merits of a conviction,
in this
case, where the falsity relates to events on a particular day at a
particular place involving him and the complainant,
if his version
cannot reasonably possibly be true, its falsity lends strong support
to the truth of the complainant's evidence.’
[44]
The only direct evidence implicating the appellant was that of the
complainant. For such evidence to be accepted, it is trite
that it
must be clear and satisfactory in all material respects.
[25]
The trial magistrate in the evaluation of the complainant’s
evidence, was mindful of the need to treat her evidence with
caution
because she was 17 years and 10 months old at the time of testifying
and was a single witness.
[26]
The courts have said it often enough that the exercise of caution in
assessing evidence, should however not be allowed to displace
the
exercise of common sense.
[27]
[45]
The complainant was a good witness who testified in a clear, coherent
and satisfactory manner on all material aspects. She
had a good
recollection of the events on the day in question and much of the
surrounding facts she related in her evidence is common
cause,
alternatively, has not been disputed by the appellant. She withstood
cross-examination well and did not contradict herself.
An assessment
from the record suggests that the complainant is a trustworthy,
mature and intelligent witness. I have little hesitation
in endorsing
the findings of the trial magistrate that the complainant made a good
impression on the trial court.
[28]
A conviction on the basis of the evidence of a single witness is
competent in terms of section 208 of the CPA. In
R
v Mokoena
[29]
De Villiers JP stated of the equivalent provision in the 1917 Act
that
‘
uncorroborated
evidence of a single competent and credible witness is no doubt
declared to be sufficient for a conviction . . .
but in my opinion
that section should only be relied on where the evidence of the
single witness is clear and satisfactory in every
material respect.’
[46]
It is so that the ‘first report’ witness S[....] was not
called to testify and nor were the two children who were
in the
company of the complainant on the day in question when she was
accosted by the appellant, called to testify. The relevance
of the
first report, it is trite is admissible to show consistency in the
version of the complainant.
[30]
Nothing more. However, given the facts which are common cause and
those not in dispute, coupled with the satisfactory evidence
of the
complainant in all material respects, the failure of S[....]’s
testimony does not detract from the strength of the
State’s
case. Corroboration is a useful aid in overcoming the cautionary rule
but there is also no rule of law, that the
evidence of a child must
be corroborated before acceptance.
[31]
[47] When the evidence is
weighed in its totality, it amply supports the trial court’s
finding that the appellant’s
version could not reasonably
possibly be true and that the evidence of the complainant, when
viewed with the appropriate caution
because she was a minor (two
months short of being an adult) and the fact that she was a single
witness, could be accepted.
[48]
There was a delay of five months in the complainant reporting the
rape. The complainant gave a satisfactory explanation regarding
this
delay. She was threatened by the appellant that if she reported the
incident, harm would befall her and her family. The complainant
lived
with her young siblings and her mother only returned home at
month-end. She felt safe to report the incident to S[....] some
five
months later when she met him as he pleaded with her to inform him or
her mother of what had transpired on the day in question.
The
complainant seems to have been eventually persuaded to relate the
events to S[....] when he informed her that that appellant
was no
longer in the area. In such circumstances, the delay in
reporting is understandable.
[49] Section 59 of the
Criminal Law (Sexual Offences and Related Matters) Amendment Act 32
of 2007 (SOA) pertaining to delays in
reporting of sexual offences
provides that:
‘
In
criminal proceedings involving the alleged commission of a sexual
offence, the court may not draw any inference only from the
length of
any delay between the alleged commission of such offence and the
reporting thereof.’
[50] Section 58 of the
SOA relating to previous consistent statements regarding sexual
offences provides that:
‘
Evidence
relating to previous consistent statements by a complainant shall be
admissible in criminal proceedings involving the alleged
commission
of a sexual offence: provided that the court may not draw any
interference only from the absence of such previous consistent
statements.’
[51] In the light of the
above, I am satisfied that there is no basis to interfere with the
court
a quo’s
finding that the version of the appellant
is so highly improbable that it could not reasonably possibly be true
justifying its rejection,
and that the State had proved beyond a
reasonable doubt that the appellant is guilty of the crimes of
kidnapping and multiple rape
of the complainant.
