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[2022] ZANCHC 55
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Mkhize v S (CA&R20/2022) [2022] ZANCHC 55 (4 October 2022)
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IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
No.: CA&R20/2022
Date
Heard: 13 June 2022
Date
Delivered: 4 October 2022
Reportable:
YES/NO
Circulate
to Judges: YES/NO
Circulate
to Regional Magistrates: YES/NO
Circulate
to Magistrate: YES/NO
In
the matter between:
SIPHO
MKHIZE
Appellant
and
THE
STATE
Respondent
Coram:
Tlaletsi JP
et
Nxumalo J
ORDER
1.
The appeal succeeds.
2.
The conviction of the appellant for
contravening section 3 of the Sexual Offences Act and the sentence of
life imprisonment are
set aside and replaced with the following:
“
The
accused is found not guilty for contravening Section 3 of the
Criminal Law (Sexual Offences and related matters) Amendment Act
32
of 2007.”
JUDGMENT
Tlaletsi
JP
[1]
The
appellant, was despite his plea of not guilty, convicted in the
Northern Cape Regional Court on one count of rape in contravention
of
Section 3 of the Criminal Law (sexual offences and related matters)
Amendment Act 32 of 2007 (Sexual Offences Act). He
was
subsequently sentenced to life imprisonment. Acting in terms of
section 276B of the Criminal Procedure Act
[1]
(the CPA), the trial court attached a condition that the appellant be
not considered or released on parole before serving at least
four
fifths (⁴⁄5) of his term of imprisonment. He was
legally represented throughout his trial.
[2]
The appellant erroneously applied for leave to
appeal against his conviction and sentence immediately after the
conclusion of the
sentencing proceedings. He was granted leave
to appeal against sentence only. He subsequently, on the advice
of Legal
Aid South Africa, filed a Notice of Appeal against both his
conviction and sentence. He did not require leave of the
Regional
Court to appeal against both his conviction and sentence.
The Notice of Appeal was accompanied by a condonation application.
The application was correctly not opposed by the respondent.
The application is meritorious and condonation was granted at
the
hearing of this appeal.
[3]
At
the heart of this appeal is the question whether the evidence
presented by the respondent was sufficient to sustain a charge
of
rape. Put differently, whether the state had proven beyond a
reasonable doubt that the appellant raped the complainant.
The
appellant’s conviction and the resultant sentence arise from
the following factual matrix. The complainant
who was 15 years
old at the time of the incident, testified when she was 17 years old.
The state successfully brought
an application in terms of
section 170A
[2]
of the CPA.
It was supported by a report of a probation officer who proposed that
the complainant testifies through an intermediary
so that she should
not be exposed to undue mental stress or suffering. Despite her
age, the complainant was admonished to
speak the truth in terms of
Section 164 of the CPA
[3]
as the
trial court was not satisfied that she understood the nature and
import of the oath or affirmation. The proceedings
were
conducted in camera.
[4]
The complainant testified that on 2 April 2019,
she was sent to the shop by one Boitumelo to buy her cigarettes.
Along the
way, she met an unknown male person. He offered
her a soft drink if she accompanied him to his shanty. She
refused
to accompany him. The man pulled her by her hand until
they both entered a nearby shanty. Inside the shanty, the man
prepared and smoked some drugs. When he finished smoking his
drugs, he threw her on the bed and undressed her ‘tights’
and panties. He took off his pants and inserted his penis into
her private part. He made some sexual movements.
The
complainant felt pain and screamed. The man stopped. She
left the shanty and went to a nearby toilet. Along
the way, she
met her friend, Ms TM. The latter asked her what was going on.
The complainant replied that nothing was
happening. As she was
passing some water, the complainant noticed what she called ‘sperms’
coming out of her
private part. After that, she left for home.
She bought some chips for other children with the R100 that the man
had
given her inside the shanty. He gave her the money before
he hurt her. He further gave her R5-00. Before she left
the shanty, the man did not say anything to her.
[5]
The complainant mentioned that she wanted to
report to her sister, M[....] what happened. She however did
not do so because
the man told her that he will kill her if she told
M[....]. The following day in the evening M[....] came to her
home, she
asked her what happened and she told her that she was
raped. M[....] then called the police and they all questioned
her about
what happened.
