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[2021] ZAKZPHC 75
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Sibiya v S (AR447/2019) [2021] ZAKZPHC 75 (12 February 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: AR447/2019
In
the matter between:
MATHEMBI
THEMBEKA
SIBIYA
APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
Delivered
on 12 February 2021
Mossop
AJ (Seegobin J concurring):
[1] The
appellant, an adult female aged 29, stood trial in the Inkanyezi
Regional Court on a charge of rape, the
State alleging that on
diverse occasions between 2017 and 24 August 2018 she unlawfully
committed an act of sexual penetration
with a nine-year-old boy, by
inserting the boy’s penis into her vagina without his consent.
In order to avoid identifying
the boy any further I shall refer to
him as ‘
the complainant
’.
[2] The
appellant pleaded not guilty to the charge but after hearing the
evidence, the Learned Regional Magistrate
presiding convicted her as
charged and by virtue of the provisions of section 51(1) read with
Part 1 of Schedule 2 of the
Criminal Law Amendment Act 105 of 1997
sentenced the appellant to life imprisonment because the complainant
was below the age of 16 years when the offence was committed.
[3] As
a consequence of the imposition of a sentence of life imprisonment,
this appeal is before us in terms of
the provisions of section 309 of
the Criminal Procedure Act 51 of 1977 (henceforth ‘
the
Act
’).
[4] The
charge sheet indicated that the offence of rape had been committed on
diverse occasions. The evidence revealed
that there were, in fact,
three occasions that the State relied upon. No evidence was led as to
the date of the first two occasions:
the best that that the
complainant could do was to say that the second occasion occurred on
a Saturday. The third occasion was
alleged to have occurred on 24
August 2018. I shall refer to the occasions of the alleged rape as
the ‘
first assault
’, the ‘
second assault
’
and the ‘
third assault
’ respectively.
[5] Before
considering the evidence, it is appropriate at this juncture to deal
with a point taken
in limine
by Mr. Marimuthu, who appears for
the appellant, in his heads of argument. He submits that the Learned
Regional Magistrate did
not ascertain that the complainant did not
understand the nature and import of the oath before he gave his
evidence, and also failed
to ascertain whether the complainant could
distinguish between truth and lies.
[6] Mr
Marimuthu correctly points out in his heads of argument that in terms
of section 162 of the Act, all witnesses
at a criminal trial must
give evidence under oath. An exception to this general rule is to be
found in section 164 of the Act.
Section 164(1) finds effect when a
court is dealing with the admission of evidence of a witness, who
from ignorance arising from
youth, defective education or other
cause, is found not to understand the nature and import of the oath
or the affirmation. Such
a witness must instead of being sworn in or
affirmed, be admonished by the judicial officer to speak the truth.
However, it is
clear from the reading of section 164(1) that for it
to be triggered there must first be a finding that the witness does
not understand
the nature and import of the oath. Before such a
finding can be made there must be some form of enquiry to establish
whether the
witness understands the nature and import of the oath. If
the judicial officer should find after such an enquiry that the
witness
does not possess the required capacity to understand the
nature and import of the oath, it must be ascertained whether the
witness
can distinguish between truth and lies and if the enquiry
yields a positive outcome, admonish the witness to speak the
truth.
[1]
[7] In
my view, the Learned Regional Magistrate engaged in a very thorough
questioning of the complainant prior
to admonishing him to speak the
truth. The complainant confirmed that he knew it was important to
tell the truth and acknowledged
that persons who lie would receive a
hiding at school, as would he if he lied at home. He was subject to a
practical exercise from
which it appeared that he understood the
difference between a lie and the truth. The only criticism that can
be levelled at the
Learned Regional Court Magistrate is that she
never asked him whether he knew what it was to take the oath. After
questioning the
complainant, the Learned Regional Magistrate
concluded that the complainant ‘
will not understand the
nature and the import of the oath
’.
