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[2022] ZAECBHC 44
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S.J v S (CA&R 26/21) [2022] ZAECBHC 44; 2023 (1) SACR 380 (ECB) (6 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
FLYNOTES:
SEXUAL OFFENCES AND DELAY IN REPORTING
Criminal
– Evidence – Sexual offences – Inquiry whether
child understands the oath and the difference between
truth and
falsehood – Effect of delay in reporting offences –
Previous consistent statements – Inconsistencies
and
improbabilities in complainant’s account – Trial court
failing to consider accused’s version –
Criminal Law
(Sexual Offences and Related Matters) Amendment Act 32 of 2007
,
ss
58
and
59
.
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, BHISHO
REPORTABLE
Appeal
Case No: CA&R 26/21
In
the matter between:
S[....]
J[....]
Appellant
and
THE
STATE
Respondent
APPEAL
JUDGMENT
STRETCH
J.:
[1]
On 18 October 2018 the appellant was convicted in the Zwelitsha
regional
court on five counts of rape committed on diverse occasions
during the period 2013 to 2016. He was sentenced to life imprisonment
on each of the first four counts, and to 15 years’ imprisonment
on the last count. The complainant is his natural daughter,
who was
18 years old in 2013, and 23 when the appellant was convicted. The
appeal is in respect of the convictions and the sentences
imposed.
[2]
The grounds of appeal against the convictions are that: (a) The court
below erred in finding that the prosecution had proved, beyond a
reasonable doubt, that the appellant had raped the complainant
on
diverse occasions; (b) The complainant, being a single witness, was
not honest and reliable and contradicted herself; (c) The
court erred
in finding that the complainant’s evidence was corroborated by
her sister, L[....]; (d) The court erred in not
drawing an adverse
inference from the complainant’s and L[....]’s delay in
reporting the rapes.
[3]
The complainant testified that she and her siblings were living with
the
appellant during the period 2013 to 2016. Sometime during 2013,
while her stepmother was working nightshift, she was awoken from
her
sleep. The appellant was busy undressing her. He raped her vaginally
with his penis. She cried but he placed his hand over
her mouth,
threatening to assault her if she continued. She did not tell anyone
as she was afraid of the appellant. He did this
on more than five
occasions during 2013.
[4]
She testified that during the middle of 2014, after the appellant and
her stepmother had separated, the appellant called her to his bedroom
to watch television and again raped her vaginally with his
penis. She
said that at some stage her paternal aunt, Thembisa, enquired from
the appellant whether he was having sexual intercourse
with the
complainant. He denied the allegation. He promised the complainant
that if she corroborated his version, he would not
rape her again.
She complied. She forgave him and trusted his undertaking. Thereafter
the appellant refrained from raping her for
some time, until 2015,
when he began to abuse her once more.
[5]
She testified that during 2015 he raped her over weekends and did so
more
than ten times. Towards the end of the year he stopped and
apologised, saying that he did not know what possessed him to do
these
things.
[6]
During 2016 her half-sister L[....] came to visit. The appellant
invited
L[....] and the complainant to sleep with him in his room. He
waited until they were asleep, whereafter he proceeded to rape the
complainant vaginally with his penis. She said that he repeated this
act more than five times during 2016.
[7]
She went on
to say that during July 2016 she and the appellant had quarrelled,
but he did not sexually assault her during that month.
After the
quarrel she sent a message to Thembisa confirming that the appellant
had been raping her. Thembisa promised to fetch
her but failed to do
so, so she reported the rapes to her maternal aunt, Agnes Mbembe.
[1]
Agnes arranged for the police to interview the complainant, and for
her to be medically examined.
[8]
During cross-examination the complainant confirmed that she deposed
to
two affidavits in 2016. She said that she read the statements
herself and that she was satisfied with their contents. When it was
put to her that she had stated in her affidavits that the appellant
also raped her on Saturday, 23 July 2016, she said that she
was
mistaken when she omitted this in her evidence in chief.
[9]
The medico-legal examination report reflects that Dr Madikane
examined
the complainant at Grey Hospital in King Williams Town at
21h30 on 25 July 2016. The report reflects the following:
‘
Allegedly
sexually assaulted. No visible bruises. The assailant allegedly used
a condom whilst sexually assaulting the victim …
History of
sexual assault. Condom used during the incident. Victim has washed
and changed clothing since the incident.’
It
appears further from the report that the complainant was sexually
active and that her hymen was perforated.
