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[2022] ZAECMKHC 117
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S v Tshoba (47/2022) [2022] ZAECMKHC 117 (12 December 2022)
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IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, MAKHANDA
NOT
REPORTABLE
Case
no: 47/2022
In
the matter between:
THE
STATE
and
SANDILE
ELVIS TSHOBA
Accused
JUDGMENT
Govindjee
J
[1]
Mr Tshoba was charged with rape in that he
unlawfully and intentionally committed acts of sexual penetration
with the complainant,
E, a 19-year-old mentally and physically
disabled woman, by causing penetration to her genital organs without
her consent and against
her will. He pleaded not guilty, averring
that he was not aware that the complainant was a person with a mental
disability and
claiming that they were in a so-called ‘love
relationship’.
[2]
Any
person who unlawfully and intentionally commits an act of sexual
penetration with a complainant, without that person’s
consent,
is guilty of the offence of rape.
[1]
‘Consent’ means voluntary or uncoerced agreement.
[2]
The Sexual Offences Act provides examples of circumstances in which
the complainant does not voluntary or without coercion agree
to an
act of sexual penetration. This includes where the complainant ‘is
incapable in law of appreciating the nature of the
sexual act’,
including where the complainant is at the time of the commission of
such sexual act ‘a person with a mental
disability’.
[3]
This notion is defined in the Sexual Offences Act as follows:
‘“
person
with a mental disability” means a person affected by any mental
disability, including any disorder or disability of
the mind, to the
extent that he or she, at the time of the alleged commission of the
offence in question, was –
(a)
unable
to appreciate the nature and reasonably foreseeable consequences of a
sexual act;
(b)
able
to appreciate the nature and reasonably foreseeable consequences of
such an act, but unable to act in accordance with that
appreciation;
(c)
unable to resist the commission of any
such act; or
(d)
unable
to communicate his or her unwillingness to participate in any such
act.’
[4]
[3]
Before
convicting, a court must always be satisfied that every element of
the offence has been established by evidence that is truthful
and
reliable beyond reasonable doubt. In cases of rape, those elements
include both absence of consent and knowledge by the accused
of the
absence of consent (or at least knowledge of that possibility).
[5]
If the prosecution proves that the circumstances set out in s 1(3) of
the Sexual Offences Act exist an accused cannot successfully
raise a
defence of consent.
[6]
A court
can reject an accused person’s claim of belief in consent by
drawing inferences from objective facts which indicate
the
contrary.
[7]
[4]
An
accused person who genuinely believes that a defence excluding
unlawfulness exists, even though it does not, lacks fault (
mens
rea
)
in the form of intention.
[8]
Unlawfulness is established in cases where, objectively, a reasonable
person in the position of the accused person would not have
acted in
the same way. What is at issue in cases of a putative defence is
culpability.
[9]
As Burchell
indicates, if a complainant lacked legal capacity to consent, the
accused’s conduct in persisting in sexual penetration
of the
complainant would be unlawful.
[10]
But an erroneous belief that the complainant has consented to sexual
intercourse may, depending upon the circumstances, exclude
dolus
.
[11]
The accused person may escape liability on the ground of absence of
knowledge of the unlawfulness of their conduct if they believed
that
the complainant had the necessary capacity and was in fact consenting
validly.
[12]
An honest belief
would suffice.
[13]
In
S
v Vilakazi
,
Nugent JA offered the following translation of the dictum in
S
v S
[14]
in explaining the position:
[15]
‘
Although
the appellant had sexual intercourse with the complainant without her
consent and against her will he is not guilty of
rape if he
bona
fide
believed that she consented …
In the present case the appellant does not allege that he believed
that the complainant consented
to intercourse and he could not allege
that, given his denial that he had intercourse with her. That does
not relieve the State
however of the obligation to prove
mens
rea
, although the appellant’s
false denial that intercourse occurred makes the State’s task
in that regard considerably
easier.’
[5]
Schwikkard
has summarised the position, most usefully, as follows:
[16]
‘
In
terms of the current definition of rape, the prosecution must prove
the perpetrator’s intention to sexually penetrate the
complainant without the complainant’s consent.
Dolus
eventualis
will suffice and the burden
of proof in relation to the absence of consent will be discharged
even if the accused did not intend
to have non-consensual intercourse
if the prosecution can prove beyond a reasonable doubt that the
accused foresaw the possibility
that the complainant was not
consenting and nevertheless proceeded. Foresight is tested
subjectively: if the perpetrator did not
foresee the possibility of
the absence of consent, no matter how unreasonable the lack of
foresight, they must be acquitted.’
[6]
The question is whether the state has
proved beyond reasonable doubt that Mr Tshoba subjectively had the
necessary intent to commit
the crime. In other words, that he did not
entertain an honest belief that the complainant could consent and had
consented.
[7]
According
to Burchell, ‘If intention is the fault element for the
offence, the mistake will not be a defence if the prosecution
proves
beyond reasonable doubt that the accused at least foresaw the
possibility of the unlawfulness of their conduct.’
[17]
Put differently, actual knowledge of lack of capacity is not required
for a conviction: it is sufficient if the accused foresaw
the
possibility that the complainant lacked the capacity to consent or
was not consenting, or that, in the circumstances consent
was not
recognised by law, and nevertheless proceeded with the commission of
the offence.
[18]
[8]
Ramsbottom
JA held as follows in
R
v Z
:
[19]
‘
Rape
is a crime in which intention is an element … That intention
must be proved as an essential element in the Crown case.
If the
accused believed that the woman had consented, the guilty intent or
mens rea
is lacking. The
onus
is on the Crown to prove that the accused had the necessary
mens
rea
, and therefore the Crown must prove
that the accused knew that the woman had not consented … That
the accused had that knowledge
may be proved in many ways, and proof
that the accused was aware of the possibility of non-consent and was
reckless whether the
woman consented or not will suffice, but the
necessary
mens rea
,
like the other elements in the crime must be proved beyond all
reasonable doubt.’
The evidence
[9]
Dr Lee, a general medical practitioner,
testified that he had seen the complainant on 8 November 2020 at
Aliwal North Hospital and
completed a J88 report. His examination
suggested recent sexual activity and that the complainant had been a
virgin prior to this.
He observed a perforated hymen and could
observe a whitish substance, which he assumed was semen, suggesting
that sexual intercourse
had taken place. No overt signs of forceful
penetration or sexual trauma were visible to him.