[6]
In cross-examination, the complainant testified
that she had never seen the man before the incident. She only
heard from the
street that his name is Sipho. Asked why she did
not report to Boitumelo about what happened to her, she replied that
she
does not know. Before the incident, she neither knew about
the shanty nor who owned it. She had never walked past that
shanty before. She does not know whether the toilet she went to
was part of the shanty she was in. She mentioned that
Ms TM
told her that she heard her scream loudly. She then told Ms TM
that she never screamed. She did not tell Ms TM
what happened
to her because she knew that the latter was going to tell M[....].
She did feel some pain when he penetrated
her vaginally.
However, by the time she went to buy chips, she was no longer feeling
the pain. The incident was her
first sexual encounter.
[7]
She was referred to Ms TM’s written
statement to the police that when she asked her why she was
screaming, she replied to
Ms TM that the man wanted to assault her.
She does not know why she did not tell her about the rape. The
police obtained
her statement through or with the assistance of
M[....]. She confirmed that the police took her to a doctor for
examination.
It was put to her that the appellant does not stay
at Riemvasmaak, but I[....]and that the shanty in Riemvasmaak belongs
to one
Khokhoza. She replied that the appellant is lying.
It was further put to her that on that day, the appellant was
assisting
in the taxi business of his aunt and was never at the
shanty; that he never had any contact with her and never raped her.
She confirmed that it was the first time that she saw the man on that
day, and that he raped her.
[8]
A report by the Medical Practitioner who
examined the complainant on 3 April 2019 was presented by the
appellant to be part of the
record. The report indicates that
no physical injuries were observed. Also on the gynaecological
examination, no injuries
were observed. The
posterior
rim of the hymen was not present. The forensic report also
indicates that no semen was detected on the exhibits presented
to the
Forensic Science Laboratory.
[9]
The second witness for the State was Ms TM, a
ten-year-old girl who also testified through an intermediary.
She was also admonished
in terms of section 164 of the CPA, to tell
the truth as the court was not satisfied that she understood the
nature and import
of the oath or affirmation. She testified
that she was playing with friends in the street next to one
Khokhoza’s shanty.
She heard a person scream “
ah
oo”
from the shanty.
Later the complainant came out of that shanty and proceeded to
a toilet. On her return, the
complainant asked her where Sipho
went to. Ms TM showed the complainant the direction Sipho had
taken. She knew
who Sipho was and that he stayed with
Khokhoza in the latter’s shanty. She did see Sipho at
Khokhoza’s shanty
that day. Sipho exited the shanty first
and was followed by the complainant. According to her, Sipho
did not leave
in a rush. He was walking normally. The
complainant closed the shanty door when she went out. The
complainant was just
fine when she came out of the shanty. The
two did not talk about anything else and the complainant left for
home.
[10]
Under cross-examination, she testified that the
complainant did not know Sipho’s name. She mentioned that
she did not
know who screamed inside the shanty. She was
playing tins with a friend Kgothatso. Upon hearing the scream
Kgothatso
put the tins away and went home to tell her mother that she
heard someone scream. Also, when Sipho came out and later the
complainant, she did not know who screamed. She did not enter
the shanty to see who else was inside. She mentioned
that she
also asked the complainant who was screaming and she replied that
Sipho wanted to hit her. It was put to her that
the complainant
never testified that she asked her where Sipho went to. She
replied that the complainant “
likes
lying”
, and she did ask her
where Sipho went to. She did not see Sipho and the complainant
enter the shanty. She insisted
that the person she saw was
Sipho and that he is lying when he says he was not at the shanty.
She mentioned that Sipho knows
that he had ‘
sex
with [the complainant
].’
She was asked to describe Sipho and she replied that she is unable to
describe him.
[11]
Ms M[....] M[....]2 (M[....]) is the
complainant’s eldest sister. She testified that the
complainant was born with a
down syndrome condition. She takes
medicine for epilepsy and for her mental condition. She is
someone who forgets and
cannot read or write. She is attending a
special school. They are not staying in the same house.
She was however seeing
her almost every day because she had to fetch
her child from her parental home when she returned from work.
[12]
One afternoon she received a report from
one Dede who told her about what Ms TM told her relating to the
complainant and Sipho.
She requested her to take her to the
shanty. She took her to the shanty in the vicinity.
M[....] called the name
“
Sipho”
several times
.