[10]
The complainant’s half-sister L[....] testified that when she
visited the home where
the complainant and the appellant were living,
he indeed invited them to sleep in the bed with him. She said that
she would pretend
to be sleeping, but was able to see the appellant
raping the complainant, and that she could hear the complainant
asking him to
stop. She also heard the appellant threatening to
assault the complainant.
[11]
Agnes, the complainant’s maternal aunt, testified that on a
Sunday in July 2016 she
received a cell phone text message from the
complainant which read as follows:
‘
Mama
come and rescue me. Father is sleeping with me forcefully, and
tomorrow he is taking me by force to Grahamstown. Come urgently.’
[12]
Agnes testified that she saved the message and showed it to the
police. She also sent a
message to the complainant encouraging her to
accompany the appellant to Grahamstown, as she was arranging for
someone there to
attend to the complainant. It was only after the
complainant had been medically examined that she told Agnes that the
appellant
had been raping her since 2013. She also told Agnes that
L[....] had confirmed that she had seen the appellant raping the
complainant.
[13]
The appellant testified in his defence. He denied ever having raped
the complainant. He
denied that he had had the opportunity to do so
during the period in question, particularly during 2015 and 2016,
because his girlfriends
were always around. He was of the view that
the entire story had been concocted by Agnes and his estranged
spouse, and that they
had coached the complainant and L[....] to
falsely implicate him.
[14]
An analysis
of the evidence, is captured in less than two pages of the trial
court’
s 15
-page judgment. There is no reference to the
applicable law. The essential portion of the judgment reads as
follows:
[2]
‘
The
big question is, did this happen or did it not happen? I have taken
this summary so that I can put the picture as I find it
before me,
and the accused says “look, just cut the picture in front of
you. These people have been coached by Agnes and
Nomvuyisi
[3]
to make these allegations against me.”
And
there is no further basis as to what was promised to them and how
they were coached by two people. And Agnes is not staying
with them
but either in Illitha or Ndevana, and Nomvuyisi has since left the
house.
This
runs back from 2013 to 2017, 2016, and is accounted for on each
occasion it happens. And there are discrepancies here and there,
but
these discrepancies did not distort the picture before the Court. One
such discrepancy for instance, is the evidence of the
complainant who
says in court she was not raped in July 2016 (on the 23 July 2016,
that is on the day of the quarrel). But when
she reports this to the
police, she says later after the quarrel she was called from the
room. She refused. Called by the accused
of course, who ended up
raping her that night. And when she reports to Agnes on the 27
th
she goes on and includes the incident of that weekend.
I
can find no reason to agree with the defence that she is not telling
the truth, but she is being put to this by other people.
I am
satisfied with her demeanour here in court. I am satisfied with her
memory and how she remembered the incidents. I accept
that she did
not have a diary. She was not referring to any diary. She was not
diarising these incidents, and that her memory as
she shared it with
us did not mislead the Court.
I
confirm that she is to some extent, and for those instances where
L[....] was there, corroborated by her. I find that her statement
to
the police, except for a few
material
(emphasis added) things
that were pointed out by the defence, are consistent with her
evidence given in this court. And her first
report to Agnes is
consistent with what she had given to this Court. Further, her
communication, SMS communication to Agnes are
also consistent with
what she had given in court.
[I
find] that the evidence given by Agnes as to how she interacted with
people resulting in her rescue from Grahamstown, is material,
realistic, and shows that this was indeed happening. I can find
nothing fanciful or funny with that – as argued by the defence.
All
said, [this] Court rejects the evidence of the accused insofar as he
denies this. In the circumstances the Court finds that
the State has
proved its case against the accused.’
Motive
to falsely implicate
[15]
Immediately
after having summarised the evidence, the trial court criticised the
appellant for firstly, not having been able to
produce a motive on
the part of Agnes and Nomvuyisi for coaching the appellant and
L[....] to falsely implicate him; secondly,
for not having been able
say what the nature of the promises were that were made to these
children; and thirdly, for not having
been in a position to describe
how, when and where they were coached. In my view this type of
criticism amounts to a serious misdirection
and a compromise of the
appellant’s fair trial rights to be presumed innocent, to
remain silent, and not to testify during
the proceedings, as
envisaged in s 35(3)(h) of the Constitution. This approach was
particularly criticised in
Van
der Watt v S,
[4]
where
the appeal court rejected the fact that it had been held against the
appellant that he had, when asked what possible motive
the
complainant may have had for falsely implicating him, proffered a
reason that turned out to have been unfounded. If an accused
is asked
to speculate, and not to testify on a matter of fact, he cannot be
blamed if it turns out that his speculation is found
to have been
wanting.