[10]
Dr Lee testified that he had noticed
physical and mental ‘retardation’ when examining the
complainant. Much of the interview
had occurred via the complainant’s
guardian and with the assistance of the police. It was the first time
he had performed
an examination of a person with mental challenges,
and he confirmed that mental assessment was not his strength. Her
responses
were not normal but he conceded that it was difficult to
gauge her mental capacity from a single consultation, particularly
when
his focus had been on gathering physical evidence. He
nevertheless would have doubted her ability to consent had she
presented
for a medical procedure. His impression was that she lacked
intelligence, although this had not been reflected on his report. In
fact, the J88 made no reference to the fact that the complainant had
been assisted by her guardian during the examination or that
she was
a person with a mental disability. In the space provided for comment
on ‘Mental health and emotional status’
the doctor had
merely indicated ‘Good’. By contrast, the form reflected
a physical issue with the complainant’s
arm. Dr Lee testified
that ‘consensual intercourse was possible’, given the
findings of his examination.
[11]
Dr Andrews, a clinical psychologist,
testified that she has performed numerous psychological assessments
and appeared in court as
an expert witness on various occasions since
2007. The complainant had been referred to her for an assessment of
the extent of
her mental incapacity, her ability to testify in court
and ability to consent to sexual intercourse. She had interviewed the
complainant
and her guardian and conducted ‘mental state
examination’ and psychometric testing. Dr Andrews reported as
follows
regarding the mental state examination:
‘
E
… presented as a 20-year-old female who was normally
physically mature, but obviously physically impaired. Her left arm
was crippled and maintained at her side. Her left leg was crippled,
giving her a notable limp when she walked. Her speech was obviously
impaired, with poor word pronunciation. She was able to use language
to communicate, but her verbal skills were immature and impaired.
E’s
cognitive functioning was consistent with moderate to severe
cognitive impairment upon Head Injury. Fluid cognitive functions
of
attention, concentration, immediate memory and information processing
were notably slow. This had a negative impact on her executive
mental
functioning. These were consistent with a Moderate to Severe
Neurocognitive Disorder, and a Mental Age of 7. E was able
to provide
concrete information about herself and her experience in this case.
However, this information was provided in an impaired
response style.
She was unable to demonstrate an understanding of what it means to
tell the truth and what it means to tell lies.
Her mental state was
characterised by a significant cognitive impairment due to Head
Injury, and a mental capacity consistent with
a Mental Age of 7.’
[12]
Dr Andrews concluded that E did not have
the ability to understand sexual behaviour and opined that her
condition was such that
she fell within the definition of ‘mentally
disabled’ in the Sexual Offences Act. It was reported that E
was able to
say “yes” or “no” but would not
know what these meant in relation to a sexual act, so that she was
unable
to consent to sexual intercourse because of her mental
disability. Dr Andrews’ final conclusion was that ‘It is
obvious
to any lay person that she is physically and mentally
disabled’.
[13]
Under cross-examination, Dr Andrews
testified that her findings cohered with the history she had obtained
from E’s guardian.
She explained, with reference to her comment
that ‘concrete information’ had been provided, that E
would take a word
and use that word to say something that she
associated in her mind with that word, but that she could not
describe matters logically
or chronologically. Dr Andrews testified
that it was possible to hear that E had an impairment when she spoke.
Her cross-examination
proceeded as follows:
‘
Mr
Sojada: “Speech can be impaired even if it is normal.”
Dr Andrews: “This
is usually associated with some neurological damage. Most people
would be on guard [thinking] let me go
further and see if they
understand me when I talk to them. The physical is the start, then
you hear the speech impediment, then
speak to them and realise that
they don’t make sense and then you know that this is a disabled
person.”’
[14]
Part of Dr Andrews’ responses to
cross-examination was drawn directly from her recollection of the
history she had been provided.
For example, she testified that E
could not wash the dishes herself and never went anywhere on her own.
She amplified this point
by stating that regardless of where E went,
she would have to be accompanied by somebody else. She also stated
that it was possible
that E had been in a relationship with the
accused, but that this would be greater reason for him to have known
about her injuries.
[15]
LM, 13 years of age and the daughter of E’s
guardian, testified through an intermediary and via closed circuit
cameras, following
admonishment. She and N, who I gather was a very
young companion, had seen Mr Tshoba and E sleeping in the kitchen on
the night
in question. Her grandfather was asleep at the time in the
bedroom, which was the only other room in the house. She had also
been
in the bedroom and heard E’s ‘cries’, which
drew her to the kitchen where she observed Mr Tshoba making up and
down movements on top of E. She heard E telling Mr Tshoba to leave
her alone. As she was afraid, she did nothing further and returned
to
the bedroom with N. When N’s mother, Ms S [....], knocked at
the kitchen door, she and N had opened it. Mr Tshoba and
E were still
sleeping in the kitchen and spent the night there together. Ms S
[....], who had not been drinking, was crying as
she couldn’t
make contact with her husband. The child did not make any report to
Ms S [....], who had not said anything when
she had seen Mr Tshoba
and E sleeping on the floor.
[16]
The witness also recalled that Mr Tshoba
had asked E to accompany him to buy beers the previous evening before
the alleged sexual
intercourse took place. LM testified that E had
quietly accompanied Mr Tshoba, who by that stage was drunk and could
not walk properly,
when he requested her to buy alcohol with him. The
witness denied that E had been drinking. They were away for a long
period of
time. E had proceeded to the kitchen upon their return and
slept in the place that Ms S [....] and her husband were meant to
occupy.
It was the first time that Mr Tshoba had slept at their home.
The witness said that there was no reason why Mr Tshoba could not
be
E’s boyfriend.
[17]
LM also said that E had fallen asleep in
the kitchen, even though she usually slept in the bedroom. Mr Tshoba,
having consumed the
beer he had bought, had said, when asked, that he
was not going to go to his home. He had switched off the light and
proceeded
to sleep where E was sleeping.
[18]
Mr Tshoba had come to the bedroom the
following morning and advised her not to speak to anyone or make any
disclosure. In return
he would give her an undisclosed sum of money.
She had told Ms S [....] about the offer of money, causing her to
make an exclamation.
Neither she nor Ms S [....] had asked E what she
had been doing with Mr Tshoba. Ms S [....] had called LM’s
grandmother,
who had arrived on the morning after the incident. Only
after her grandmother returned had E asked LM to accompany her. When
they
were near Greenhuis, E indicated that she wanted to go to the
police station. E said that she wished to lay charges against Mr
Tshoba, and told the police that he had raped her.
