About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Bhisho
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Bhisho
>>
2022
>>
[2022] ZAECBHC 38
|
|
Tyatyeka v S (CA&R/21/2021) [2022] ZAECBHC 38; 2023 (1) SACR 193 (ECB) (8 November 2022)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, BHISHO)
CASE
NO.: CA&R/21/2021
Matter heard on: 4
November 2022
Judgement delivered
on: 8 November 2022
In
the matter between:
SISIPHO
TYATYEKA
APPELLANT
and
THE
STATE
RESPONDENT
APPEAL JUDGMENT
CHITHI AJ:
[1]
The
Appellant was charged in the Mdantsane Regional Court with rape in
contravention of s 3 read with ss 1, 2, 50, 56(1) 56A, 57,
58, 59, 60
and 61 of the Criminal Law (Sexual Offenses and Related Matters)
Amendment Act
[1]
(‘SORMA’).
This charge was further read with provisions of ss 256 and 261 of the
Criminal Procedure Act
[2]
(‘CPA’), s 51(1) and Schedule 2 of the Criminal Law
Amendment Act
[3]
(‘CLAA’)
as well as s 120 of the Children’s Act.
[4]
[2]
The offence is alleged to have occurred on 1 November 2018 at or near
NU5, Mdantsane. The state alleged that the appellant unlawfully and
intentionally committed an act of sexual penetration with the
complainant, who was at the time 14 years of age, by inserting his
penis into her vagina, without her consent.
[3]
When the trial started on 30 October 2019, the appellant pleaded not
guilty
and asserted that he and the complainant had consensual sexual
intercourse. The state successfully applied, in terms of s
170A
of the CPA, for the complainant to testify in a separate room
adjoining the court room via a closed-circuit television with
the
assistance of an intermediary, Ms Phumla Tshona. The
complainant was 15 years old at the time.
[4]
On 10 February 2020, the appellant was found guilty as charged and on
10 March 2020 he was sentenced to undergo eighteen (18) years
imprisonment. The appellant appeals to this court against his
conviction with the leave of the court
a quo
.
[5]
The complainant testified that while she and her two companions were
standing
in the street, the appellant emerged driving in a motor
vehicle. The appellant and the complainant knew each other as
they
resided in the same section in Mdantsane, namely NU 5A.
The appellant was more like a family friend as he would from time
to
time be requested by the complainant’s mother to run her
errands. The appellant requested the complainant to accompany
him to the Highway taxi rank. The complainant boarded the motor
vehicle and the appellant drove to the Highway taxi rank.
There he
dropped off a person. He thereafter drove to the taxi rank at
NU 6 where he dropped off another person. He
then drove to a
shack that belonged to Phumlani Ncuncwa (‘Phumlani’).
The appellant then dragged the complainant
from the motor vehicle to
the shack. Phumlani then went out and locked the appellant and
the complainant from outside, after
having spoken to the appellant in
a language the complainant did not understand. The appellant
then had sexual intercourse
with the complainant without her
consent. When Phumlani came back after approximately ten
minutes, the appellant told him
to return at 19:00. Phumlani returned
at 19:00 and the appellant dragged her into the car. The
appellant then drove to the
garage where they met persons named Bobby
and Luyanda, who told the complainant that her mother was looking for
her. From
the garage, the appellant drove off and stopped by a
pole, alighted from the vehicle, and spoke to certain gentlemen who
told him
that the police were looking for him. The appellant
then sped off. He was blocked by two vehicles when he was about
to drive past the complainant’s home. This is where the
complainant’s mother found them.
[6]
The complainant’s mother corroborated her evidence in relation
to
the incident after the appellant’s motor vehicle was blocked
just behind her home. She confirmed that the appellant
came
over to her car and apologised. She also confirmed that the
complainant reported to her that she was raped by the appellant.