A male person came out of the shanty. She told the man that she
is looking for Sipho and she wanted to ask him what
was the
complainant doing in Sipho’s shanty. The man told her
that he is Khokhoza and that Sipho was not present.
She pointed
at the appellant in the dock as the person she spoke to. She
left and returned home. She decided to go
to her parental home
to interview the complainant about what she was told. As she
went out, she saw the appellant outside
her gate and he voluntarily
told her that he is in fact Sipho and not Khokhoza and that nothing
happened in the shanty. He
mentioned that he only sat with the
complainant and shared a “cold drink”. She ignored
him. She later met
him standing in front of a tuckshop.
He followed her and again voluntarily told her that he was with the
complainant in the
shanty and that nothing else happened between
them. She ignored him and proceeded to walk to where she was
going.
[13]
She found the complainant at home. She
asked the complainant what happened the previous day at Sipho’s
shanty.
The complainant asked her who Sipho was. She
replied that the “
the boetie
you were sitting with drinking cold drink in the shanty. What
happened?”
The
complainant started crying and replied that she does not know the
“
boetie’s name, but I can
show you who he is. And we were drinking cold drink. And
the “boetie” said
I must lay on the bed, on top of the
bed.”
She told her that
she refused to lie on the bed and the man took off her pants, and
inserted his private parts into hers.
M[....] calmed her down
and decided to call the police.
[14]
M[....] testified that the incident was
heart-breaking to her and the family. She had developed anger
at the appellant from
the time he told her that he is not Sipho.
The family feels that they failed the complainant by not protecting
her against
the rapist. They took the complainant through counselling
sessions from 2019 until sometime in 2020, four times in a month.
The appellant’s version that he never met her and spoke to her
as she alleged was put to her and she insisted that she met
him.
She mentioned that the appellant was untruthful when he said he did
not sexually assault the complainant.
[15]
Ms Cecilia Diratsagage, testified that the
complainant is her younger sister. She testified that she does
not know anything
about the incident. She was at home washing
some clothing. The complainant was present from the morning
with her.
Around 15:00 she went to the street to play. On
her return, she asked the complainant where she had been and she
replied
that she had been in the street. She was having a
packet of chips, biscuits, sweets, and a Tweeza soft drink. She
asked
her where she got the money to buy these items. She did
not answer. To her, she was just fine and looked okay.
[16]
The appellant’s defence was that of an
alibi
.
He testified that he had been residing at [....] R[....] at
I[....]since 1991, which is his parental home. He lives
there
with his two aunts and his two girl children. He is working for
his aunt who owns a taxi business. On 2 April
2019, the day of
the alleged incident, he started work at 08:00 and knocked off at
20:00. He does not know Khokhoza.
He was never at a
shanty in Riemvasmaak. He knows a friend who owns a shanty in
that area. However, he does not know
him to be Khokhoza.
He denied ever meeting the complainant, Ms TM or M[....]. He
denies raping the complainant.
The state witnesses could be
mistaking him for someone else.
[17]
Under cross-examination, the appellant
testified that members of a vigilante group met him and took him to a
house, in Riemvasmaak,
where M[....] was. They asked her if it
was him. She confirmed and he was taken to the police station
and was detained.
[18]
In its judgment on the merits, the trial court
moved from the premise that the following facts were common cause:
that the
complainant departed her residence and was accosted by a
person who took her to a shanty; that the complainant was penetrated;
that she screamed; that Ms TM and another were playing outside; that
Ms TM heard a scream; that Ms TM saw the complainant exit the
shanty;
that the complainant sustained no physical injuries; that the
gynaecological report indicated that there were no
injuries
observed, safe that the posterior of the hymen was absent; that
M[....] was informed about the incident and was accompanied
by a
‘vigilante group’ which pointed out the appellant.
[19]
Having made the said remarks, the trial court
held that the only issue in dispute was the identity of the
perpetrator. The
court reasoned that the incident happened in
daylight, the complainant had an opportunity to see the perpetrator
who lay on top
of her; she spoke to him as a result, she had an
opportunity to make an identification. The court held further
that Ms TM
was able to see the appellant, the person she previously
knew, exiting the shanty. Furthermore, the court remarked that
an
independent witness, M[....], was able to point out the appellant
to the vigilante group. The trial court was satisfied that the
identity of the appellant as the perpetrator had been proven beyond a
reasonable doubt and that the appellant’s version was
improbable and could not be reasonably possibly true. The
appellant was consequently found guilty of rape.