[19]
Ms D [....] S [....] testified that her
husband, N [....], had been drinking alcohol with Mr Tshoba, who had
offered alcohol to
E. She refused twice, he poured the liquor into a
glass for her and she drank. The drinking continued until late at
night. Mr Tshoba
had left with E at approximately 22h00 to buy more
alcohol and they had returned at 23h30. They drank again. By this
point E was
very drunk and looked as though she may fall.
[20]
Ms S [....] had left the house in pursuit
of N [....] at some point. At that stage both Mr Tshoba and E had
been seated on buckets
in the kitchen. Upon her return she noticed
that the light had been switched off. Whilst knocking at the door she
heard E ‘crying’,
saying “Leave me alone”
repeatedly to Mr Tshoba. Upon entry, Ms S [....] saw Mr Tshoba lying
beside E and said she
was shocked to see them sleeping together. She
called Mrs M [....], the grandmother / mother of the house, to inform
her. She had
not asked E why she had been crying or had cried out,
and said this was due to her shock. She knew that they had had sexual
intercourse.
When she was first asked what she had reported to Mrs M
[....] she made reference only to the fact that Mr Tshoba and E had
been
sleeping together. Mrs M [....] advised that she would return
early the next morning. In response to a leading question about the
cries she said she had heard, she indicated that she had also told
Mrs M [....] about that. She also testified that she had tried
to
wake the grandfather of the house, who had been sleeping. He had not
acted in any way other than to tell her to report to Mrs
M [....],
indicating that he would do the same. She had asked the children what
had happened and they said they had noticed Mr
Tshoba laying on top
of E.
[21]
Ms S [....] said that Ms Tshoba had
frequented that home, and that she had known him for four years. He
did not reside there. E
was ‘not well upstairs’ and
seemed disabled. This was because she was not always audible and
comprehensible and needed
reminding to bath herself. She would become
upset and angry when spoken to. Her opinion was that E would not be
in a position to
have a boyfriend but she was uncertain whether Mr
Tshoba would have known this or not.
[22]
According to Ms S [....], she had heard
from E that Mr Tshoba had said they should ‘only make
themselves happy’. She
had threatened to tell Mrs M [....] that
E had been drinking and was ‘managing herself now’. E had
‘controlled
herself’ and did not stop drinking despite
being asked to do so by Ms S [....]. E had not listened to her and
insisted on
drinking. When asked why she had not asked Mr Tshoba what
he was doing, given what she had heard E say while at the door, she
said
that she was not in a position to do so because of her shock.
She then said she was frightened to do so, even though there were
other adults close by, renting space on the property. She later
testified that she had gone to the owner of the property and knocked,
but was not heard. It had not crossed her mind to seek help from one
of Mrs M [....]’s friends, who lived nearby.
[23]
E had not made any report to Ms S [....]
about Mr Tshoba’s conduct when Ms S [....] had entered the
house. There was no noise
when she entered and when she went to
sleep. E and Mr Tshoba remained quiet and sleeping on the floor until
the following day.
When Ms S [....] discussed the matter with E the
following day, she replied that she was dizzy and that Ms S [....]
should let
go of her. The witness opined that E knew what she had
done. E then decided to go to the police station when she was told
that
Mrs M [....] was close to returning home.
[24]
According to the witness, E mainly needed
assistance because of the problem with her arm. She would leave the
home on her own and
go to the shop. She would only be given a few
rand as she might lose the money. Mrs M [....] left E in the care of
others when
she travelled to Venterstad at the end of each month.
[25]
Mrs M [....] testified that she had cared
for E from January 2020. E had a problem with her arm and spoke using
short sentences,
also requiring assistance to bath. People in the
neighbourhood knew of her condition, and mental state. This was
because she had
visited her neighbours to advise them that E had
arrived to stay with her, and that she was short-tempered and would
sometimes
swear at them. They should be aware that she was this type
of person. She was forgetful and had a speech problem. She would
occasionally
return from the shop without any change and might forget
the reason she had been sent.
[26]
Mr Tshoba had been visiting her home since
2018 as they were distantly related. When E had arrived, Mr Tshoba
had been warned that
she was ‘not okay’ and that she
would sometimes speak rudely to him. She swore at him on occasions
when he sent the
children to buy cigarettes for him and he would
complain to Mrs M [....] that they were rude. Mr Tshoba and E had not
had any conversations
or drank together previously. When Mrs M [....]
left the home to visit her brother, she would leave E in one of her
children’s
care. On this occasion she had asked Ms S [....],
her brother’s wife, to look after E.
[27]
Mrs M [....] testified that she had not
asked Ms S [....] whether Mr Tshoba was still in the home when she
heard about the incident
telephonically. She was shocked to hear that
E and Mr Tshoba had slept together. This was because he was related
to her and she
knew he was HIV positive. He had never slept at her
home before and she was upset that he had made E drink liquor and had
sex with
her, when they did not normally speak to one another.
[28]
Mrs M [....] returned home the following
afternoon. She followed E and LM to the police station and spoke to
E, who did not answer
her question as to why she had left the home
without her. E told her that Mr Tshoba had made her drink alcohol and
she did not
know what happened thereafter, although she had woken up
naked. Mrs M [....] had made the report to the police because of E’s
condition. She said that E could not tell the police the entire
story, only bits and pieces of what had happened. This included
that
Mr Tshoba had taken E to his home when they went to buy beer, pulled
up her dress and placed her on his bed, before they returned
to Mrs M
[....]’s home, where E had passed out.
[29]
Mrs M [....] said that E could not be in a
relationship with Mr Tshoba as she did not go out at night and only
left home for minor
errands. She was a quiet person who did not speak
to anyone. She would not know about sexual intercourse but had the
capacity to
understand that she had needed injections to prevent
menstruation.
[30]
During cross-examination, Mrs M [....]
explained that she had reminded Mr Tshoba about E’s condition
on various occasions.
He tended to be forgetful when under the
influence of alcohol, and would also forget about E’s
challenges when he wanted
to smoke. This is when Mrs M [....] would
intervene. Investigating officers had visited the home subsequent to
the matter being
reported and asked E about what had occurred. At
some point the investigating officer noticed that there was something
amiss with
E, resulting in the referral to the psychologist.
According to Mrs M [....], E recalled details of what had occurred
during the
evening of the incident, including when Mr Tshoba had
lifted her skirt at his home, but could not recall what had been
happening
when the children had been alerted.
[31]
Mrs M [....] could not explain why the
statement made to the police made no reference of E being assisted by
her. She first indicated
that E was not okay and could not recall
‘anything’ that happened to her. After she had made the
statement to the police,
she was ‘not alright’. Mrs M
[....] eventually conceded that E had not been assisted when she made
the statement to
the police, and had told the police what happened.
