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[2021] ZANCHC 8
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Van Wyk v S (CA & R 85/2015) [2021] ZANCHC 8 (8 January 2021)
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IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
No: CA
&
R 85/2015
Heard
on:
30/11/2020
Delivered
on: 08/01/2021
In
the matter between:
GERT
VAN
WYK
Appellant
and
THE
STATE
Respondent
Quorum:
Mamosebo J et Mofokeng AJ
JUDGMENT
ON APPEAL
MAMOSEBO
J
[1]
The
appellant was convicted by Regional Magistrate, Mr A
Huysamen,
in Fraserburg,
Northern
Cape, on two charges of rape of a 14-year old girl in contravention
of s 3 read with sections 1, 56(1), 57, 58, 59, 60
and 61 of the
Criminal Law (Sexual Offences and Related Matters) Amendment Act
[1]
;
which rape would have occurred between June 2012 and July 2012. The
State further alleged and proved that since she was 14 years
old the
provisions of s 51 and/or 52 of the Criminal Law Amendment Act
[2]
were applicable. The appellant had pleaded not guilty but was
nevertheless convicted as charged and sentenced to life imprisonment.
He now appeals against his conviction and sentence.
[2]
The issues that stands for determination on appeal are the following:
In
respect of the conviction:
2.1
Was the procedure followed by the Magistrate in admonishing the
complainant to tell
the truth correct and in accordance with the law?
2.2
Did the State succeed in proving its case against the appellant
beyond reasonable
doubt?
In
respect of sentence:
2.3
Whether there are substantial and compelling circumstances justifying
a deviation
from the imposition of the prescribed minimum sentence of
life imprisonment.
[3]
A
brief historical background is that the complainant was born on […]
and on the date of her testimony was fifteen years
and
six months old. Her evidence was obtained
through
an
intermediary
in
terms
of
s
170A
of
the
Criminal
Procedure
Act
[3]
,
(CPA).
[4]
The complainant’s version is that during 2012 she resided with
her
uncle, W D[…] and aunt, E D[…], her two younger
brothers, J[…] and A[…] aged 11 and 8 years, and a
nephew, B D[..], 6 years and a niece, J D[…], 12 years and
uncle Gert van WYK, who is her mother’s and aunt E D[…]’
brother.
[5]
They stayed in a four-roomed house comprising, 2 bedrooms, a kitchen
and
a toilet. The one bedroom was occupied by her uncle aunt and
nephew, while the other bedroom accommodated the rest of them. She
shared a bed with her niece while uncle Gert (the appellant) and her
two brothers shared the other bed depicted on Exh B. She and
her
niece slept on the bed marked A.
[6]
on· the night of the incident, a date which she cannot
remember,
but which occurrence is predicated on his release from
prison, she heard the appellant entering their bedroom. She
recognised his
voice when he spoke to her. She then felt her and
J[…]’s (12 yrs) blanket being removed and her pyjamas
with her panty
being pulled out. She tried to scream but he blocked
her mouth and raped her. He threatened to kill her should she report
the incident
to anyone. She remained on her bed crying as her private
parts were painful. He went to his bed and slept. The other children
were
all present in the bedroom but asleep.
[7]
The appellant approached her again on a Friday night, she cannot
remember
the date, and forced himself on her again. The same process
and threats followed before he returned to his side of the bed and
slept. She cried and slept.
[8]
The complainant obviously did not immediately report the sexual
attacks
on her to the family. However, she happened to develop a rash
on her neck and was taken to hospital. She summoned courage and
reported
to the nurse attending her, Sister Doreen Sonja Douts, that
she was raped. Sister Douts referred her to a doctor who was only
available
on a Tuesday. The complainant was accompanied by her aunt,
Ms E D[...], when she was examined by the doctor. The doctor advised
Ms Demas and her ward to report the incidents to the police which
they did.
[9]
The complainant was cross-examined at length on the discrepancies as
regards
the dates in her statement and her testimony in court. She
ascribed the faded memory to the time lapse.
[10]
Ms Maria Magdalena Smit is the probation officer who compiled the
report and recommended
that the complainant testify through an
intermediary. Having compiled a written report, she conducted a
further interview with
the complainant on 05 June 2012. The report
recorded that she cried during the interview, was withdrawn since the
incident which
has traumatised her. The probation officer also dealt
with the impact the incident has had on the complainant, including
her disturbed
sleeping and eating patterns. Her behaviour at school
has also been adversely affected, as she has grown quieter than
usual. Her
evaluation of the complainant is of a girl who has become
traumatised, shocked, shy, introverted, temperamental and easily
frightened.