[8] Given
his answers to the questions put to him by the Learned Regional
Magistrate there was a possibility that
he may well have understood
what it means to take the oath, but he was never asked that specific
question. I am, however, satisfied
that the Learned Regional
Magistrate substantially complied with the prescripts of section 164
of the Act and I cannot otherwise
find any fault with the manner in
which the complainant was admonished to tell the truth. In my view,
the complainant’s evidence
was correctly received. Whether it
was adequate is another question entirely. The point
in limine
must therefore fail.
[9] As
regards the first two assaults, the only evidence led was that of the
complainant. He gave his evidence
on 31 October 2018 and indicated in
response to a question from the prosecutor that the previous year he
had been in grade 3. He
stated further that when he was in grade 2
the first assault had occurred. On that occasion, he was at the
appellant’s home.
He had been playing outside when the
appellant called him into her room where he found her on her bed. She
was clad only in her
panties. She then undressed him and took off her
panties. After doing so she:
‘…
took
my penis and inserted it in her vagina.’
The
interpreter recorded that these were the exact words used by the
complainant.
[10] The
assault came to an end when his aunt returned to the homestead.
[11] That
was the sum total of the evidence led on the first assault.
[12] As
regards the second assault, the complainant said that it occurred on
a Saturday. He was in grade 3 when
it occurred. It happened during
the day at his homestead and he indicated that there were many people
at home that day, including
his mother. He had gone to the appellant
to ask her to dish up his food for him. She had referred him to a
person known as Nto.
However, Nto refused to assist him and he went
back to the appellant to report this to her. The appellant then
undressed him, undressed
herself and instructed him to get on the
bed. After he was on the bed, she got on top of him and she then:
‘…
took
my penis and inserted it into her vagina.’
That
was the sum total of the evidence led on the second assault.
[13] Turning
to consider the facts of the third assault, the principal witness for
the State, besides the complainant,
was Simphiwe Zinhle Mathaba. She
was friendly with one Andile who resided at the complainant’s
homestead and she had previously
visited that homestead. She, Andile
and others had attended a rehearsal at a neighbouring homestead on
the afternoon of 24 August
2018. They returned to the complainant’s
homestead at around 22h30 and retired to bed. They were to sleep in a
rondavel in
which there were two beds. The complainant’s mother
occupied one of those beds. The other bed was occupied by Andile and
the appellant. There were others in the room as well: the witness
indicated that:
‘
On the floor
now the children slept, there were many and that is where they slept
in any event, they slept on the floor.’
[14] The
witness herself slept on the floor. She testified that the rondavel
had electric lighting. With the room
in darkness, she fell asleep.
She testified, however, that it was her habit to waken at midnight in
order to pray. To ensure that
she kept to this routine, she set her
cellular telephone’s alarm to waken her at that hour. Praying
appears also to have
required her to don certain church garb. Waking
at midnight and after having put the required clothing on, she
completed her prayers
in the dark but noticed that the appellant was
awake and that she was in the process of waking the complainant. The
appellant gave
the complainant her cellular telephone and it appeared
to the witness that she instructed him to check whether all the other
occupants
of the rondavel were asleep. The next thing that the
witness heard was a noise that sounded like
‘
[i]t was like a
person was screaming …’
[15] The
voice that the witness heard was that of a female. The witness
immediately got up and switched on the
overhead electric light,
illuminating the rondavel. She observed the appellant ‘
on
top of a child
’. The child, she later clarified, was the
complainant. She testified that the appellant was having sexual
intercourse with
the complainant. This was happening on the floor.
The complainant slept on the floor next to the bed occupied by the
appellant.
According to the witness, the appellant was wearing her
pyjama top on the upper part of her body but wore nothing on the
lower
part of her body. When the light was turned on, the appellant
moved off the complainant back to the bed that she previously
occupied.
[16] The
witness thereafter turned off the overhead light and slept until
04h00, when she next was required to
wake and pray. The complainant
also awoke at that hour and asked the witness what the time was. She
indicated that it was still
too early for him to prepare water for a
bath but nonetheless he went and bathed. When he was done and was
intent on disposing
of the bathwater, the witness walked with him and
asked what the appellant had been doing to him during the night. The
complainant
looked around but did not respond and the witness
indicated to him that she had made a video recording of what had
occurred and
would show it to his mother. The complainant then
narrated that the appellant had woken him up, undressed him and
inserted his
penis into her vagina.