Her own statement to the police made no reference about any mental
disability,
only indicating that ‘E is physically disabled as
she was in an accident at the age of five years. She is aggressive
and
short minded.’
[32]
Mr Tshoba testified that he had had sexual
intercourse with E. She was healthy and could speak for herself,
despite being physically
disabled. A relationship had developed
between them. They would have conversations about relationships in
general and had kissed
at some point. E did not want Mrs M [....] to
know about this in case she was chased away from the home.
[33]
E had asked him for a drink and he could
see she was tipsy. He asked her if she now drank alcohol, but later
testified that she
had consumed alcohol previously. This had been
hidden from Mrs M [....]. E had forcefully wanted to accompany Mr
Tshoba when he
left the home to purchase alcohol. Ms S [....] had
been informed and had no difficulty with this. They had fetched money
from his
home before proceeding to purchase more alcohol. On the way
they had been seen by some neighbours holding hands. Having consumed
the alcohol at Mrs M [....]’s home upon their return, Mr Tshoba
noticed that he was becoming drunk. He went under the blankets
in the
kitchen and fell asleep. He noticed E getting underneath the
blankets. She was pointing a finger at her mouth and saying
he should
keep quiet and that they should ‘sleep’. She had kissed
him and he reminded her about his HIV status as he
did not have a
condom. She asked him to make an arrangement, and he told her that he
would only insert his penis between her thighs.
They had then had
sexual intercourse while they lay on their sides and he had
ejaculated in his underpants, not between her thighs.
They had slept
and everything had been normal the next day, when he had been
arrested.
[34]
Mr Tshoba said that E was not a person who
could not speak, but she did speak on a ‘stop and go’
basis, but audibly
and understandably. Her words would occasionally
be cut off. She did have anger issues and would use swear words. He
expressed
incredulity at the notion that he had never had a
conversation with E, considering that they had been in each other’s
company
for an eight-month period. He could not comprehend the case
against him. Mrs M [....] had only visited the neighbours to discuss
E’s condition after the incident.
[35]
Mr Tshoba could not explain why he had not
disputed the evidence that Mrs M [....] had explained E’s
condition to her neighbours
upon E’s arrival, that E had been
rude to him on occasion, that LM had heard her scream, called out his
name and asked him
to let go of her or that E had fallen asleep
first. He suggested that it was their words of affection for one
another that may
have woken the children. He also said that Mrs M
[....] had asked him to stay over when she was away.
[36]
Mr Tshoba denied having made up and down
movements on top of E. They had been laying on their sides and he had
‘penetrated’
between her thighs. They had made love and
may have been heard while they expressed those feelings. E had never
said that he should
leave her alone or let go of her. This was
confirmed by the fact that E had not left her spot sleeping in the
kitchen until the
next morning. Had Ms S [....] heard this, it was
implausible that she would not have reported a rape to someone. They
had woken
the next morning without any indication that a visit to the
police station was necessary.
[37]
Mr Tshoba, in response to questions from
the court, said he had been in a secret relationship with E since
September. She had visited
his home frequently and wished to take the
affair further. They had behaved as a couple in public. He had been
shocked when she
had joined him in bed on the night in question and
believed that the complaint to the police had been motivated by Mrs M
[....].
Analysis
[38]
The
vulnerability to and prevalence of rape and other forms of violence
against women and girls with disabilities has been the subject
of a
number of studies, and remains an issue of great concern.
[20]
One study has indicated that individuals with intellectual
disabilities are four to ten times more likely to be sexually abused
than non-disabled persons.
[21]
[39]
It must be accepted that Mr Tshoba and E
had sexual intercourse. Dr Lee’s evidence, although not
unequivocal, coupled with
the observations of LM, who testified
credibly, convince me of that. Given the testimony of Dr Andrews, I
accept that E is a person
with a mental disability, as defined in the
Sexual Offences Act, so that she was unable to consent to sexual
intercourse, given
the definition of that notion in the legislation.
Mr Tshoba is accordingly unable to rely on consent as a defence to
the charge.
It may also be accepted, based on the evidence adduced by
Dr Lee and Dr Andrews, that his conduct was unlawful, on the basis
that
a reasonable person in his position would, objectively, not have
acted in the same way.
[40]
But that is not the end of the matter. Mr
Tshoba may escape liability on the basis of an absence of knowledge
of the unlawfulness
of his conduct. He would then lack the requisite
fault in the form of intention for a conviction. To do so, he must
have honestly
believed that E had the necessary capacity and was in
fact consenting, even though he may have been mistaken as to that
belief.
Such a defence may, however, be negatived by drawing
inferences from objective facts which indicate the contrary.
[41]
LM was a single child witness to the sexual
intercourse. Typically for a child aged only 13, she appeared to be
innocent of precisely
what she was observing in the kitchen. For
example, she described what she had seen as ‘up and down
movements’ rather
than drawing the conclusion that she had been
observing sexual intercourse. She demonstrated a clear recollection
of the events
she had observed, testifying honestly, clearly and in a
forthright manner, albeit with minimal detail. E had cried out. The
kitchen
was close to the bedroom and LM and N heard the cry, left the
bedroom and observed what was occurring. She had observed Mr Tshoba
on top of E, making up and down movements.
[42]
As
to the nature of the cries and her testimony about what she had heard
E say, this evidence must be treated with the necessary
caution.
[22]
The reasons for this are well known, including the imaginativeness
and suggestibility of children, which requires an appropriate
measure
of caution.
[23]
While she
provided a useful account of events, her evidence was not without
blemish, as may be expected of a child her age testifying
about
events which occurred some months previously. At one point she
testified in a manner which suggested that the up and down
movements
had continued even when Ms S [....] entered after knocking, which is
improbable considering all the evidence. She conceded
that this was
not the case during cross-examination. Mr Tshoba and E were sleeping
quietly when Ms S [....] entered.
[43]
In addition, LM had fallen asleep and been
woken by the sound of E’s cries. Applying the necessary level
of caution, it appears
as if LM may have conflated aspects of what
she observed when testifying. Her major recollection was of observing
the up and down
movements, having been woken up and drawn to the
kitchen by the ‘cries’. The nature and extent of those
‘cries’
is uncertain, as is whether she in fact observed
any up and down movements accompanied by these ‘cries’.