She
then went to NU1 police station to open the case against the
appellant. She then took the complainant to Cecelia Makiwane Hospital
where she was examined and tested for HIV and AIDS and given
medication. The complainant was in the process of starting a
support group of rape victims and she is starting to open up about
being a rape victim.
[7]
The doctor who examined the complainant was not called to testify.
However,
his medical report was admitted into evidence by consent.
The doctor’s conclusions were that there was no hymen, there
were also fresh tears at 3, 6 and 9 o’clock respectively, the
vaginal fascia was grossly bruised and there was a bump at
7 and 5
o’clock respectively. The doctor concluded that these
findings were suggestive of forceful entry. He
added that
sexual assault cannot be excluded.
[8]
The state closed its case and the appellant thereafter testified. His
testimony was largely consonant with that of the complainant, except
that he alleged that the sexual intercourse was consensual.
Moreover,
he denied dragging the complainant to and from Phumlani’s
shack. The appellant further adduced the evidence
of Phumlani,
who confirmed having met the appellant and the complainant on his way
to the shop. He further confirmed having
allowed the appellant
to use his shack to sleep with the complainant and that he had locked
the shack from outside.
[9]
The appellant’s appeal was initially founded
on the following grounds:
9.1
The trial court erred in finding that
the
state proved its case against him beyond reasonable doubt.
9.2
The trial court erred in finding that the evidence of the complainant
was clear in all material
respects.
9.3
The trial court erred in failing to approach the evidence of the
complainant with caution in view
of her not only being a child
witness, but also a single witness.
9.4
The trial court erred in finding that his evidence and that of his
witness was not clear and satisfactory
and that it was filled with
contradictions, even though those contradictions were not material.
9.5
The trial court erred in finding that his version was so improbable
that it cannot be said to
be reasonably possibly true.
[10]
The appellant later refined his grounds of appeal by way of his
amended notice of appeal,
in terms of which he relied only on the
ground that the court
a quo
did not comply with the peremptory
requirement to admonish the complainant, who was a child witness.
Consequently, the complainant’s
evidence was neither given
under oath nor under admonishment and was therefore inadmissible.
[11]
Although the appeal, therefore, turns on whether the court
a quo
conducted a proper enquiry to determine whether the complainant
understood the nature and the import of an oath, neither counsel
supplemented their heads of argument to reflect that the appellant
was now appealing only against the court
a quo
’s failure
to comply with the peremptory requirement to admonish the complainant
before she testified. Thus, in order
to avoid any prejudice to
the appellant, we shall consider the appeal on the basis of the
following issues:
10.1 whether the
court
a quo
conducted a proper enquiry whether the complainant
understood the nature and the import of the oath; and
10.2 whether the
state was able to prove its case against the appellant beyond
reasonable doubt.
[12]
Ms Dyantyi,
on behalf of the appellant, contends that the court
a
quo
did
not comply with the peremptory requirement to admonish the
complainant who was a child witness; the complainant did not
understand
the nature and the import of taking the oath, and the
court
a
quo
should
therefore have made the enquiry in terms of s 164(1) of the CPA.
She relies in this regard on
Director
of Public Prosecutions, KZN v Mekka
.
[5]
Ms Dyantyi contends that the court
a
quo
did
not satisfy itself that the complainant understood the adverse
consequences which would befall her if she lied. Ms
Jodwana-Blayi,
on behalf of the state, on the other hand, submitted
that the complainant was sworn in after the court
a
quo
had
established that she understood the meaning of an oath. She,
therefore, submitted that the complainant’s evidence
was
admissible.
[13]
It is trite law that only admissible evidence can be accepted as
evidence in a court of
law. It is therefore required of
judicial officers, when dealing with child witnesses, to determine
whether they have the
competency to testify. The court
a quo
was therefore enjoined to determine if the complainant was able to
distinguish between the truth and falsehood. For the purposes
of this judgment, in order to protect the identity of the complainant
I would refer to her as either as the complainant or A.