She was assessed as a victim displaying the signs of
rape. Her self-esteem and self confidence have taken a knock.
She immediately
withdraws to the bedroom, which is also one of the
classic symptoms of a child who has been raped. She intimated to the
probation
officer that she is scared of the appellant and men in
general after the incident.
[11]
Ms Doreen Sonja Douts, the Nursing Sister at Fraserburg Hospital,
testified of her 27 years nursing
experience. She has acquired a
forensic qualification to conduct examinations pertaining to sexual
assaults, completion of J88
forms and assaults in general. On 13
September 2012 she was invited by a colleague, Sister Florence
Ntoate, into the consulting
rooms to assist with “a
dull
looking lady”
only to find that it was the complainant. She
deduced that the complainant was emotionally traumatised from the
manner she was
seated (the foetal position). She explained the
position as follows ‘when a person sits with his or her knees
bent upwards,
hands on the thighs and head bowed down.’ She
said that was a sign of a person who was injured and in pain and just
needed
to keep her comfort zone to herself. She invited the
complainant to tell her what happened. The complainant was reluctant
to speak
until Sister Douts assured her that she could trust her.
That is when the complainant disclosed to her that she was sexually
molested
by her uncle a month earlier and explained how it happened.
[12]
Sister Douts conducted a vaginal examination. Although there was no
tearing the hymen was
absent. She had a vaginal discharge with a bad
odour. She observed that her labia minora was not prominent which
meant that she
was not sexually active but that she had had sexual
intercourse with a person who had an infection. She did not complete
the J88
form but referred the complainant to the doctor.
[13]
Ms E D[…] is the complainant’s aunt and foster mother
for over four years. The complainant
is her sister’s child. The
appellant is her brother. The appellant resided at her home from June
to September 2012 upon his
release from prison. She took the
complainant to the clinic because of a rash but during consultation
with Sister Douts the complainant
was reluctant to respond to the
Sister's questions in her aunt's presence who then excused herself
from the consultation room.
When Ms Demas was later advised to bring
the complainant for consultation with the doctor the following
Tuesday, she did so. The
doctor informed her that the complainant was
raped and advised her to lay charges. She accompanied the complainant
to the police
station. When she enquired from the complainant why she
did not report to her the response was that the appellant, threatened
to
kill her should she do so. It was put to her that the appellant
only stayed at her home from 25 July to 25 September 2012 but she
was
adamant that he stayed at her home from June to September of that
year. The State closed its case.
[14]
The appellant’s version is that he pleaded not guilty to the
charge of rape because
the date on which the State alleges he
committed the offence he had been incarcerated at the Victoria-Wes
Prison from 24 April
to 09 July 2012. He then resided with his
sister, Ms E D[…], the last state witness, from 09 to 25 July
2012 upon his release.
From 25 July 2012 to 25 September 2012 he
stayed with Dampie Freslaar when the police arrested him for the rape
of the complainant.
He denied ever raping the complainant. The
appellant therefore raised an alibi.
[15]
In
as far as the act of rape is concerned the complainant is a single
witness. The remarks by Holmes
JA
in
S
v Artman
and
Another
[4]
are
apposite:
“
She
was, however,
a
single
witness in the implication of the appellant. The fact, however, does
not require the existence of implicatory corroboration:
indeed, in
that event she would not be
a
single
witness. What was required was that her testimony should be clear and
satisfactory in all material respects; see R v Mokoena,
1956 (3) SA
81
(AD) at pp 85-6. The trial Court unanimously found that her
evidence passed this test. I would add
that,
while there is always need for caution in such cases, the ultimate
requirement is proof beyond reasonable doubt; and courts
must
guard against their reasoning tending to become stifled by formalism.
In other words, the exercise of caution must not be allowed
to
displace the exercise of common sense.”
[16]
In
S
v Jackson
[5]
and
S
v M
[6]
the
obligatory requirement of corroboration in as far as sexual offences
cases are concerned the
Supreme
of Appeal declared that it was based on an irrational and
outdated
perception. The complainant’s rape was not reported immediately
but the delayed report is covered by s 59 of the
Criminal Law (Sexual
Offences and Related Matters) Amendment Act
[7]
and no adverse inference will be drawn from the length of the
delay,
besides it was adequately explained.