[44]
Whether because she sensed the children’s
presence or otherwise, I accept that E communicated to Mr Tshoba that
he should
cease, but not repeatedly so or in a manner that caused LM
to be concerned about her safety. This partly explains why she failed
to make any report about what she had seen or heard to Ms S [....],
when she returned to the dwelling. I accept that she would
have
experienced some level of discomfort based on what she had seen and
heard.
[45]
I also accept LM’s testimony that Mr
Tshoba, who was under the influence of alcohol, had asked E to
accompany him to purchase
more beer, that E had fallen asleep in the
kitchen before him when they returned after some time, so that he
joined her in bed,
and that he had offered LM money for her silence
the following morning. She was, however, mistaken in believing that E
had not
consumed any alcohol that evening.
[46]
By contrast, Ms S [....] did not impress me
with her recollection of events. She appeared over-eager to testify
in a manner that
would secure a conviction, implausibly seeking to
explain away her own inaction at the time. I am particularly
unconvinced that
she had heard E crying or telling Mr Tshoba to leave
her alone. This is because I accept LM’s version that, having
heard
E cry out and seen them having sex, she and N had returned to
the bedroom. Ms S [....]’s knocks, which drew them out of the
bedroom again to answer the door, occurred later, and the
probabilities favour that Ms S [....] had not heard anything outside
the door or upon entry into the home. She accepted that it was quiet
when she entered and that she had heard no noise from Mr Tshoba
or E
until she went to bed.
[47]
This would explain her subsequent inaction.
While she may have been surprised to see Mr Tshoba sleeping with E,
so that she contacted
Mrs M [....] telephonically to report this, her
belated suggestion that she had reported to Mrs M [....] hearing E
cry or indicate
that she wished to be left alone was contrived. The
probabilities do not support this version, particularly when
considering Mrs
M [....]’s recollection of what Ms S [....] had
communicated to her telephonically, which made no mention of this
aspect.
[48]
Ms S [....] knew that Mr Tshoba and E had
sexual intercourse upon entering the house and before going to sleep,
despite LM not making
any report to her about this upon her re-entry
into the home. Mrs M [....] recalled Ms S [....] telling her this
telephonically
during the early hours of the morning. Ms S [....]’s
evidence that she had tried to wake the grandfather, was fearful or
paralysed with shock or had attempted to wake the owner of the
property before going to bed, cannot be accepted and appears to be
a
fabrication.
[49]
As for Mrs M [....], despite various
opportunities to provide a clear answer for the reason she was
shocked to hear that E and Mr
Tshoba had had intercourse, her
discomfort was clearly not based on E’s mental condition but on
various other considerations:
‘
Mr
Mgenge: Was it strange that he slept over?
Mrs M [....]: I was
shocked and not okay after hearing that.
Mr Mgenge: Why did this
shock you?
Mrs M [....]: He knows
the complainant is my blood. I know that he is HIV positive. Like me,
when I use my medication he would ask
for a tablet to use.
Mr Mgenge: You were
shocked?
Mrs M [....]: [Yes],
because he never slept over at my place – that never happened.
Mr Mgenge: You were
shocked about him having sex with the complainant?
Mrs M [....]: I was
shocked when I heard that he made her to drink liquor.
Mr Mgenge: Listen to the
question …
Mrs M [....]: I was
shocked because he made her to drink liquor and had sex with her and
he [has] nothing to do with the complainant
because they never spoke
to one another …’
[50]
Mrs
M [....]’s testimony about what occurred at the police station
vacillated. Her initial version, that much of what had
been said to
the police was spoken by LM, was gainsaid by LM’s own
testimony, which made it clear that E had been the one
to tell the
police what had occurred. She later testified that E could not recall
anything that had happened to her that evening,
which is inconsistent
with the testimony of LM and Ms S [....]. She eventually conceded
that E had told the police what had occurred
when the matter was
reported. On that day she had remembered a great deal of what had
occurred, but subsequently, according to
Mrs M [....], lost that
recollection. Even though uncontradicted, these shortcomings and the
manner in which she testified affect
the assessment of Mrs M [....]’s
testimony about what precisely she had communicated to Mr Tshoba
about E’s condition
prior to the incident, and what it was that
he would ‘forget’ when engaging with her in Mrs M
[....]’s presence.
[24]
Her evidence was too vague and contradictory to serve as sufficient
proof, on its own, that Mr Tshoba foresaw the possibility that
E
could not consent to sexual intercourse.
[25]
[51]
Considering the totality of evidence, it
may be accepted that it was Mr Tshoba who offered E alcohol to drink,
and that she eventually
accepted and drank with him. It may also be
accepted that they left the home together for a period of time in
excess of an hour,
after he requested her to accompany him,
continuing to drink upon their return. E was consequently under the
influence of alcohol
by the time she went to sleep. Ms S [....], who
was sober, was aware that E was drinking and may have expressed some
concern at
some point during the evening. It may be accepted that she
had been left in charge of the household during Mrs M [....]’s
absence, prompting her call to Mrs M [....] when she observed Mr
Tshoba sleeping with E in the kitchen later that night. Nevertheless,
she ultimately did not stop E drinking or accompanying Mr Tshoba when
he had left the home to buy more alcohol. Their lengthy absence
would
have also been noted by Ms S [....], who observed their continued
drinking upon their return.
[52]
As
indicated, the state must prove beyond reasonable doubt that Mr
Tshoba had the necessary
mens
rea
,
in that he did not honestly believe that E could consent and had
consented. It would suffice to show that Mr Tshoba foresaw the
possibility that E lacked the capacity to consent or was not
consenting and nevertheless proceeded to have intercourse with her.
It must be noted that the subjective test for intention may be
satisfied by inferential reasoning:
[26]
‘
In
attempting to decide by inferential reasoning the state of mind of a
particular accused at a particular time, it seems to me
that a trier
of fact should try mentally to project himself into the position of
that accused at that time. He must of course also
be on his guard
against the insidious and subconscious influence of
ex
post facto
knowledge.’
[53]
Courts
must, however, exercise caution against drawing the inference of
subjective foresight too easily:
[27]
‘
The
court should guard against proceeding too readily from “ought
to have foreseen” to “must have foreseen”
and
thence to “by necessary inference in fact foresaw” the
possible consequences of the conduct being inquired into.
The several
thought processes attributed to an accused must be established beyond
reasonable doubt, having due regard to the particular
circumstances
which attended the conduct being inquired into.”
[54]
Holmes
JA expressed the degree of proof in the following terms in
Sigwahla
:
[28]
‘
Subjective
foresight, like any other factual issue, may be proved by inference.