The
approach which the court adopted before the complainant testified is
as set forth in the following extract:
‘
COURT
:
Good morning, A. How are you this morning?
A
: I am fine
thanks and you
COURT
: I am fine.
A, do you understand what it means to take an oath?
A
: Yes;
COURT
: What does
it mean to take an oath?
A:
To promise that
you will be telling the whole truth.
COURT
: And if you
do not tell the whole truth, is it right?
A
: No, it is not
right
INTERVENTION
A
: (Duly Sworn
States)
After the short
adjournment
:
COURT
: Ms Tshona,
can you hear us? Ms Tshona and A can you hear us?
MS TSHONA
: Yes,
Your Worship.
COURT:
Are you now
in, how do you feel now?
A
: I feel better.
COURT
: If you are
uncomfortable, please notify the Court so that we can again take an
adjournment.
A
: (Warned still
under former oath)
A
: Yes.
COURT
: Thank you.
COURT
: Due to the
lateness of the hour, the matter is now remanded for continuation.
Stand up, sir. I am told also the witnesses
are writing exams
so we need to give them a chance and then once they are done then.
Where is the witness so that I can warn
the witness not to, where is
the witness?
PROSECUTOR:
Your
Worship?
COURT
: The one
that is still under oath. Ms Tshona, please.
PROSECUTOR
: Your
Worship, she is the guardian of that witness, this one.
COURT
: Yes, I have
got to warn her that she is still under oath.
PROSECUTOR
: But
she cannot come inside here.
COURT
: No, no, I
want her back to the intermediary room. Yes, and the name of the
person that has been…[indistinct]. A,
the Court is now
warning you to be back in Court on 25 November. You are now
given an opportunity to go and write your exams
and then you come
back. You must not discuss this case with any other person
because you are still under oath.
A
: No problem.
COURT
: Thank you,
sir, ma’am, you are excused.
PROCEEDINGS ON 5
DECEMBER 2019 (11: 57
EVIDENCE FOR THE STATE
CONTINUES)
COURT
:
(inaudible). Madam, A - good day. On the 30 of October, this Court
did a competency test, and the Court was satisfied that you
are a
competent witness and the Court was satisfied that you understand,
you know the difference between the truth and the lie.
Today, I am –
I now admonish you to speak the truth, and nothing but the truth, in
terms of Section 164(1)(?) of the Criminal
Procedure Act 51 of 1997.
A
: (Admonished)
(Through interpreter).
COURT:
Do you
understand madam?
A
: Yes
COURT
: Thank you,
madam. Yes, Mr Siganeko, you may be seated.
COURT
: Ma’am,
we will take lunch adjournment, it’s 10 to 1 now, we will take
lunch adjournment, then we will be back at 2
o’clock is that
fine Mr Jack …(inaudible)?
PROSECUTOR:
Yes
---(inaudible).
COURT:
Inspector,
please tell the witness to return to where she was…(inaudible).
A, you must not discuss this case with
other witnesses, and you must
– can you hear ma’am? Let me first establish, can you
hear us there - A can you hear
us?
A
: Yes.
COURT
: Okay, thank
you. The matter will stand down until 2 o’clock.
ON RESUMPTION AFTER
LUNCH ADJOURNMENT
COURT
: A, good
afternoon, are you in a position that we can proceed, now?
A
: Yes, we can
proceed.
COURT
: I again
admonish you to speak the truth and nothing but the truth,
understand? Understand?
A
: Yes.
COURT
: Okay. Yes.
A
: (Warned still
under former oath) (Through interpreter)’
[14]
What is set out above is the exchange between the complaint and the
court
a quo
in relation to the swearing-in of the complainant
to speak the truth or the admonishment of the complainant to speak
the truth.
Section 162(1) of the CPA provides that subject to ss 163
and 164, no person shall be examined as a witness in criminal
proceedings
unless he is under oath. Section 163 of the CPA on
the other hand provides for an affirmation to be taken
in lieu
of
an oath, where a person does not believe in God or subscribes to
taking an oath.