Sentence
[52]
It is trite that an appeal court can only interfere with a sentence
imposed by the court
a
quo
if there is a material misdirection by the trial court or if there is
such a grave disparity between the sentence imposed by the
court
a
quo
and the sentence the appeal court would have imposed if it were the
trial court. It is also trite that the disparity should be
shocking
or disturbingly inappropriate, or vitiated by irregularity, to
justify interference.
[32]
[53] The rape of
particularly women and children has reached alarming levels in South
Africa. It constitutes a vile, humiliating,
degrading and a brutal
invasion of their privacy, dignity and self-worth as a person.
Children look up to adults in society to
guide, care for and protect
them. When this trust is breached, it leaves children in a helpless
situation and society looks towards
the court to act decisively
against persons convicted of such shameless acts. The severe ordained
sentence that the legislature
has prescribed for rape of the type in
this matter is imprisonment for life.
[54] The fact that the
complainant was held against her will overnight at the complainant’s
residence aggravates the commission
of the rape. So too the fact that
she was raped several times during her period of captivity and
threatened with a knife and sticks.
The appellant simply took
advantage of a defenceless young girl who was just five years older
than his own son.
[55] The appellant was 32
years of age, single and has a 10-year-old child. He has a standard 9
or grade 11 level of education.
He has a previous conviction in 2013
for being in possession of a dangerous weapon for which an admission
of guilt fine of R100
was paid. In 2015 he was convicted of assault
and
crimen injuria
and paid an admission of guilt fine of
R300. In 2016 he was convicted of kidnapping and sentenced to 2
years’ imprisonment.
The appellant spent almost 2 years in
custody awaiting finalisation of his case in the court
a quo
.
There is nothing we could glean from the record evidencing any
remorse on the part of the appellant.
[56]
The trial court, in sentencing the appellant balanced the seriousness
of the offences, the appellant’s personal circumstances
as well
as the interests of society.
[33]
[57] It is also trite by
now that courts should not deviate from the prescribed sentences
ordained by the legislature lightly or
for the flimsy reasons.
[58] I am satisfied that
the court
a quo
correctly found that the circumstances which
warranted a departure from the prescribed sentence of imprisonment
for life on the
rape conviction were non-existent. Nor were the
sentences imposed, disproportionate or unjust in the light of the
triad referred
in
Zinn
’s case.
[59]
In the result, the following order is proposed:
The appeal against the
convictions and related sentences imposed in count 1 (kidnapping) and
count 2 (rape) are dismissed.
The convictions and
sentences of the court a quo are confirmed.
________________
KHALLIL
AJ
I agree
HENRIQUES
J
Appearances
:
For Appellant:
V E Ngwenga
Instructed by:
Justice Centre
PIETERMARITZBURG
For Respondent:
T Shabalala
Instructed by:
Director of Public Prosecutions
PIETERMARITZBURG
Date of Appeal:
13 May 2022
Date of Judgment:
20 June 2022
[1]
Rape falling
within the ambit of Part I of Schedule 2 of Criminal Law Amendment
Act 105 of 1997 (CLAA), where, amongst others,
‘the victim is
under the age of 16 years’ or where the rape was committed in
circumstances ‘where the victim
was raped more than once’
whether by the accused or by any co-perpetrator or accomplice.
Section 51(1) of CLAA provides
that
‘
Notwithstanding
any other law, but subject to subsections (3) and (6), a regional
court or a High Court shall sentence a person
it has convicted of an
offence referred to in Part I of Schedule 2 to imprisonment for
life’.
[2]
Section 309(1)
(a)
of
Criminal Procedure Act 51 of 1977
provides 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
. . .’.
[3]
Paras 3 – 10
of appellant’s head of argument.
[4]
DT
Zeffert
et
al Essential Evidence
2 ed (2020) at 278 and 337 – 338.
[5]
R v Bell
1929 CPD 478
;
R
v Manda
1951 (3) SA 158
(A);
R
v J
1958 (3) SA 699 (SR).
[6]
S v L
1973 (1) SA 344
(C);
S
v T
1973 (3) SA 794 (A).
[7]
PJ Schwikkard and
SE van der Merwe (eds)
Principles
of Evidence
4 ed (2016) at 451.
[8]
Woji v Santam
Insurance Company Ltd
1981(1) SA 1020 (A) at 1021.