[5]
[16]
During his evidence in chief, the appellant recorded that the
complainant’s mother
died when the complainant was three months
old. An arrangement had been made that the complainant would stay
with Agnes until she
was three years old. When she turned three or
four, the appellant (who had by then remarried), tried to honour the
arrangement,
but Agnes refused to forfeit primary care of the
complainant. The police intervened, and he finally managed to take
the complainant
into his care. He testified that since this incident,
there had been bad blood between him and Agnes. He added the
following:
‘
These
allegations that are made against [me] are allegations that are not
for the first time. By putting my name into disrepute
from the
maternal aunt, or Agnes, they emanate from the fact that I was
requesting for my child to bring up the child myself, as
I was doing
that to my elder child. So I also wanted to maintain her.’
[17]
During cross-examination, the appellant testified that these false
allegations surfaced
again after he and the complainant had
quarrelled in 2016, when he had reprimanded her for having had
multiple boyfriends and for
not having taken her epileptic medication
properly. When he was asked why the complainant and L[....] would
have falsely implicate
him he replied:
‘
I
am still of the mind that they got influenced from Agnes [Ntende] and
my wife … it is manipulation coming from Agnes and
my wife. I
am still saying so … I am coming far with the two families. It
is not the first time these things happened as
I had indicated
yesterday … I am adamant what I say … They will gain
because they are humiliating and bringing my
name into disrepute and
they have destroyed my … (inaudible).’
[18]
The appellant was invited to think of a reason why the complainant
would have implicated
him falsely. He did so. In having done so, he
could not have been faulted for not having been able to say how
witnesses who were
hostile to him had been coached and what they had
been promised in return for their false testimony. There is no onus
or evidentiary
burden on an accused person to prove his innocence, or
to explain in detail why he suspects that he is being implicated
falsely.
The
evidence of L[....] J[....]
[19]
As I have said, L[....] is the complainant’s younger
half-sister. She testified to
having been an eye-witness to at least
one of the incidences of rape. She was 15 years old when she
testified. After she had informed
the trial court of her age and that
she was in grade nine, the transcript of the proceedings reads as
follows:
‘
Court:
I want
to encourage and warn you to stick to speaking the truth
today. Do
you understand?
Miss
J[....]: Yes.
Court:
Whatever you say, it must be something you have personal
knowledge
of, not something [that] anybody else told you.
Miss
J[....]: Yes.
Court:
Alright, the witness is admonished to speak the truth.’
[20]
The relevant sections of the
Criminal Procedure Act 51 of 1977
read
as follows:
‘
162
Witness to be examined under oath
(1)
Subject to the provisions of
sections 163
and
164
, no person shall be
examined as a witness in criminal proceedings unless he is under oath
…
164
When unsworn or unaffirmed evidence admissible
(1)
Any person, who is found not to understand the nature and import of
the oath or affirmation,
may be admitted to give evidence in criminal
proceedings without taking the oath or making the affirmation:
Provided that such
person shall, in lieu of the oath or affirmation,
be admonished by the presiding judge or judicial officer to speak the
truth.
…’
[21]
In
S
v V
[6]
it was
held that the court must inquire and satisfy itself whether a child
understands the oath and understands what it means to
speak the
truth.
[7]
If a child does not
understand what it means to speak the truth, then it would be
pointless to admonish the child under
s 164.
A witness who does not
understand the difference between the truth and falsehood is not
competent to testify, and any evidence
which that witness may have
been permitted to give is inadmissible against an accused person. It
is that simple.
[22]
It is of
vital importance for a trial court to hold an inquiry in this regard
and to clearly identify what it is investigating –
whether it
is the ability to distinguish between the truth and lies (which goes
to whether the witness is competent to testify),
or whether it is to
establish the witnesses’ ability (in this case a child) to
understand the nature and the import of the
oath or affirmation
(which goes to whether the witness should, instead of taking the
oath, be admonished to speak the truth in
terms of
s 164(1)).
Simply
stated, a witness, irrespective of age, must be sworn if the court is
of the opinion that the witness understands the nature
and the
religious sanction of the oath. It is only when a witness does not
understand what it means to take an oath, but it is
clear that the
witness understands the difference between right and wrong, and the
difference between speaking the truth and telling
lies, that the
witness falling into the latter category should be admonished instead
of the oath being administered to him/her.