[15]
Section 164 (1) of the CPA provides that any person, who is found not
to understand the
nature and import of the oath or the affirmation
may be permitted to give evidence in criminal proceedings without
taking the oath
or making the affirmation: provided that such a
person shall,
in lieu
of the oath or affirmation, be
admonished by the presiding judge or judicial officer to speak the
truth.
[16]
This section enjoins the court to satisfy itself that the witness
understands the nature
and import of the oath or affirmation first
before deciding to have them admonished. The presiding officer
must first make
a finding regarding a witness’s competency
before a witness can either be sworn in or take affirmation.
The same applies
to children called to testify.
[17]
‘Even
very young children may testify provided that they (a) appreciate the
duty of speaking the truth; (b) have sufficient
intelligence; (c) and
can communicate effectively.’
[6]
[18]
Section 192 of the CPA on the other hand goes further to state that
if a child does not
have the ability to distinguish between the truth
and untruth, such a child is not a competent witness. It is the
duty of
the presiding officer to satisfy himself or herself that the
child can distinguish between the truth and untruth. The
maturity
and understanding of the child must be established by the
judicial officer, who must ascertain a level of intelligence for the
child to give evidence in the trial proceedings.
[19]
In
S
v QN
[7]
Gorven J (as he then was) Wallis J and Ngwenya AJ concurring held
that:
‘
In essence there
is a need to establish whether or not the child is capable of
distinguishing between truth and falsehood.
There is no minimum
age required for a competent witness; it must be adjudged whether
each witness meets the requirements of competence.’
[20]
In
Director
of Public Prosecutions Transvaal v Minister of Justice and
Constitutional Development and Others
[8]
Ngcobo
J (as he then was) stated as follows:
‘
Section 164 (1)
allows a Court to allow a person, who does not understand the nature
or the importance of an oath or a solemn affirmation,
to give
evidence without taking an oath or making an affirmation.
However, the proviso to the subsection requires the presiding
officer
to admonish the person to speak the truth. It is implicit, if
not explicit, in the proviso that the person must understand
what it
means to speak the truth…..
The practice followed in
the courts is for the judicial officer to question the child in order
to determine whether the child understands
what it means to speak the
truth. As pointed out above, some of these questions are very
theoretical and seek to determine
the child understands of the
abstract concepts of truth and falsehood
The reason for the
evidence to be given under oath or affirmation or for a person to be
admonished to speak the truth is to ensure
that the evidence given is
reliable. Knowledge that a child knows and understands what it
means to tell the truth gives the
assurance that the evidence can be
relied upon. It is in fact a precondition for admonishing a
child to tell the truth that
the child can comprehend what it means
to tell the truth. The evidence of a child who does not
understand what it means to
tell the truth is not reliable. It
would undermine the accused’s right to a fair trial were such
evidence to be admitted.
To my mind, it does not amount to a
violation of s 28(2) to exclude the evidence of such a child.
The risk of a conviction
based on unreliable evidence is too great to
permit a child who does not understand what it means to speak the
truth to testify.
This would indeed have serious consequences
for the administration of justice.’ In this matter before
the complainant
could testify the Regional Court Magistrate asked the
questions which I have referred to above
.’
[21]
If one carefully considers the questions which are referred to above,
in particular those
posed to the complainant before she testified,
although the regional court magistrate did not first make a finding
that the complainant
understood the nature and import of the oath or
affirmation, she was satisfied that the witness appreciated the duty
to speak the
truth and that she had sufficient intelligence and could
communicate effectively. She was therefore entitled to
administer
an oath which appears to have been duly done by the
interpreter. At every stage, after each adjournment, the
witness was
reminded that she was still under oath, to tell the
truth.
[22]
Before the commencement of the proceedings on 5 December 2019, the
regional magistrate
once again adverted to the issue of the
competency of the witness, to tell the truth. She stated that
she was satisfied that
the witness could distinguish the difference
between the truth and a lie. Accordingly, she admonished the
complainant in
terms of s 164(1) of the CPA to speak the truth.