[9]
Record, page 91,
lines 13-14; page 41 of the Bundle (Exhibit “A”) –
birth certificate of complainant.
[10]
Sections 153
,
154
,
158
and
170A
of the
Criminal Procedure Act 51 of 1977
; S
v
Mokoena; S v Phaswane
[2008] ZAGPHC 148
;
2008 (2) SACR 216
(T), para 50;
Director
of Public Prosecutions, Transvaal v Minister of Justice and
Constitutional Development
[2009] ZACC 8
;
2009 (2) SACR 130
(CC);
2009 (7) BCLR 637
(CC);
Centre
for
Child
Law and others v Media 24 Limited and others
[2019] ZACC 46
;
2020 (1) SACR 469
(CC);
2020 (3) BCLR 245
(CC)
[11]
Record at 91, line
14.
Chili
v The State
(AR754/14)
[2016] ZAKZPHC 12 (12 February 2016) paras 57 – 58
[12]
S v B
2003 (1) SACR 52
(SCA);
Haarhoff
and another v Director of Public Prosecutions, Eastern Cape
[2018] ZASCA 184
,
2019 (1) SACR 371
(SCA),
[2019] 1 All SA 585
(SCA) from para 27.
[13]
S v Chalale
2004 (2) SACR 264
(W) para 3.
S
v Sikhipha
2006
(2) SACR 439
(SCA) paras 13 – 14, here the court emphasized
the point that there was nothing in the evidence presented in court
that
showed that the children (aged 14 and the other child was not
known) did not understand the import of the oath. (
Sikhipha
para
13 was followed in
S
v Mali
2017 (2) SACR 378
(ECG) para 12.)
[14]
S v SD 2020(1)
SACR 78 (KZP), at paragraphs 22-26,
[15]
Record at 109,
lines 21 – 25.
[16]
Record at 107,
lines 5 – 10.
[17]
Record at 102,
lines 18 – 19 and at 103, lines 4 – 5.
[18]
Record at 111,
lines 8 – 12.
[19]
Record at 115,
lines 21 – 25, at 116, lines 1 – 2; at 141, lines 22 –
23 and at 150, lines 10 – 12.
[20]
MM v S
[2011] ZASCA 5
,
2012 (2) SACR 18
(SCA),
[2012] 2 All SA 401
(SCA) para 15.
[21]
R v Manda
1951 (3) SA 158
(A); Exhibit ‘B’ of the bundle of documents at 42 –
47.
[22]
Record at 111,
lines 8 – 12.
[23]
S v V
2000 (1) SACR 453
(SCA) at 455B para 3.
[24]
MM v S
[2011] ZASCA 5
,
2012 (2) SACR 18
(SCA),
[2012] 2 All SA 401
(SCA) para 18.
[25]
Y v S
[2020] ZASCA 42
,
at paragraphs 48-51
[26]
Record at 178,
lines 6 – 10;
S
v Sauls
1981 (3) SA 172 (A), [1981] 4 All SA 182 (A).
[27]
S v Artman and
another
1968
(3) SA 339
(A) at 341.
[28]
Record at 178,
lines 21 – 25, and at 179, lines 1 – 18.
[29]
R v Mokoena
1932 OPD 79
at 80;
Modiga v The State
[2015]
ZASCA 94
,
[2015] 4 All SA 13
(SCA) para 32
[30]
S v Ganga
2016
(1) SACR 600
(WCC) paras 27-30,
S
v Heroldt
2018 (2) SACR 69
(KZP) from para 11,
Kaibe
v S
[2019]
ZAFSHC 179
paras 11 – 12, and
Director
of Public Prosecutions Western Cape v Regional Magistrate Wynberg
and others
[2022] 1 All SA 154
(WCC) para 63.
[31]
Record, page 91,
lines 13-14; page 41 of the Bundle (Exhibit “A”) –
birth certificate of complainant. See also
R
v Manda
1951
(3) SA 158
(A);
R
v Bell
1929 CPD 478
;
R
v J
1958 (3) SA 699 (SR).
[32]
S v Malgas
2001 (2) SA 1222
(SCA),
[2001] 3 All SA 220
(A) para 12,
S
v Bogaards
[2012] ZACC 23
,
2013 (1) SACR 1
(CC) para 41.
[33]
S v Zinn
1969 (2) SA 537
(A).