[8]
[23]
In
S
v Matshivha,
[9]
Zondi
AJA examined the type of questions which the trial court had put to
the child witnesses and concluded that it was not clear,
from these
questions, whether the purpose was to establish competence or ability
to understand the oath. Zondi AJA accordingly
found that the trial
court had failed to comply with its duties under
ss 162
and
164
. In
the premises, and since the thrust of the Constitutional Court’s
judgment in
Director
of Public Prosecutions, Transvaal v Minister of Justice &
Constitutional Development & others,
[10]
was
that reliability was the crucial question, the court was constrained
to conclude that no reliance could be placed on the evidence
of the
children who testified. Zondi AJA explained the step-by-step
procedure as follows:
‘
Section
164(1)
is resorted to when a court is dealing with the admission of
evidence of a witness who, from ignorance arising from youth,
defective
education or other cause, is found not to understand the
nature and import of the oath or the affirmation. Such a witness
must,
instead of being sworn in or affirmed, be admonished by the
judicial officer to speak the truth. It is clear from the reading of
s 164(1)
that for it to be triggered there
must
(emphasis
added) be a finding that the witness does not understand the nature
and import of the oath. The finding
must
(emphasis
added) be preceded by some form of enquiry by the judicial officer,
to establish whether the witness understands the nature
and import of
the oath. If the judicial officer should find after such an enquiry
that the witness does not possess the required
capacity to understand
the nature and import of the oath, he or she should establish whether
the witness can distinguish between
truth and lies, and if the
enquiry yields a positive outcome, admonish the witness to speak the
truth.’
[11]
[24]
The wording
of
s 164(1)
is peremptory.
[12]
As I have said, the Constitutional Court made it plain in
DPP,
Transvaal
(above),
that:
‘
The
reason for evidence to be given under oath or affirmation or for a
person to be admonished to speak the truth is to ensure that
the
evidence given is reliable. Knowledge that a child knows and
understands what it means to tell the truth gives the assurance
that
the evidence can be relied upon. It is in fact a
precondition
(my
emphasis) 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 know 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 know what it means to speak the
truth to testify. This would indeed have serious consequences for the
administration of
justice.’
[13]
[25]
I venture
to add that by the same token, particularly when one is dealing with
an older child such as L[....], thorough questioning
should also be
aimed at determining whether the oath should be administered. If the
court is persuaded that the oath should be
administered, it must do
so, and not merely admonish the child witness. These views were
endorsed in
S
v SM
[14]
where Dambuza JA (at
[19]) said the following:
‘
An
inquiry into whether a potential witness can distinguish between
truth and falsity goes to whether the witness is competent in
the
first place. On the other hand, a question directed to a witness on
whether he or she understands the nature and import of
the oath and
affirmation goes to whether the witness should be caused to take the
oath or affirmation, or should be admonished
to speak the truth in
terms of
s 164(1).
’
[26]
In
Haarhoff
& another v Director of Public Prosecutions, Eastern Cape,
[15]
the court pointed out that competence was a question to be determined
by the trial court at the outset, and that the inquiries
under
ss 162
and
164
should be engaged only once the witness is found competent to
testify. Courts tend to either lack an appreciation of the
two-pronged
inquiry into competence on the one hand, and the ability
to take the oath/affirmation on the other, or they are inclined to
conflate
the inquiries in a way that makes it difficult to evaluate
whether both have been addressed adequately.
[27]
In the
matter before us, the trial court embarked on neither of these
inquiries. It did not inquire whether L[....] understood the
difference between truth and falsehood. Nor did it inquire whether
she understood what it meant to take the oath before admonishing
her.
In principle I have no particular reservations about what the
magistrate said to her as captured in paragraph [19] of this
judgment. I say so because, as was stated by Malusi J in
S
v Mali,
[16]
‘admonish’
by virtue of the dictionary definition of the word, means to
‘reprimand firmly; urgently urge or warn’.
It seems that
this was done in the matter before us. The fatal issue is that it was
not preceded by the two-pronged inquiry which
I have referred to.
Simply put, this court does not know whether L[....], on the one
hand, was able to take the oath in terms of
the peremptory provision
contained in
section 162(1)
, or whether, on the other hand, she did
not understand the difference between the truth and lies, which, if
it were the case, would
have rendered any warning to speak the truth,
a nullity.
[28]
This does not mean that this type of essential inquiry needs to be
conducted in an overly
technical manner. As explained by the authors
Banoobhai & Whitear-Nel
2013
Obiter
359
at 364, the trial
court should explore what it is to tell a lie. It should explore
whether the witness understands what it means
to deliberately deceive
another by ‘providing inaccurate, incomplete or otherwise
misleading information.’ The authors
point to international
literature which suggests the use of simple identification questions
that reduce the use of language in
assessing the understanding of the
concept of truthfulness, as having been found to be most effective.