ON
CONVICTION
[17]
The first issue, raised by Mr van Tonder for the appellant, is
whether the procedure followed
by the presiding officer in the
admonishment of the complainant before she testified was correct and
in accordance with the law.
He held a negative view whereas State
counsel, Mr Cloete, argued in its favour.
[18]
The complainant was 14 years at the time of the incident but 15 years
and 6 months when
she testified. The Magistrate asked her,
inter
alia,
the following questions (the repetition of the court's
questions by the intermediary to the complainant have been omitted):
“
Magistrate:
Hoe
oud is u nou, Elisa?
Complainant:
14
jaar oud.
Magistrate:
Voordat u voortgaan,
Elisa, die hof moet nou vir u vra
of u die waarheid sal praat, die hof moet nou vir u insweer.
Complainant:
Ja, juffrou.
Magistrate:
As jou
ma
nou stuur na die kafee met geld om brood te
koop en jy koop lekkers daarmee, is dit reg of is dit verkeerd?
Complainant:
Verkeerd
Magistrate:
Wat
gebeur
dan
daarna
as
jy
so
verkeerd
opgetree
het?
Complainant:
Dan kry ek slae.
Magistrate:
Nou
die hof gaan nie vandag
vir
u vra om te
sweer
dat u die waarheid gaan praat nie. Maar die hof waarsku
u net om die waarheid te praat en indien u nie die waarheid gaan
praat nie,
dan
gaan u in groot moeilikheid kom.
Complainant:
Ja.
Magistrate:
Goed dankie, die hof is tevrede dat sy onderneem
het om
die
waarheid
te
praat
in
terme
van
artikel
164
van
die
Strafproses kan u dan
nou maar voortgaan dat sy behoorlik
ingesweer
is.
”
[19]
Mr
Van Tonder, relying on
S
v Matshiva
[8]
submitted
that the Magistrate had failed to comply with the peremptory enquiry
set out in s 162 read with 164 of the CPA as the
admonition and the
questioning were inadequate which renders the complainant’s
evidence inadmissible
and
allow the appeal.
[20]
Mr
Cloete on the other hand invoked
S
v
SB
[9]
,
Haarhoff
and
Another v Director of Public Prosecutions, Eastern Cape
[10]
and
S
v
SD
[11]
asserting
that there is no rigid or formal process to be followed in
questioning child complainants as a flexible process is envisaged;
the central purpose of the process to be followed gravitates towards
whether the evidence led will be reliable or not; that the
complainant was duly admonished and found to be competent to testify,
argued counsel. The complainant may have been 15 years and
6 months
when she testified. The fact that the probation officer had assessed
her in advance and determined that she should testify
through an
intermediary despite her age, should not be used to discredit the
approach followed by the Magistrate in
questioning
her to determine whether she understood what was meant to tell the
truth. The Magistrate was steeped in the atmosphere
of the courtroom
and also observed the complainant.
[21]
In
Haarhoff
[12]
at
para [27] the Court
said:
“
[27]
I mention en passant that the fact, that the trial court did not make
a
specific
finding that the complainant did not understand the nature and import
of the oath or affirmation before deciding to admonish
her, was not
raised as an issue in this appeal. In any event, it is settled law
that an express finding is not
a
prerequisite
to
admonishing
a
witness.”
See
S
v B
2003
(1) SACR 52
(SCA) para 15.
[22]
The
following are instructive remarks by the Constitutional Court in
The
Director of Public Prosecutions, Transvaal v Minister of Justice and
Constitutional Development,
and
Others
[13]
:
“
[165]
The practice followed in courts is for the judicial officer to
question the child in order
to determine whether the child
understands
what
it means to speak the truth.
[S]ome
of these questions are very theoretical and seek to determine the
child's understanding of the abstract concepts of truth
and
falsehood. The questioning may at times be very confusing and even
terrifying for
a
child.
The
result
is that the judicial officer may be left with the impression that the
child does not understand what it means to speak the
truth and then
disqualify the child from
giving
evidence. Yet with skilful questioning, that child may
be
able to convey in his or her own child language, to the presiding
officer that he or she understands what it means to speak the
truth.
What the section requires is not the knowledge of abstract concepts
of truth and falsehood.
What
the proviso requires is that the child will speak the truth.
As
the High Court observed, the child may not know intellectual concepts
of truth or
falsehood, but will
understand
what it means to be required to relate what happened and nothing
else.