[20]
The appellant raised the following grounds of
appeal: that the trial court erred in finding that the
complainant and the two
witnesses for the respondent correctly
identified the appellant as being the perpetrator; the court erred in
attaching weight to
the dock identification made by M[....]; and the
court erred in accepting the hearsay evidence of M[....], regarding
the pointing
out. Finally, that the trial court erred in
rejecting the appellant’s version as not being reasonably
possibly true
and finding that the respondent had proven the
appellant’s guilt beyond a reasonable doubt.
[21]
It
is trite that the State bears the onus to prove the guilt of an
accused person beyond a reasonable doubt. There rests no
duty
on the accused to prove his/her innocence. In
S
v Van Der Meyden
[4]
the court held:
“
The
proper test is that an accused is bound to be convicted if the
evidence establishes his guilt beyond reasonable doubt, and the
logical corollary is that he must be acquitted if it is reasonably
possible that he might be innocent. The process of reasoning
which is
appropriate to the application of that test in any particular case
will depend on the nature of the evidence which the
court has before
it. What must be borne in mind, however, is that the conclusion which
is reached (whether it be to convict or
to acquit) must account for
all the evidence.
Some
of the evidence might be found to be false; some of it might be found
to be unreliable; and some of it might be found to be
only possibly
false or unreliable; but none of it may simply be ignored.”
[22]
As
regards the evaluation of evidence in a criminal trial, in
Chabalala
[5]
the Supreme Court of Appeal held:
“
The
correct approach is to weigh up all the elements which point towards
the guilt of the accused against all those which are indicative
of
his innocence, taking proper account of inherent strengths and
weaknesses, probabilities and improbabilities on both sides and,
having done so, to decide whether the balance weighs so heavily in
favour of the State as to exclude any reasonable doubt about
the
appellant's guilt. The result may prove that one scrap of evidence or
one defect in the case for either party (such as the
failure to call
a material witness concerning an identity parade) was decisive but
that can only be an ex post facto determination
and a trial court
(and counsel) should avoid the temptation to latch on to one
(apparently) obvious aspect without assessing it
in the context of
the full picture presented in evidence.”
[23]
In
Haarhoff
v DPP, EC
[6]
the court had the following to say about the proper approach to the
evidence of a child who is a witness and that of a single witness:
“
It
is settled law that evidence of a child must be approached with
caution. The same principle applies to the evidence of
a single
witness. The court has to satisfy itself that the evidence given by
the witness is clear and substantially satisfactory
in material
respects. The court is to look for features, in the evidence, which
bear the hallmarks of trustworthiness to substantially
reduce the
risk of wrong reliance upon the evidence of a single witness.”
[24]
This
Court should deal with the matter bearing in mind the powers of an
appellate court in the factual findings of a trial court
which were
spelt out in
R
v Dlhumayo
[7]
as follows:
“
The
trial judge has advantages which the appellate court cannot have in
seeing and hearing the witnesses and in being steeped in
the
atmosphere of the trial, not only has he had the opportunity to
observe their demeanour but also their appearance and the whole
personality. This should never be overlooked. Consequently, the
appellate court is very reluctant to upset the findings of the
trial
judge. There mere fact that the trial judge has not commented on the
demeanour of the witness can hardly ever place the appeal
court in as
good a position as he was. Even in drawing inferences, the trial
judge may be in a better position than the appellate
court, in that
he may be able to estimate what is probable or improbable in relation
to the particular people whom he has observed
at the trial”
“…
where
there has been no misdirection on fact by the trial judge, the
presumption is that his conclusion is correct, the appellate
court
will only reverse it where it is convinced that it is wrong. In such
a case, if the appellate court is merely left in doubt
as to the
correctness of the conclusion, then it will uphold it. There may be
misdirection on fact by the trial judge where the
reasons are either
in their face unsatisfactory or where the record shows them to be
such, there may be such misdirection also
where, though the reasons
as far as they go are satisfactory, he is shown to have overlooked
other facts or probabilities”.
[25]
The appellant pleaded not guilty to the charges
against him. He elected not to present any plea explanation.
He also
did not make any admissions. By this approach, he
called on the respondent to prove all the elements of the charge
against
him and to prove his guilt beyond a reasonable doubt.