To constitute proof beyond reasonable doubt the
inference must be the
only one which can reasonably be drawn. It cannot be so drawn if
there is a reasonable possibility that subjectively
the accused did
not foresee, even if he ought reasonably to have done so, and even if
he probably did do so.’
[55]
Courts
have consistently emphasised that any inference of guilt that is
drawn can only be drawn if it is the
only
inference that can reasonably be drawn from the proved facts or
evidence. The evidence must be examined as a whole by the trial
court
and if there is credible evidence sufficient to create a reasonable
doubt in favour of the accused, he must be given this
benefit.
[29]
There is no onus on Mr Tshoba to convince the court of the truth of
his explanation and he should be acquitted if there exists
a
reasonable possibility that his evidence may be true.
[56]
It
is immediately apparent, when considering the evidence as a whole,
that E’s mental disability is of a more subtle kind
that might
be assumed given the stark conclusions emanating from the report
containing the psychological assessments. The related
evidence
highlighted the low mental age of the complainant and conveyed the
impression that she required constant assistance in
order to
function. While E did not testify, various pieces of evidence
emanating from other witnesses who did so convey a more
nuanced sense
of her level of functioning.
[30]
This is relevant in considering whether there were objective facts
from which an inference that Mr Tshoba possessed subjective
foresight
may be drawn, and whether the state has proved its case. The court
must also be careful of inferring,
ex
post facto
,
knowledge on the part of Mr Tshoba on the basis of Dr Andrews’
testimony, particularly when considering that the lay witnesses
who
testified on behalf of the state were far less unequivocal about the
nature of E’s condition.
[57]
It must be accepted that E was able to make
a statement to the police about what had transpired unassisted, and
that she had told
the police a version of events. Leaving aside the
statement itself, this is apparent from the evidence of LM and Mrs M
[....].
The police accepted E’s statement based on what she
told them. Only later was it suggested that she be referred to a
psychologist
for assessment, seemingly after various interactions
with the police, suggesting that at least her initial interaction
with them,
which involved using words to describe what had occurred
to her, did not immediately alert them to the fact that she was a
person
with a mental disability.
[58]
Dr Lee could not recall whether and to what
extent Mrs M [....] had assisted E when she had been examined by him.
Given the extent
of his recollection of his examination of E,
including difficulties experienced due to language, it must be
accepted that he would
have been able to recall had the information
he obtained, including the relevant medical history, emanated from
Mrs M [....].
[59]
The impression conveyed by Ms S [....] and
Mrs M [....] focused on her rudeness and anger, her forgetfulness and
unusual speech.
As already indicated, I accept that, based on these
factors taken in combination with her physical disability, a
reasonable person
would have realised that E was a person with a
mental disability. Yet the two adults who know Mr Tshoba and who
testified made
statements that suggest that his level of
understanding about her mental condition was less certain and was
inconsistent.
[60]
Ms S [....], while of the view that E could
not have a boyfriend because of her condition, stated that Mr Tshoba
might not have
known this. She had known him for a period of four
years. She added that E had known what had transpired when she spoke
to her
the next day, when E had experienced a dizzy head. This is
consistent with E’s ability to have recalled what had occurred,
even though she may have been under the influence of alcohol, and to
talk about this to the police and Dr Lee.
[61]
Mrs M [....] had considered it necessary to
tell her neighbours about E’s condition, suggesting that her
mental disability
was not automatically apparent to all who would
come across her. She had warned Mr Tshoba, but seemingly with an
emphasis on E’s
rudeness, and conceded that he ‘would
sometimes forget’ what she had warned him, particularly when
drinking or when
he sent the children for cigarettes. E would then
swear at him. As far as LM was concerned, there was no reason why Mr
Tshoba could
not be E’s boyfriend.
[62]
The
circumstances surrounding E’s visit to the police station must
also be taken into consideration. On Mrs M [....]’s
version,
which I accept on the point, this only occurred during the afternoon
of the day after the incident. E had not immediately
woken up and
reported that she had been raped.
[31]
It is so that in criminal proceedings involving the alleged
commission of a sexual offence, a court may not draw any inference
only from the length of any delay between the alleged commission of
such offence and the reporting thereof.
[32]
It must, however, be accepted that, despite being a person with a
mental disability, she was mentally able to do so and in fact
did so
sometime later, also recalling at least aspects of what had occurred
when being examined by Dr Lee. The report occurred
only when Mrs M
[....] returned from her trip that afternoon. This is similar to Ms S
[....]’s version that E decided to
go to the police station
only when she was told that Mrs M [....] had almost reached home.
This accords with Mr Tshoba’s
version that the complaint was
motivated by her fear of Mrs M [....]’s reaction to what had
occurred.
[63]
It is also necessary to consider Mr
Tshoba’s evidence as part of determining the key issue. At
times he provided an unreliable
account of what occurred, ultimately
suggesting a fanciful longer-term, semi-public love relationship with
E which cannot be accepted.
He vacillated from accepting that he had
had sexual intercourse with E, and repeatedly referring to their
love-making, to suggesting
that he had placed his penis between her
thighs. He then claimed to have ejaculated in his underpants, a claim
which must be rejected.
[64]
Other parts of his testimony were, however,
believable. I accept that Mr Tshoba would have conversed with E on
occasion prior to
the incident, given that he frequented Mrs M
[....]’s home, where she resided. His incredulity at the
suggestion that they
never conversed was, in my view, genuine. Given
that I accept that E, based on Mrs M [....]’s testimony, was
able to have
a conversation about menstruation, and seemingly able to
make her own decision to take medication to prevent this, and was
able
to provide an account of an alleged rape to the police, and, in
more truncated fashion, to Dr Lee, I also accept that their
conversation
may, at some point, have turned to Mr Tshoba’s
relationships, as he suggested. He also testified openly about E’s
anger
issues and the shortcomings he had observed with her speech,
also during cross-examination, adding that what she said was
nevertheless
understandable. This is consistent with E being able to
make a statement to the police unassisted.
[65]
Mr Tshoba ultimately acknowledged that he
had gone to sleep when he was feeling drunk and that E had also been
under the influence
of alcohol. The probabilities favour that he
offered E alcohol, that she drank for the first time, that he asked
her to accompany
him to purchase additional alcohol, and that she
fell asleep first after they had returned and consumed more alcohol.
I accept
that sexual intercourse subsequently took place, and, based
on the medical report, that E had been a virgin. As is so often the
case in sexual offence-related matters, events in question were
seemingly driven by alcohol.
[66]
An
accused person is bound to be convicted if the evidence establishes
his guilt beyond reasonable doubt. He must be acquitted if
it is
reasonably possible that he might be innocent. In analysing the
evidence and reaching a conclusion, this court is obliged
to account
for all the evidence.