””
[23]
The Constitutional Court continued at para 166 that:
“
[167]
.......
Here
the manner in which the child is questioned is crucial to the
enquiry. It is here where the role of the intermediary
becomes
vital.
The
intermediary
will
ensure
that
questions by the court to the child are conveyed in
a
manner
that the child can comprehend and that
the
answers given by the child are conveyed in
a
manner
that the court will understand.”
(emphasis
added).
[24]
The
Matshiva
case is distinguishable from the case before us
in that the witness was never placed under oath or admonished to tell
the truth
as was done
in casu.
No case has been made out on
behalf of the appellant that the complainant’s evidence is
inadmissible on that basis. I am satisfied
that the requirements of s
162 have been met and no substantive injustice has occurred.
[25]
The second issue to be determined is whether or not the evidence of
the complainant was
reliable enough to sustain a conviction on the
charge of rape. Mr Van Tonder submitted that it was not in that she
got muddled
with dates as stated earlier and was a single witness in
a rape incident. It was further contended that it was improbable that
she cried and yet. no one in the house heard her cries. Mr Van Tonder
submitted further that the evidence of Sister Douts was not
strong
enough to support the conviction of the appellant and maintains on
behalf of the appellant that the evidence by the State
is of a poor
quality and cannot sustain a conviction.
[26]
Mr Cloete argued that no valid criticism was levelled against the
complainant on behalf
of the appellant. How she cried was not taken
up during the trial. It is not the appellate court’s duty to
speculate but
she may have sobbed after the ordeal and that is not
unimaginable for a fourteen year old. In any event, a concession was
made
by Mr Van Tonder that it is not improbable that nobody could
have heard her crying. Counsel lost sight of the fact that she was
warned by her attacker, who was in the house not to raise the alarm
or risk being killed.
[27]
What is material and consistent from the evidence which overshadows
the issue of the date
is that, first, she knows the identity of the
rapist who stayed in the same house and shared a bed allocated to him
and her two
younger brothers. The appellant himself in his version
repeatedly confirmed that the complainant knows him since her
childhood
and even recognises his voice. She was further able to
recognise his voice when he uttered the death threats to her. There
could
therefore be no mistake in as far as the appellant’s
identity is concerned.
[28]
Secondly, the incident also revolves around the appellant’s
release from prison which happened
in that first week. Ms Demas, his
sister, confirmed that he stayed with them upon his release from
prison and supplied relevant
dates. There is further compelling
medical evidence that corroborates the complainant's version that she
was raped. Mr Van Tonder
criticised the evidence of Sister Douts
maintaining that it was insufficient to support the complainant's
case and secure the appellant’s
conviction. I disagree. Sister
Douts is an experienced nurse trained in the forensic field. She not
only made an observation about
the sitting position of the
complainant but had also conducted a clinical examination that
confirmed that she was raped. A finding
that was later confirmed by
the medical doctor.
[29]
The
complainant’s evidence is further attacked on the basis of the
contradiction regarding the specified date in her statement
made to
the
police and her oral evidence in court. Molemela JA has reiterated
what was said in
S
v Mafaladiso en Andere
[14]
in
Haarhoff
[15]
and
it befits to quote the para in full:
“
[42]
In S v Mafaladiso en Andere this court emphasised that the
adjudicator of fact must keep in mind that
a
previous
statement is not taken down by means of cross-examination,
that
there may be language and cultural differences between
the
witness and the person taking down the statement which can stand in
the way of what precisely
was
meant,
and that the person giving the statement is seldom, if ever, asked by
the police officer to explain their statement in detail.
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’s evidence are among other factors
to
be taken into consideration and weighed up.”
[30]
The complainant’s evidence cannot be assessed in isolation but
must be weighed against
the totality of the evidence. Evidently,
medical evidence shows that she was raped and the evidence of the
probation officer confirmed
her behaviour and trauma as indicative of
the consequences of a raped victim. Even if one were to accept that
she may have erred
in as far as the date is concerned but she was
able to remember that the incident happened immediately after the
appellant’s
release from prison. Not remembering the date does
not make her dishonest or more importantly an unreliable witness or
even provide
any justification to disqualify or discredit her entire
testimony. I am satisfied that safe for the issue with the date, for
which
a persuasive explanation was considered and accepted, her
entire evidence was reliably recounted.