The defence of an
alibi
which the appellant relied upon did not relieve the state of its duty
to prove the commission of the offence which the appellant
was
facing, and to disprove his
alibi
.
[26]
As pointed out, the trial court commenced by
stating that the only issue in dispute was the identity of the
‘perpetrator’
and that everything else was common cause.
It accepted the evidence presented by the state in the commission of
the offence
without conducting a proper analysis of the evidence that
was presented. For the reasons that will be apparent below,
this
approach by the trial court has its inherent difficulties.
There are in addition some unsatisfactory aspects relating to the
respondent’s case.
[27]
It is to be recalled that the only time the
complainant may have mentioned that she had been raped was the
following day when she
was confronted by M[....]. At that time,
M[....] had already received information from one Dede that Ms TM
told her that
she heard the complainant screaming from the shanty in
which she was with Sipho. The complainant had the opportunity
to report
to Ms TM who specifically asked her what had happened.
To show that the complainant had a presence of mind at the time, she
replied that nothing happened. She also did not report to
Boitumelo, who had sent her to the shop to buy cigarettes for her.
In fact, there is no evidence as to whether she ultimately bought
cigarettes and what happened to the money she was to buy the
said
cigarettes with. Furthermore, the complainant had an
opportunity to report to Cecilia who lived with her. To both
Ms
TM and Cecilia, the complainant appeared as if there was nothing
untoward that happened to her or bothering her.
[28]
The manner in which M[....] obtained
information from the complainant about the incident also raises some
questions. She confronted
the complainant with information and
leading questions as to what allegedly happened the previous day at
Sipho’s shanty.
It is then that the complainant mentioned
that she does not know the name of the person, but he asked her to
lay on the bed.
She refused and he undressed her and inserted
his penis in her vagina. It is not unreasonable to conclude
that had it not
been for M[....], there would not have been a charge
of rape and the prosecution thereof against the appellant. The
evidence
and conduct of the complainant can only point to the fact
that she was an unwilling complainant. She appeared to have
decided
to conceal the incident indefinitely. This is
also evident from her denial to Ms TM that she ever screamed in the
shanty.
[29]
The evidence of both the complainant and
M[....] must be contrasted with that of Ms TM, who testified that the
complainant asked
her where “
Sipho”
had gone to. She also testified that the complainant said to
her “
Sipho wanted to hit me.”
If indeed she did not know the
name Sipho before, she could not have mentioned his name. It is not
clear from the evidence
of Ms TM, what the complainant actually said
to her when she asked about the person. It is possible that Ms
TM concluded
that she must be referring to Sipho. In any case,
the complainant denied that she ever asked Ms TM about Sipho and
where
he went to. From the evidence of both witnesses, it is
difficult to discern what the true position is.
[30]
The other fundamental difficulty in the
respondent’s case is the identification of the perpetrator.
According to the
complainant, she was seeing the perpetrator for the
first time when she met him on the day. Although she referred
to the
perpetrator as Sipho in court, that is the name she got from
M[....]. At no stage did the prosecution request her to
describe
the perpetrator, or to point him out in court, to confirm
whether indeed the appellant is the person who raped her. The
evidence
does not suggest that she was present when the appellant was
arrested, to be able to say the person arrested and standing trial
is
the perpetrator.
[31]
Ms TM, who testified that she knew Sipho and
that he stayed with Khokhoza, was unable to describe him in her
evidence. She
was also not requested to make a dock
identification of the appellant. Had she at least done the dock
identification, and
pointed at the appellant, that would have given
the appellant the opportunity to challenge her identification
evidence. The
trial court concluded that the complainant and Ms
TM were referring to the appellant when they had in fact not
identified him as
the perpetrator. The fact that Ms TM was
unable to describe the appellant, was found by the trial court to be
a neutral factor
to be expected of any witness. This aspect was
not pursued to establish why the witness was unable to describe the
perpetrator.
Instead, the learned Magistrate reasoned that it
is difficult to describe a person as he could also not describe the
appellant
from where he was sitting. Furthermore, the
Magistrate mentioned that he owned a Jack Russel dog for 15 years and
if asked
to describe it, he won’t be able to do so other than
to mention that it is short and long-haired with white and brown
spots.
There is more than a million of such dogs in the world,
but he surely will be able to identify his. Nonetheless, it should
have
been left to the witness to give an explanation why she could
not or was unable to describe the appellant who was at the time not
within her sight.