[17] The
complainant’s version of what transpired on the third occasion
was that when the witness Mathaba,
Andile and a person named ‘
Le
’
returned from the rehearsal at the neighbour’s homestead, he
awoke and went to fetch a bowl to wash but was told that
it was not
yet time to bath so that he ‘
could go to school
’.
He went back to sleep on the grass mat on the floor. He confirmed
that there were seven children including himself in the
rondavel and
five adults, one of whom was his mother. Having gone to sleep, the
complainant testified that the appellant woke him
and asked him to
fetch her cellular telephone. He did so and placed it on her bed. The
appellant moved the blanket away and revealed
that she was only
wearing her panties. The rondavel, however, remained in darkness. The
appellant then undressed the complainant
and removed her panties and
then got on top of the complainant, who was supine on the floor, and
she:
‘…
then
took my penis and inserted it into her vagina …’
[18] The
light was then switched on by Mathaba and the appellant jumped off
him and returned to her bed. The appellant
thereafter asked him to
locate her pyjamas and gave him her cellular telephone to help him to
do so. The appellant allegedly also
spoke to Mathaba about where her,
the appellant’s, blanket might be.
[19]
The
complainant’s mother, who was in the rondavel on one of the
beds, was called to testify. She did not testify at all about
any of
the events that allegedly occurred in the rondavel. Her knowledge of
events was derived solely from what she had been told
by the witness
Mathaba or what she was told by her son. She had been notified by
Mathaba that something was amiss and joined Mathaba
and the
complainant outside the rondavel. Interestingly, she testified that
she asked her son why he had had not cried out whilst
the appellant
was raping him ‘
because
I would have perhaps heard that
.’
The evidence of Mathaba was that there had been a noise of someone
screaming, but clearly the complainant’s mother
had not heard
that.
[20] The
State also called the evidence of the district surgeon who examined
the complainant after the third assault.
Dr Gumede testified that he
found two small red erosions on the corona of the complainant’s
penis. His examination otherwise
did not reveal anything unusual. He
indicated that he was not an expert on sexual assault and did not
feel comfortable straying
into that field and so he did not. He did
testify, however, that pulling back the penis with force could cause
bruising and as
a consequence
‘…
I
can never conclude it was due to the case that was presented sexual
assault, but any force applied, pressure applied can lead
to the
erosion of the skin.’
[21] As
Mr. Marimuthu pointed out in his heads of argument, the doctor was
imperfectly questioned and cross-examined.
He was not asked therefore
the obvious question of whether the erosion that he observed could
have been self-inflicted in the course
of sexual self-exploration by
the complainant or boisterous, young activity. Given the reluctance
of the doctor to commit to a
finding that sexual interference did
occur, this is a possibility that was not excluded by the State
[22] The
conviction of the appellant of the three sexual assaults depended,
primarily, on the evidence of the complainant.
That the evidence of a
single witness who is also a child needs to be approached with
caution is trite.
In
Woji
v Sanlam Insurance Co Ltd,
[2]
Diemont JA provided a guide to approaching the evidence of young
children. The guide highlights, as the focal point, the
trustworthiness
of the evidence. The Learned Judge said the
following:
‘
The question
which the trial Court must ask itself is whether the young witness’
evidence is trustworthy. Trustworthiness,
as is pointed out by
Wigmore in his Code of Evidence para 568 at 128, depends on factors
such as the child’s power of observation,
his power of
recollection, and his power of narration on the specific matter to be
testified. In each instance the capacity of
the particular child is
to be investigated. His capacity of observation will depend on
whether he appears “intelligent enough
to observe”.