[33]
The
SCA has favoured an approach which involves a detailed and critical
examination of each and every component in a body of evidence.
But
once that is done, it is necessary to step back and consider the
picture as a whole.
[34]
[67]
Importantly,
it is well established that a court does not have to be convinced
that every detail of an accused’s version is
true. The court is
also obliged to make due allowance for reasons why Mr Tshoba may have
dishonestly denied certain facts.
[35]
In particular, I am alive to the possible reasons for his dishonesty
in respect of actual sexual penetration, when considering
his
admitted HIV-positive status. It has been held that mendacious
evidence cannot supplement gaps in the state case and, on its
own,
justify a finding of guilt.
[36]
If the accused’s version is reasonably possibly true in
substance the court must decide the matter on the acceptance of that
version.
[37]
An accused’s
version may only be rejected on the basis of inherent probabilities
if it can be said to be so improbable that
it cannot reasonably
possibly be true.
[38]
[68]
Considering
the evidence as a whole, I am unconvinced that the state has proved
beyond reasonable doubt that Mr Tshoba subjectively
foresaw the
possibility that E lacked the capacity to consent or was not
consenting during the time that sexual intercourse took
place. In the
circumstances, he ought reasonably to have done so. Even if, on the
probabilities, he probably did foresee that possibility,
that is not
the test to be applied and there is a reasonable possibility that
subjectively he did not foresee that possibility
at the relevant
time. Put differently, there is sufficient doubt in my mind, based on
the evidence presented, that he did not foresee
the possibility that
E lacked capacity to consent. The nature of his evidence, suspicious
as it is, does not change that.
[39]
In coming to this conclusion, the evidence of E’s level of
functioning in general, the events of the night in question, E
drinking alcohol and accompanying him for an extended period out of
the house, their return and resumption of drinking, the evidence
of
what transpired during the time of intercourse and immediately
thereafter, including the limited evidence as to the nature and
extent of the sounds heard by LM, the quality of the testimony of Ms
S [....] and Mrs M [....], as well as the context of E’s
reporting of the incident to the police, have all been considered and
weighed, together with the strengths and weaknesses of Mr
Tshoba’s
evidence. I have also considered Dr Lee’s report that, although
this is not decisive given the nature of the
human body, there were
no overt signs of rape or of forceful penetration.
[69]
It may be accepted that Mr Tshoba became
concerned, in the cold light of day, as to how the events of the
previous evening would
be perceived, prompting him to suggest a bribe
to LM, and to fabricate aspects of his relationship with E during his
testimony.
But that conduct, when considered together with the other
available evidence, is insufficient to result in the conclusion that
he did not honestly believe that she had the capacity to consent and
was consenting the previous night. It follows that I am of
the view
that the inference of his subjective foresight that the state seeks
to draw is not the only inference that can be drawn
from the proved
facts. There is sufficient credible evidence that has emerged to
create a reasonable doubt, which must, in terms
of our system of
justice, operate in favour of Mr Tshoba, and which justifies an
acquittal.
[70]
A
final issue may be noted. Msipa has noted that the testimonial
competence of witnesses with intellectual disabilities is frequently
challenged because of a misconception that their disability makes
them incompetent and unreliable witnesses, adding the following:
[40]
‘
A
finding of incompetence means that the complainant does not get to
testify or that the court does not accept her testimony, without
which the chances of a successful prosecution may be seriously
compromised.’
[71]
Msipa
concludes that the provision of accommodations is the best method of
addressing the problems associated with the traditional
approach to
testimonial competence that is taken in South Africa. The learned
author proposes that assessments to do with testimonial
competence
should be concerned with asking what supports an individual may
require in order to participate effectively and on an
equal basis
with others, as opposed to merely assessing whether or not that
individual is competent to testify.
[41]
This argument is premised on the Convention on the Rights of Persons
with Disabilities (CRPD) and its extension of the definition
of
discrimination to include the denial of reasonable
accommodations.
[42]
The author
proposes an approach designed to ensure that the witness is properly
accommodated to enable them to tell their story
in court.
[43]
Perhaps more controversially, she also questions whether there is
still a place for assessments of competence.
[44]
[72]
In
S
v Katoo
,
[45]
the SCA considered the capacity of a person with the mental age of a
four-year-old child to testify, in the context of s 194 of
the
Criminal Procedure Act, 1977 (‘the Act’).
[46]
The court concluded that the person did not fall within the ambit of
s 194 and had been competent to testify, and noted that it
was the
duty of the trial court to conduct an inquiry in order to decide on
the issue of competence when this is raised.
[47]
[73]
More
recently, the SCA, with reference to
Katoo
,
held as follows in
Haarhoff
:
[48]
‘“
In
the past courts in this country have permitted persons suffering from
mental disorders as well as imbeciles to testify subject
to their
being competent to do so … That approach is in harmony with
the presumption contained in s 192 to the effect that
every person is
a competent witness.”
[21] It is therefore
clear from that dictum and the cases cited therein that the law
applicable in this country before 30 May 1961
did not equate a
person’s infirmity of mind with incompetence to testify in
court.’
[74]
While
expert evidence about a witness’s competence to testify may be
decisive, it is the court that must ultimately decide
that issue, and
not the parties. This is self-evident when considering s 193 of the
Act, read with s 194A(1). As the SCA explained
in
Katoo
,
the court may do so by way of an enquiry whereby medical evidence on
the mental state of the witness is led or by allowing the
witness to
testify so that the court can observe him or her and form its own
opinion on the witness’s ability to testify.
[49]
Parties to criminal proceedings should be careful to proceed as if
the nature of an expert report is automatically determinative
of the
point. There also appears to be merit in the suggestion, drawn from
the CRPD, that expert competence assessments should
at least
consider, as part of the report presented to court, whether any
reasonable accommodations might assist a person with a
mental
disability to the extent that they would be able to tell their story
personally in court. Their participation in court proceedings,
in
appropriate cases, should be facilitated in the interests of justice.
Order
[75]
The accused is found not guilty of the
charge of rape.
A
GOVINDJEE
JUDGE
OF THE HIGH COURT
Heard
:10-11&19-20
October 2022
Delivered
:12
December 2022
Appearances:
For
the State:
Adv S Mgenge
Director of Public
Prosecutions
Makhanda
046 602 3000
For
the defence: Mr V Sojada
Legal Aid South Africa
Makhanda
046 636 9350
[1]
S
3 of the Criminal Law (Sexual Offences and Related Matters)
Amendment Act, 2007 (Act 32 of 2007) (‘the Sexual Offences
Act’).