[32]
It must be mentioned though that Ms TM’s
evidence also had material contradictions. She concluded that
she was going
to tell M[....] that she heard the complainant scream
when she also conceded that she did not know between her and Sipho,
who actually
screamed. In her evidence in chief, she testified
that the only conversation she had with the complainant is when she
asked
her where Sipho had gone to. She never mentioned the
further discussions relating to her scream and that it was the reason
given by the complainant that Sipho was attempting to hit her.
Even if it was to be accepted that she asked her about her
scream,
the problem then is that the complainant denied that she screamed and
the explanation that Sipho wanted to hit her was
disavowed by the
complainant. If the discussion about the scream took place, the
prosecutor would in all likelihood have
asked her more about it since
it is a crucial aspect of the rape itself. When it was put to
Ms TM that the complainant did
not mention that she asked her where
Sipho went to, Ms TM discredited her by stating that she likes
telling lies. She put
the complainant’s credibility into
question.
[33]
The only person who made the dock
identification was M[....]. It is clear that her evidence was
tendered to try and close
the gaps that were in the state’s
case. Her identification must be considered having in mind that
the proceedings were
in camera and the appellant was, other than the
court officials, the only person who was in court and in the dock.
Her evidence
as to the identity of the appellant is of a single
witness. It was neither corroborated nor confirmed by the
complainant
and Ms TM. The latter did not even testify that she
related to M[....] what she saw or knew about the incident.
[34]
There are other aspects of M[....]’s
evidence that raise some questions. When she went to the shanty
and called the
name Sipho, a person who responded by exiting the
shanty, claimed that he was not Sipho but Khokhoza. M[....],
without any
debate or questioning, left the person. However, it
is strange that the same person who knew that M[....] was looking for
Sipho who had at least been with the complainant in the shanty,
something that she was not happy about, would wait at her gate
and
later at the tuckshop, and volunteer or confess that he is in fact
Sipho and not Khokhoza; that he was indeed with the complainant
and
nothing else other than sharing a soft drink happened.
Furthermore, M[....]’s evidence that she received a report
from
one Dede about the incident was not confirmed by any other witness
and remains hearsay. The trial court mainly relied
on this
inadmissible evidence to convict the appellant. The state,
which bore the onus to prove the guilt of the appellant
beyond a
reasonable doubt, did not tender any evidence to corroborate the
evidence of M[....]. It is to be remembered that
she was
unhappy about what she heard and without reporting to the police,
undertook an investigation herself. It appears
that a vigilante
group was also invited to participate in the investigations.
[35]
S
v Sauls and Others
[8]
directs us to the correct approach in evaluating evidence of a
witness that has contradictions:
“
The
trial Judge will weigh his evidence, will consider its merits and
demerits and having done so, will decide whether it is trustworthy
and whether, despite the fact that there are shortcomings or defects
or contradictions in the testimony, he [she] is satisfied
that the
truth has been told.”
[36]
Not
every contradiction will result in the evidence of a witness being
rejected. The correct approach was aptly stated
in
Haarhoff
[9]
that:
“
...
It behoves the courts to keep in mind that not every error by a
witness and not every contradiction or deviation affects the
credibility of a witness. Contradictory versions must be considered
and evaluated on a holistic basis. Furthermore, the circumstances
under which the versions were made, the proven reasons for the
contradictions, the actual effect of the contradictions with regard
to the reliability and credibility of the witness, the question
whether the witness was given a sufficient opportunity to explain
the
contradictions, the quality of the explanations and the connection
between the contradictions and the rest of the witness’
evidence are among other factors to be taken into consideration and
weighed up.”
[37]
In its judgment, the trial court did not deal
with the contradictions in the state’s case. The reason
for not doing
so may be that the court accepted that what the state
witnesses testified to was common cause. In my view, this
approach
is a misdirection on the part of the trial court. The
medical report does not assist the state’s case in proving an
act or sexual penetration. At best it may raise more questions
as to the veracity of the complainant’s version that
this was
her first sexual encounter. The trial court concluded that the
perpetrator paid the complainant money to buy her
silence.
Unfortunately, the complainant testified that the perpetrator gave
her the money without saying anything to her.