[23]
Although the regional magistrate appeared to have conflated the
administering of an oath
in terms of section 163 and the admonishment
in terms of section 164(1), it appears that she was satisfied that
the witness was
able to distinguish between the truth and falsehood.
This she repeats in her judgment when she indicates that the
complainant
testified that she was fifteen (15) years old and
understood what it means to take an oath.
[24]
Moreover, if one considers the general tenor of the complainant’s
evidence when she
testified in chief and under cross-examination,
there is no doubt that the complainant appreciated the duty of
speaking the truth,
had sufficient intelligence and could communicate
effectively. In my view the regional magistrate exercised her
discretion
properly by swearing in the complainant instead of
admonishing her. The record amply demonstrates that the
complainant understood
what it meant to speak the truth and as such
there was no misdirection by the court
a quo
in accepting her
evidence.
[25]
Ms Dyantyi’s reliance on the case of
Mekka
was not
helpful to her case. In
Mekka
the Supreme Court of
Appeal refers to its previous decision in
S v B
2003
(1) SA 552
(SCA) para 15
where the following was stated:
‘
The finding by the
Court
a quo
that the fact that a finding was required
necessarily implied than an investigation had to precede the finding
was too narrow an
interpretation of the section. The section
did not expressly require that an investigation be held and an
investigation was
not required in all circumstances in order to make
such a finding. For example, it could happen that when an
attempt is made
to administer the oath or to obtain the affirmation
it came to light that the person involved did not understand the
nature and
import of the oath or the affirmation. The mere
youthfulness of a child could justify such a finding. Nothing
was required
more than that the presiding judicial officer had to
form an opinion that the witness did not understand the nature and
import
of the oath or the affirmation due to ignorance arising from
youth, defective education or other cause. Although preferred,
a formally noted finding was not required.’
[26]
Now turning to the question of whether the state has established its
case beyond reasonable
doubt the starting point would be to consider
the facts which are common cause between the appellant and the
respondent which are
the following:
26.1 The
complainant and the appellant were known to each other. They
both resided at NU 5A in Mdantsane.
26.2 While the
complainant was standing in the street together with two of her
companions, the appellant emerged, driving
a motor vehicle.
26.3 The appellant
then stopped his motor vehicle and requested the complainant to
accompany him to the Highway taxi rank.
26.4 The
complainant boarded the motor vehicle.
26.5 The appellant
drove the motor vehicle to the Highway taxi rank. At the Highway taxi
rank, he dropped off a person.
He thereafter drove to the taxi
rank at NU 6 where he dropped off another person.
26.6 He then drove
to the shack which belonged to Phumlani Ncuncwa (‘Phumlani’).
26.7 The appellant
and the complainant entered the shack.
26.8 Phumlani then
went out and locked the appellant and the complainant from outside.
26.9 The appellant
and the complainant then had sexual intercourse.
[27]
The following are the issues which are in dispute between the
appellant and the respondent:
27.1 whether they
had consensual sex.
27.2 whether the
complainant was dragged into and from Phumlani’s shack.
[28]
It is trite law that a court of appeal will not lightly interfere
with findings of fact
by the trial court unless the presiding officer
had misdirected himself or herself. In my view, there has not been
any misdirection
whatsoever on the part of the learned regional
magistrate. She has correctly evaluated the evidence and her
conclusions are based
on solid reasoning.
[29]
The Appellant’s attempt to assail his conviction on the basis
that the magistrate
has failed to approach the complainant’s
evidence with caution is not borne out by judgment. The learned
regional magistrate
adverted in her judgment to the effect that ‘the
Court should be aware of the dangers of accepting the evidence of a
child
because of potential unreliability and untrustworthiness. As
the result of lack of judgment, immaturity, inexperience,
suggestibility
to influence, and the capacity of the child to
convince himself of the truth of the statement it may not be true –
or entirely
true. A court will articulate a meaning of caution
in general and the reference for a particular case. A court
will
examine the evidence in order to satisfy itself that the
evidence given by the witness is clear and substantially satisfactory
in all material respects.’