By way of example, a simple
scenario may be put to the witness, who
is then asked to identify who is lying and who is telling the truth.
The authors further
point out that the fact that no standard test is
used in South African courts leads to inconsistencies and exacerbates
the danger
that haphazard questions with no tested reliability and
validity are used. I am inclined to agree with this criticism. It is
imperative
for the court to establish at the outset, whether all
prospective witnesses (irrespective of age, maturity or mental
wellbeing)
present with a proper understanding of the
consequences
of testifying truthfully or not. If this does not happen, the
witness has not been properly admonished.
[29]
The fact
that L[....] testified that she was 15 years old, which would have
placed her in the category of an older child, is not
in itself a test
of her level of intelligence and knowledge. The fact that no inquiry
was held at all, is, to my mind, a fatal
misdirection which renders
L[....]’s evidence inadmissible.
[17]
The
complainant as a single witness
[30]
Section 208
of the
Criminal Procedure Act provides
that an accused may be
convicted of any offence on the single evidence of any competent
witness. As Schreiner JA held in
R
v Nhlapo,
[18]
this
does not mean that an appeal must succeed if any criticism, however
slender, of the evidence is well-founded.
[19]
At the end of the day the court must satisfy itself that the evidence
is truthful and accurate. To put it differently, the court
must be
satisfied that the evidence as a whole is sufficiently honest and
reliable to pass muster as proof beyond a reasonable
doubt.
[31]
Acceptance of L[....]’s evidence as inadmissible, renders the
complainant a single
witness on whether she was raped at all, and if
so, by whom. As the magistrate said in his judgment:
‘
The
big question is, did this happen or did it not happen?’
[32]
In exploring this issue, the magistrate found as a fact that the
complainant had accounted
for each and every time she was raped
between 2013 and 2016. This is not correct. The accounting produced
by the complainant was
sparse, erratic, inconsistent and
contradictory. This the trial court appeared to have recognised when
it referred to the ‘discrepancies’
in her own narration
of events, particularly in that she had specifically mentioned in
both her police statements (but denied this
in court), that the
appellant had last raped her on Saturday, 23 July 2016, almost
immediately after a heated argument and immediately
before she
reported the argument and this particular rape, first to her paternal
aunt (Thembisa), and later to her maternal aunt
(Agnes), which
resulted in the appellant’s arrest. It was only when she was
confronted in the court
a quo
with the detail as to the time
and the place of this final rape, that she elected to include it in
her narration of events.
[33]
The trial court found that discrepancies such as this one ‘did
not distort the picture
before the court’. In my view, if it
did not, it should have. It was after all, on the complainant’s
version, at least
half of the straw that broke the proverbial camel’s
back – the other half being that the appellant was about to
take
her to Grahamstown against her will.
[34]
Indeed, the trial court, having concluded that her statements to the
police were consistent
with the evidence in court (which they were
not by any stretch of the imagination), nevertheless added in its
judgment that the
defence had pointed out ‘a few material’
inconsistencies between that reflected in her statements and what she
had
said in court. To my mind, once inconsistencies in the evidence
of a single witness are described as ‘material’, they
should be adequately addressed. This did not happen at all in the
trial court. The failure to address material inconsistencies
contained within the body of the evidence of a witness (particularly
a single one), to my mind is a material misdirection. Had
this
exercise been performed properly with respect to the complainant’s
evidence, the trial court, in my view, would have
been constrained to
find that her evidence was not honest and reliable. This is not the
end of the matter.
The
delayed first report
[35]
On the complainant’s version, she did not report this repeated
sexual abuse by her
father, for a period of some three years, for two
primary reasons. Firstly, because she was afraid of him, and
secondly, because
he had undertaken, from time to time, to stop, and
she had believed him. Yet, according to Agnes, either on Sunday, 24
July, or
on Tuesday, 26 July 2016, the complainant sent a message to
her from the complainant’s own cellular phone, complaining,
quite
out of the blue, that the appellant was forcing her to
accompany him to Grahamstown, and that coincidentally, he had also
raped
her on the Friday and the Saturday, ie on 22 and 23 July.
According to Agnes, when she showed the message to the police, they
seemed
surprised that the complainant had not mentioned this to her
step-mother (Nomvuyisi) who happened to have been working at the same
police station, and with whom the complainant had had a good
relationship.