The evidence as
to how she received the money is also not clear. She mentioned
receipt of the after she had already given her narrative
of the
events and in response to questions from the prosecutor. She
mentioned that she bought chips and one Cecilia took
the rest of the
money. However, Cecilia testified about more items than chips
that the complainant had when she returned
home. When she was asked
by Cecilia as to where she got the money to buy those items, the
complainant did not say anything. The
evidence as to how she received
the money is also not clear.
[38]
It is unfortunate that the police did not do
much to investigate the case. The evidence suggests that the
appellant was taken
by a vigilante group and presented to the police
as the perpetrator. One would have expected the police to have
conducted
a thorough investigation of the scene. This would
have included requesting the complainant and Ms TM or taking them to
the
shanty in question to make some pointing out and observations of
the scene. It is still unclear how the shanty looked like
and
what exactly was inside. Even a picture of the shanty was not
presented as evidence.
[39]
I am not satisfied that the state had proved
the guilt of the appellant beyond a reasonable doubt. It must
be emphasised that
the appellant was not charged for having sexual
penetration with a child below the age of 12 years. The
complainant was 15
years old at the time. Neither was the
appellant charged for an act of sexual penetration with a person with
disability.
The evidence of M[....], who is not an expert in
mental health, to the effect that the complainant had a ‘down
syndrome condition’
as well as a ‘mental’ condition
for which the complainant is taking some medication, was not the
basis for the charge
against the appellant. The appellant was
charged with an ordinary charge of sexual penetration of the
complainant without
consent, which in my view the state had not
succeeded to prove beyond a reasonable doubt.
[40]
In the result, the appeal must succeed and the
conviction of the appellant must be set aside. With this
conclusion, the appeal
against sentence ought not to be considered.
Order
3.
The appeal succeeds.
4.
The conviction of the appellant for
contravening section 3 of the Sexual Offences Act and the sentence of
life imprisonment are
set aside and replaced with the following:
“
The
accused is found not guilty for contravening Section 3 of the
Criminal Law (Sexual Offences and related matters) Amendment Act
32
of 2007.”
L
P TLALETSI
JUDGE
PRESIDENT
I
concur
APS
NXUMALO
JUDGE
On
behalf of the Appellant:
Mr
H. Steynberg
Instructed
by:
Legal Aid South Africa,
Kimberley
On
behalf of the Respondent:
Adv.
RR Makhaga
Instructed
by:
Director Public
Prosecutions, Kimberley
[1]
Criminal Procedure Act 51 of 1977
.
[2]
Section 170A
(1) of the CPA provides:
(1)
Whenever criminal proceedings
are pending before any court and it appears to such court that it
would expose any witness—
(a)
under the biological or mental
age of eighteen years;
(b)
who suffers from a physical,
psychological, mental or emotional condition; or
(c)
who is an older person as
defined in section 1 of the Older Persons Act, 2006 (Act No. 13 of
2006),
to
undue psychological, mental or emotional stress, trauma or suffering
if he or she testifies at such proceedings, the court
may, subject
to subsection (4), appoint a competent person as an intermediary in
order to enable such witness to give his or
her evidence through
that intermediary.
[Sub-s.(1)
substituted by s. 68 of Act No. 32 of 2007 and by s. 8 (a) of Act
No. 12 of 2021 w.e.f 5 August, 2022.]
[3]
Section 164 provides for an instance when unsworn or unaffirmed
evidence is admissible:
“
164 When
unsworn or unaffirmed evidence admissible
(1)
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 lieu of the oath
or affirmation, be admonished by the presiding
judge or judicial officer to speak the truth.
(2)
If such person wilfully and falsely
states anything which, if sworn, would have amounted to
the offence
of perjury or any statutory offence punishable as perjury, he shall
be deemed to have committed that offence, and
shall, upon
conviction, be liable to such punishment as is by law provided as a
punishment for that offence.”
[4]
1999 (1) SACR 447
(W) at 449i-450b, see also
S
v V
2000(1) SACR 2000 (1) 453 (SCA) at 455A-C
[5]
S
v Chabalala
2003(1)
SACR 134 (SCA) at para 15.
[6]
2019(1)
SACR 371 (SCA) at para 37.
[7]
R
v Dlhumayo
1948 (2) 677 at 705-706
[8]
1981
(3) SA 172
(A) at 180E-G.
[9]
Haarhoff
v DPP, EC
2019(1) SACR 371 (SCA) at para 42