[30]
In addition, the learned regional court magistrate went on not only
to caution herself
because the complainant was a child witness, but
also because she was a single witness. Consequently, the
appellant’s
complaint that the complainant’s evidence had
not been treated with caution is not justified.
[31]
It is contended on behalf of the appellant that the mere fact that
the complainant left
her two companions and boarded the appellant’s
motor vehicle is consistent with the conduct of a person who was in
all probability
in a love relationship with the appellant. This
contention is not sustainable. It is common cause that the
appellant
was a family friend. He was often asked to do errands
on behalf of the complainant’s mother.
[32]
What stands out as an anomaly in the appellant’s evidence and
that of his witness
is the reason they proffered as to why the door
to the shack was locked from the outside. As much as the
appellant and his
witness, Phumlani, proffered the reason and
motivation for this as the desire to ensure that Phumlani’s
mother would not
think that he was inside the shack. In my view this
explanation is nonsensical. There would not have been any reason for
him to
lock the shack from outside if indeed the appellant and
complainant were voluntarily engaging in consensual sexual
intercourse.
Clearly, the reason could only have been to ensure that
the complainant would not be able to escape. As if this was not
enough,
the appellant’s and Phumlani’s evidence differed
diametrically in that the appellant testified that when Phumlani
returned
to the shack he found him sleeping and he spoke to the
complainant. Phumlani on the other hand testified when he
returned
to the shack he spoke to the appellant and the appellant
said that he must return at 19:00. It is unnecessary for me to
refer
to the numerous other material contradictions between the
appellant’s and Phumlani’s evidence. Those are explicitly
set out by the learned regional court magistrate in her judgment.
[33]
In addition, the complainant’s version is corroborated in
material respects by the
common cause medical evidence. The injuries
described in that report clearly support the conclusion that there
was forceful penetration
and are irreconcilable with his assertion
that they had consensual sexual intercourse.
[34]
Furthermore, the appellant’s contention that he was unaware of
the complainant’s
age is also demonstrably contrived and false.
It was common cause that they grew up together and knew each other
very well. As
mentioned, he was virtually a family friend and they
attended the same school. It was consequently preposterous for him to
claim
that he did not know that she was only 14 years old at the
time.
[35]
I am therefore of the view that the magistrate correctly rejected the
appellant’s
version as improbable, contrived and patently
false. Her conclusion that the state had proved the appellant’s
guilt beyond
a reasonable doubt can therefore not be faulted. The
appeal must consequently fail.
[36]
In the result the following order issues:
1.
The appeal is dismissed.
M. M. CHITHI
ACTING JUDGE OF THE
HIGH COURT
I
concur.
J. E. SMITH
JUDGE OF THE HIGH
COURT
APPEARANCES:
Counsel for the
Appellant :
Ms. N. Dyantyi
Instructed
by
: Legal Aid, South
Africa
King Williamstown Justice
Centre
2
nd
Floor, Old
Mutual Building
Cnr Carthcart and Maclean
Street
King Williamstown
REF.: N. Dyantyi
Counsel
for Respondent :
Ms. V. Jodwana - Blayi
Office of the Director:
Public Prosecutions, Eastern Cape
5 Tourism House
Palo Avenue
Bhisho
[1]
32 of 2007
[2]
51 of 1977
[3]
Act 105 of 1997
[4]
38 of 2005
[5]
2003(2)
SACR 1 (SCA) para 12.
[6]
P
J Schwikkard and S E van der Merwe Principles of Evidence 4ed (2016)
at 451.
[7]
2012 (1) SACR 380
(KZP) para 11.
[8]
2009 (2) SACR 130
(CC) para 164 - 166