[36]
Agnes testified that the complainant had remained with her after she
had been medically
examined, and it was only a couple of nights later
that she mentioned for the first time that the appellant had started
raping
her as far back as 2013, and that L[....] had been aware of
this. Agnes added that the complainant also showed her injuries (not
mentioned by the complainant at all in her evidence) which she had
apparently sustained when the appellant had assaulted her with
a
sjambok that same weekend in July 2016.
[37]
According to the complainant there had been a quarrel about a broken
window and about money
between her and the appellant on Saturday, 23
July, whereafter the appellant had confiscated her cellular phone and
had raped her
that same day. As a result, she had sent a cell phone
message to Thembisa on the appellant’s phone, wherein she had
reported
that the appellant had been ‘sleeping’ with her.
According to the complainant’s evidence Thembisa had responded,
saying that she would fetch the complainant. When she did not, the
complainant had sent the same message to Agnes, who ultimately
arrived with the police. The complainant was adamant in her evidence
that the appellant had not raped her during July 2016. She
also did
not mention that he had assaulted her with a sjambok, as testified to
by Agnes. During cross-examination she alleged that
the appellant had
raped her once on Saturday, 23 July 2016, but not on Sunday 24 July
2016, and also not on the Friday and the
Saturday, which was what had
been reflected in the complainant’s cell phone message to
Agnes.
[38]
Before
1998, our law took the view that the cautionary rule which applied to
accomplices, should be applied in much the same way
to the evidence
of a complainant in a sexual matter.
[20]
It was accepted however that such witnesses, unlike accomplices, were
not criminals, and as such, different considerations ought
to be
applied to their evidence. In an attempt to distinguish the rape
complainant from an accomplice, without throwing caution
to the wind,
the courts divided the inherent risks in the testimony of the former
into three basic categories:
(a)
The
presence of various motives that may induce a complainant to
substitute the real culprit with the accused.
[21]
According to Milne AJ in
R
v M,
[22]
charges
of immorality were ‘easy for woman to formulate but difficult
for man to refute’ and ‘[a]s a mode of obtaining
vengeance for any affront to a woman’s pride and dignity, the
bringing of a charge of this kind is probably without equal.’
(b)
The danger
that a frightened woman, especially if inclined to hysteria, might
imagine that certain things had happened to her, which
had not
happened at all.
[23]
(c)
The
deceptive facility such a witness, who had actually participated in
the sexual act with a person other than the accused (not
unlike the
accomplice) had for convincing testimony, by merely substituting the
actual participant with the accused.
[24]
[39]
Courts were
accordingly encouraged to seek some safeguard, such as corroboration,
which would reduce the risk of a wrong conviction.
This position
however, changed with the dawn of the constitutional era. The
majority view was that this cautionary rule had no
basis for its
existence other than to discriminate against women, who were in the
majority as far as complaints in respect of sexual
assaults were
concerned. After some deliberation, the rule was eventually abolished
by the SCA in
S
v Jackson.
[25]
It was
held that the rule, which had already been abolished in comparable
modern systems such as Namibia, Canada, Australia and
New Zealand,
was based on an irrational and out-dated perception which unjustly
stereotyped complainants in sexual cases (mainly
women) as
particularly unreliable, with the result that, although evidence in a
particular case might call for a cautionary approach,
there was no
warrant for the application of a blanket-type cautionary rule.
[26]
The matter has now, in any event, been taken further by the
legislature. Section 60 of the Criminal Law (Sexual Offences and
Related
Matters) Amendment Act 32 of 2007 (the Sexual Offences Act),
provides that notwithstanding any other law, a court may not treat
the evidence of a complainant in sexual offence matters with caution
on account of the nature of the offence. It is clear that
courts
should continue exercising their discretion, but that the treatment
of evidence with caution when the only reason to do
so is because it
involves a sexual offence, will no longer be tolerated. So too, the
failure by the complainant to raise the proverbial
hue and cry at the
first reasonable opportunity. Of relevance to the matter before us,
are two further sections of the Sexual Offences
Act which require
particular scrutiny as having codified departures from the
pre-constitutional era. They are ss 58 and 59, which
read as follows:
‘
58
Evidence of previous consistent statements
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
inference
only
(italics added) from the absence of such
previous consistent statement.
59
Evidence of delay in reporting
In
criminal proceedings involving the alleged commission of a sexual
offence, the court may not draw an inference
only
(italics
added) from the length of any delay between the alleged commission of
such offence and the reporting thereof.’
[40]
The failure
of a complainant to raise an alarm at the first reasonable
opportunity continued, between 1998 and 2007, to be a factor
that
could militate against the acceptance of the evidence.