[2]
S
1(2) of the Sexual Offences Act.
[3]
S
1(3)
(d)
(v)
of the Sexual Offences Act. The previous wording of this provision
made reference to ‘a person who is mentally disabled’.
[4]
S
1 of the Sexual Offences Act.
[5]
S
v Vilakazi
2012
(6) SA 353
(SCA) para 47.
[6]
S
v Prins
2017
(1) SACR 20
(WCC) as cited in PJ Schwikkard ‘Rape: An
unreasonable belief in consent should not be a defence’ (2021)
SACJ
vol 34(1) 76 at 80.
[7]
J
Burchell
Principles
of Criminal Law
(5
th
Ed) (Juta) (2016) at 626. Also see
R
v K
1958 (3) SA 420
(A) at 422D – E.
[8]
See
J Burchell
South
African Criminal Law and Procedure: Vol I: General Principles of
Criminal Law
(4
th
Ed) (2011) ch28-p416. See Burchell n 7 at 361 on the need for a
court to be reluctant to label an accused’s belief as not
‘rational’ when the central issue is whether the
accused’s belief was in fact ‘genuinely’ held.
[9]
S
v De Oliveira
1993
(2) SACR 59
(A) at 63.
[10]
Burchell
n 8 ch28-421.
[11]
S v De
Oliveira
n
9
at
64.
[12]
Burchell
n 8 ch28-421.
[13]
See
Burchell
n 8 ch28-422 and the cases cited at fn 115.
[14]
S
v S
1971
(2) SA 591
(A) at 597B – F.
[15]
S
v Vilakazi
n
5 para 47. The learned judge added the following: ‘Where an
accused person advances a false defence, as the appellant
did in
this case, a court might ordinarily infer that the reason for doing
so is that he or she has no other defence. But on
the ordinary logic
of inferential reasoning that inference could not properly be drawn
if another reason presents itself. The
most that could then be said
is that he or she might have advanced a false defence for either of
those reasons. Needless to say
an accused person in that position
takes a considerable risk. For if there is unchallenged evidence of
all the elements of the
offence a court would be perfectly justified
in accepting the evidence. It is if there is no evidence on the
issue that the onus
that rests on the state will accrue to the
benefit of the accused for the gap in the evidence could not be
filled by an inference
drawn against the accused. That is not a
matter of law but only a consequence of ordinary inferential
reasoning: para 48.
[16]
Schwikkard
n 6 at 82. The learned author, in arguing for legislative reform,
goes on to elucidate the current position. Before
an accused person
can be convicted on the basis of absence of consent due to one or
more of the factors listed in s 1(3) of the
Sexual Offences Act
being present, they must have been aware that those factors existed
and that they negated consent. The reasonableness
of the accused’s
ignorance or mistaken belief in consent will be irrelevant. The
court must make a finding on the accused’s
subjective belief
notwithstanding that the honesty of that belief will be assessed in
the context of all the proven facts before
the court: at 83, 84.
Also see Burchell n … at 236.
[17]
Burchell
n 8 ch 28-p416.
[18]
Burchell
n 8 ch 28-422.
[19]
R
v Z
1960
(1) SA 739
(A) at 745D – H.
[20]
D
Msipa ‘How assessments of testimonial competence perpetuate
inequality and discrimination for persons with intellectual
disabilities: An analysis of the approach taken in South Africa and
Zimbabwe’ (2015) 3
African
Disability Rights Yearbook
63-90 at 63,64.
[21]
Id.
[22]
S
v Manda
1951
(3) SA 158
(A) at 162E-163F.
[23]
Id.
Also see
S
v Webber
1971 (3) SA 754
(A) at 758.
[24]
See
Katz
v Bloomfield and Keith
1914 (TPD) 379 at 381.
[25]
See
Shenker
Bros v Bester
[1952] 4 All SA 64
(A);
1952 (3) SA 664
(A) at 670F-G. Also see
Sigournay
v Gillibanks
1960 (2) SA 552
(A) at 558H;
Pullen
v S
2019 (2) SACR 605
(ECG) para 14.
[26]
S
v Mini
1963
(3) SA 188 (A).
[27]
S
v Bradshaw
1977
(1) PH H60 (A).
[28]
S
v Sigwahla
1967
(4) SA 566
(A) at 570.
[29]
See
Burchell n 7 at 360.
[30]
See
S
v N
1979
(4) SA 632
(O) at 634.
[31]
Cf
S
v McLaggan
[2012] ZAECGHC 63 para 133.
[32]
S
59 of the Sexual Offences Act.
[33]
S
v Van Aswegen
[2001]
JOL 8267 (SCA); 2001 (2) SACR (SCA).
[34]
S
v Mbuli
2003
(1) SACR 97
(SCA) para 57.
[35]
S
v Mtsweni
[1984] ZASCA 150
;
[1985]
3 All SA 344
(A) at 345 - 346;
1985 (1) SA 590
(A) at 593D –
594G. Mendacious evidence or a false statement does not always
justify the most extreme inference, and the
following factors must
be taken into account: a) the nature, extent and materiality of the
lies, and whether they necessarily
indicate a realization of guilt;
b) the accused’s age, level of development, cultural and
social background and status
insofar as they can explain his lies;
c) possible reasons why people resort to lies, for example, that in
certain circumstances
a lie may sound more acceptable than the
truth; d) the tendency in some cases for a person to deny the truth
because of a fear
that he may become involved in an incident or
crime or because of a fear that an admission of his involvement in
an incident
or crime, however slight, carries the danger of an
inference of guilt out of all proportion to the truth.
[36]
S
v Mtsweni
id.
[37]
S
v Shackell
2001
(2) SACR (SCA) at 194g – i.
[38]
Id.
[39]
R
v Churchill
1959
(2) SA 575
(A) at 578E – I.
[40]
Msipa
n 20 at 64.
[41]
Id
at 65, 66.
[42]
CRPD,
art 2.
[43]
Msipa
n 20 at 74.
[44]
Msiba
n 20 at 90.
[45]
S
v Katoo
2005
(1) SACR 522 (SCA).
[46]
Act
51 of 1977.
[47]
Katoo
n
45 para 12.
Haarhoff
& Another v Director of Public Prosecutions, Eastern Cape
[2018] ZASCA 184
para 17.
[48]
Haarhoff
& Another v Director of Public Prosecutions, Eastern Cape
[2018]
ZASCA 184
para 17.
[49]
Katoo
n
45 para 12.