[31]
The appellant raised a bare denial as his defence. The Magistrate
found that he evaded
questions and in certain instances even refused
to answer the questions posed to him or repeatedly stated “
ek
kan nie daarmee stem nie.”
The Magistrate has also
considered the reason why the appellant moved out of his sister’s
home and dealt with it comprehensively
in the judgment. The defence
witness did not take the appellant’s case any further. The
trial court has correctly found that
the State had succeeded in
disproving the appellant’s alibi and in finding that the bare
denial by the appellant in the commission
of the rape was false. I am
satisfied that the State had succeeded in proving its case beyond
reasonable doubt.
It follows that the appellant's conviction on
the charge of rape should stand.
ON
SENTENCE
[32]
The last aspect pertains to whether there were substantial and
compelling circumstances
present justifying a deviation from the
prescribed minimum sentence of life imprisonment. The relief sought
by the appellant is
for this court to set aside the sentence imposed
and to replace it with an attenuated one.
[33]
It
is trite that sentencing is within the discretion of the trial court.
An
appeal
court will only interfere with the sentence if there was a
misdirection
or
if
the
sentence
imposed is
shockingly
inappropriate. See
S
v Sadler
[16]
S
v Pillay
[17]
[34]
It
was contended on behalf of the appellant relying on
S
v Abrahams
[18]
that
the complainant's rape was not one of the worst rapes imaginable and
this factor should contribute towards substantial and
compelling
circumstances. In countering this submission Mr Cloete put emphasis
on the tender age of the complainant and the testimony
of Sister
Douts and Ms Maria
Magdalena
Smit, the social worker who testified in relation to the traumatic
effect this rape has had on the complainant. The appellant
carries a
previous conviction of rape having been convicted on 27 August 1998
and sentenced to 8 years imprisonment, of which,
2 years were
suspended for 5 years on normal conditions.
[35]
The
society, particularly women and children, needs to be protected from
the appellant. The case of
Abrahams
was
decided in 2002 and the
boni
mores
of
society in respect of rape has evolved. Rape continues to be a
scourge which must be dealt with decisively. The remarks by Ponnan
JA
in
S
v
Matyityi
[19]
are
pertinent when the Court said
[20]
that sentencing should be victim centred.
[36]
The following factors are worth mentioning in aggravation of
sentence: The rape of the
complainant occurred not only in her own
home (her supposed fortress) but also on her own bed (her supposed
elementary comfort
zone) by her own uncle (her supposed protector)
who on the contrary threatened to kill her should she alert any to
his vile deed.
[37]
Rape is one of the worst forms of abuse an innocent child can be put
through. I am not
persuaded by the submission that this was not the
worst form of rape hence the sentence should be attenuated. The fact
remains
that a permanent emotional scar has been inflicted on the
life a girl who was in her bloom.
[38]
I am satisfied that the trial court has taken all the above factors
into consideration
and did not err in its finding that there were no
substantial and compelling circumstances. The submission that such
circumstances
exist is without merit. The sentence of life
imprisonment stands to be confirmed.
[39]
In the result, the following order is made:
The
appeal against conviction and sentence is dismissed.
MC
MAMOSEBO
JUDGE
OF THE HIGH COURT
NORTHERN
CAPE DIVISION
I
agree
A
MOFOKENG
ACTING
JUDGE OF THE HIGH COURT
NORTHERN
CAPE DIVISION
For
the appellant:
Mr A van Tonder
Instructed
by:
Legal Aid South Africa
For
the respondent:
Adv JJ Cloete
Instructed
by:
The Director Public Prosecutions
[1]
32 of 2007
[2]
105 of 1997
[3]
51 of 1977
[4]
1968 (3) SA 339
(A) at 341A- C
[5]
1998 (1) SACR 470
(SCA) at 476e
[6]
2006 (1) SACR 135
(SCA) at 199j - 200c
[7]
32 of 2007
[8]
2014 (1) SACR 29 (SCA)
[9]
2014 (1) SACR 66 (SCA)
[10]
2019 (1) SACR 371 (SCA)
[11]
2020 (1) SACR 78 (KZP)
[12]
Fn 10 above
[13]
2009 (2) SACR 130
(CC) at para 165
[14]
2003 (1) SACR 583 (SCA)
[15]
At para 42
[16]
2000 (1) SACR 331
(SCA) at para 10
[17]
1977 (4) SA 531
(A) at 535
[18]
2002 (1) SACR 116
(SCA)
[19]
2011 (1) SACR 40 (SCA)
[20]
At para 16