[27]
But a delay was not necessarily fatal to the prosecution’s
case. In
S
v Cornick & another,
[28]
the SCA
upheld convictions where the complainant had laid charges 19 years
after the event. Not only had the delay been fully explained,
but the
complainant was also found to have been a credible witness. The
welcomed position presently, is that the failure of a complainant
to
report a rape as soon as possible cannot be the benchmark for
determining whether or not the complainant has been raped. Studies
have shown, and common sense dictates, that people differ in their
responses to traumatic events, and are inclined to display
individualised emotional responses to these, particularly when the
experience is an embarrassing and shameful one which involves
an
assault on the bodily integrity of the victim. A report of this
nature would ordinarily involve descriptions of private and
intimate
parts of the body. Some people are encouraged to be quite at ease
doing this. For others, it is simply taboo. Also, as
described by the
SCA in
Monageng
v S:
[29]
‘
Some
of the immediate effects are frozen fright or cognitive dissociation,
shock, numbness and disbelief. It is therefore not unusual
for a
victim to present a façade of normality.’
In
particular, children often – especially if they are abused by
family members – wait long …
‘…
for fear of retribution,
feelings of complicity, embarrassment, guilt, shame, and other social
and familial consequences of disclosure.’
[41]
It seems on
the face of it, that ss 58 and 59 place significant limits on the
inferential processes that may legitimately be conducted
by the
courts. Differently put, courts are no longer at liberty to draw
adverse inferences from either
only
the
failure of the complainant to make a consistent statement, or
only
the
length of the delay between the alleged commission of the offence and
the making of such a statement, commonly referred to as
‘the
first report’. The deliberate inclusion of the word ‘only’
in both these sections, to my mind, presupposes
that if there are any
other grounds for the drawing of an adverse inference or adverse
inferences, failure to report, or the making
of inconsistent reports,
or a delay in reporting, may, in a given set of circumstances, be
considered as a further ground or grounds
to justify the drawing of
adverse inferences. In other words, an additional trigger
(established by an inferential process best
left to the trial court)
may well be required to establish a basis for exploring issues such
as lack of previous consistent statements
or an inordinate delay in
making them - whether it is a feature of the complainant’s
testimony, or the circumstances in which
the act took place or was
ultimately disclosed, or the nature of the relationship between the
complainant and the accused, or discrepancies
within the evidence of
the complainant, or differences between the complainant’s
version and that of other witnesses.
[30]
[42]
As I have
already pointed out, there are a number of these triggers in the
matter before us. That being the case, it was incumbent
on the trial
court, at the very least to explore and evaluate the reasons why the
complainant allegedly reported the rapes when
she did, why there were
inconsistencies in her own version about what she reported, why the
first person she allegedly made this
delayed report to (being her
paternal aunt), was not called as a witness, and why her maternal
aunt’s version of what was
said to her does not gel with any of
the versions proffered by the complainant. The fact that the court
a
quo
in
these particular circumstances, found that the complainant was
nevertheless a ‘consistent witness’, is not particularly
helpful. Consistency, does not necessarily stem from honestly and
reliability. In any event, the finding that she was consistent,
is
simply not borne out by the evidence. On the contrary, as I have been
at pains to demonstrate, there are a host of inconsistencies
and
improbabilities in the complainant’s account only, which ought
to have led the trial court to have misgivings concerning
her
credibility and her reliability. In addition, the court ought to have
taken into account the inordinate delay in reporting
these allegedly
repeated rapes, followed by only reporting one or two recent rapes,
and then only in the peculiar context of her
unwillingness to
accompany the appellant to Grahamstown.
[31]
As stated by Jones J in
S
v Dyira:
[32]
‘
Is
it proper or possible, with any measure of certainty, simply to
explain away some 17 weeks of adamant refusal to give an account
of
what happened because of fear of reprisal, only to have that fear
disappear for no apparent reason?’
The
appellant’s version
[43]
The magistrate made no mention of the appellant’s version of
what had transpired
directly before the complainant decided to report
him. According to the appellant, there had indeed been an argument
between him
and the complainant, but not exactly along the lines
suggested by the complainant. The appellant’s explanation for
the quarrel
(which seems to have had a ring of truth about it), was
that at the time he enquired about the broken window (on the Saturday
morning),
he also noticed that all the complainant’s bags had
been packed. Quite coincidentally, while they were quarrelling about
this, Agnes phoned and said: ‘S[....], I request you to give me
the child’. Thereafter he noticed that the complainant
was
behaving strangely. She had not been taking her epilepsy medication
properly and had been refusing to accompany him to Grahamstown
for
proper medical treatment. According to the appellant’s
explanation, the complainant had also taken umbrage at the appellant
having reprimanded her ‘for having many boyfriends’.
[44]
In response to questions from the court, the appellant said
that in lieu of the call
from Agnes, and having seen the packed bags,
he suspected that the complainant had been planning to go to Agnes.
He also found
her explanation – that the packed bags only
contained dirty laundry – implausible.
[45]
To my mind, the court’s failure to have given any consideration
at all to the appellant’s
version, and whether it was
reasonably, possibly true in the circumstances, amounts to a further
misdirection. In all these circumstances,
I am satisfied that the
trial court erred in concluding that the prosecution had proved its
case beyond a reasonable doubt. The
appellant is accordingly entitled
to an acquittal on all the charges preferred against him.
ORDER:
(a)
The appeal against the convictions and the sentences imposed is
upheld.
(b)
The convictions and the sentences imposed are set aside.
(c)
The appellant is found not guilty and he is discharged.
(d)
The Bhisho registrar is directed to facilitate the appellant’s
immediate release from
prison.
I.T.
STRETCH
JUDGE
OF THE HIGH COURT
I
agree:
L.
RUSI
JUDGE
OF THE HIGH COURT
For
the appellant: H.J. Erasmus
Instructed
by:
Legal Aid South Africa
For
the respondent: C. Giyose
Instructed
by:
The Director of Public Prosecutions
Date
heard:
14 September 2022
Date
of further heads: 16 November 2022
Date
of judgment: 06 December 2022
[1]
The transcript reads ‘Agnes Ntende’ but it seems from
the magistrate’s long-hand notes and a reconstruction
of this
portion of the record, that the surname is Mbembe.
[2]
I have taken the liberty of correcting obvious spelling and
grammatical errors in the transcript of the judgment, particularly
in that it is not presented under cover of a transcriber’s
certificate.
[3]
The complainant’s maternal aunt and the appellant’s
estranged spouse.
[4]
[2010] 3 All SA 483
(SCA)
[5]
At [16]
[6]
1998 (2) SACR 651 (C)
[7]
See too
S
v Nedzamba
2013
(2) SACR 333 (SCA)
[8]
See
Principles
of Evidence:
P.
Schwikkard and S.Van der Merwe 4
th
ed, Juta 2015
[9]
2014 (1) SACR 29 (SCA)
[10]
2009 (2) SACR 130 (CC)
[11]
Matshivha
(above)
para [11]
[12]
See
S v
Ndaba
(unreported
KZP case no AR528/2017, 18 May 2018)
[13]
At para [12]
[14]
2018 (2) SACR 573 (SCA)
[15]
2019 (1) SACR 371
(SCA) at [17]
[16]
2017 (2) SACR 378
(ECG) at [16]
[17]
See
S v
Tshimbudzi
2013
(1) SACR 528
(SCA), a case described by Bosielo JA as a ‘regrettable
comedy of errors’, where no inquiry at all was held by the
trial court to satisfy itself that the child witness understood and
appreciated the distinction between the truth and a lie.
The failure
of the magistrate to embark on this inquiry was not addressed when
the appeal was argued before us. During the course
of preparing this
judgment, we afforded counsel the opportunity to do so by way of
written argument. Both counsel for the appellant
and the respondent
submitted (in the light of the relevant legislation and the
authorities), that Lisa’s evidence is inadmissible.
[18]
1953 (1) PH H11 (A)
[19]
At 17
[20]
R v W
1949
(3) SA 772 (A) 780
[21]
See
S v
Snyman
1968
(2) SA 582 (A) 585C
[22]
1947 (4) SA 489
(N) 493 and 494
[23]
R v
Rautenbach
1949
(1) SA 135
(A) 143
[24]
Snyman
above
585D
[25]
1998 (1) SACR 470 (A)
[26]
At 476
f
.
See also P.J. Schwikkard in Smythe & Pithey (eds)
Sexual
Offences Commentary: Act 32 of 2007
(2011)
at 23-8
[27]
See
S v
GS
2010
(2) SACR 467
(SCA) at [23]
[28]
2007 (2) SACR 115 (SCA)
[29]
[2009] 1 All SA 237
(SCA) at [23]
[30]
See Schwikkard above at 23-9
[31]
See for example, the similar facts in
S
v GS
2010
(2) SACR 467
(SCA)
[32]
2010 (1) SACR 78
(ECG)