Whether he has the capacity of recollection will depend again on
whether he has sufficient years of discretion
“to remember what
occurs” while the capacity of narration or communication raises
the question whether the child has
“the capacity to understand
the questions put, and to frame and express intelligent answers”
(Wigmore on Evidence vol
II para 506 at 596). There are other factors
as well which the Court will take into account in assessing the
child’s trustworthiness
in the witness-box. Does he appear to
be honest – is there a consciousness of the duty to speak the
truth? Then also “the
nature of the evidence given by the child
may be of a simple kind and may relate to a subject-matter clearly
within the field of
its understanding and interest and the
circumstances may be such as practically to exclude the risks arising
from suggestibility”
(per SCHREINER JA in R v Manda
[1951 (3)
SA 158
(A)]). At the same time the danger of believing a child where
evidence stands alone must not be underrated.’
[3]
[23] The
Learned Regional Magistrate found at the outset of the trial that the
complainant was not capable of understanding
the concept of the oath.
In addition, he disclosed that he had been required to repeat grade 1
of his schooling. These are factors
that need to be borne in mind
when assessing his evidence. The complainant’s powers of
observation and his ability to recollect
events seemed to be limited.
Two examples of this should suffice. In his evidence on the first
assault, the following exchange
occurred between the prosecutor and
the complainant:
‘
PROSECUTOR
Boy do you remember how was your penis when Mathembi inserted it in
her vagina? --- No.’
[24] One
would have anticipated that the complainant would have recalled this
as he was adamant that his penis
had been inserted into the
appellant’s vagina. In fact, no evidence was ever adduced as to
whether the complainant ever had
an erection. Such evidence would
have been important in establishing whether it was indeed possible
for his penis to be inserted
into the appellant’s vagina as he
repeatedly testified.
[25] The
second example of his limited powers of observation and recall is to
be found in the following exchange
between him and the prosecutor
when he testified on the second assault:
‘
PROSECUTOR
And how was Mathembi on the bed, how was her position on the bed when
she told you to come closer to
her? --- I cannot remember.’
This
is critical evidence when the complainant is the only source of
evidence that was utilised to convict the appellant. It is
evidence
that one would have expected him to have remembered and recalled.
[26] Where
evidence other than that of the complainant’s evidence was
relied upon by the State, there were
significant differences between
what the complainant said and what the other witness said, more
specifically what the witness Mathaba
said. Dealing with the evidence
in respect of the third assault,
on the complainant’s
version, the appellant was completely naked as she was wearing no top
and had removed her panties, whereas
Mathaba testified that she was
wearing her pyjama top. Mathaba said that the complainant went around
the rondavel with the appellant’s
cellular telephone checking
whether each of the occupants of the rondavel were asleep – the
complainant made no reference
to this at all. The complainant
testified that there had been a discussion between the appellant and
Mathaba after the light had
been turned on concerning where the
appellant’s blanket was - Mathaba did not mention speaking to
the appellant after the
light was turned on.
[27] In
addition, the complainant testified that he intended to bath so that
he would be able to attend school.
This would seem to be unlikely as
24 August 2018, the date of the third assault, was a Friday and the
complainant would not have
attended school on the Saturday.
[28] These
are all points that have been well taken by Mr. Marimuthu in his
considered heads of argument.
[29] A
further matter of some concern is the almost mechanical fashion that
the complainant testified that the
appellant had inserted his penis
into her vagina. His evidence on this aspect of each of the assaults
was identical and creates
the impression that he had, perhaps, been
schooled to ensure that he said these words.
[30]
The
proper approach in a case such as this is for the court to apply its
mind not only to the merits and the demerits of the State
and the
defence witnesses, but also the probabilities of the case. It is only
after so applying its mind that a court would be
justified in
reaching a conclusion as to whether the guilt of an accused has been
established beyond all reasonable doubt.
[4]
[31] The
probabilities in this case would appear, in my view, to be largely in
favour of the appellant. As regards
the third assault, given the
large number of people in the room (totalling twelve in all of which
five were adults) and the fact
that one of those adults present was
the complainant’s mother, it strikes me as being improbable
that the appellant would
have conducted herself in the fashion
alleged. The possibility of being caught
in
flagrante delicto
would have been
great. Furthermore, it seems inconceivable that the scream that the
witness Mathaba heard was loud enough to rouse
her but not any of the
other people occupying the rondavel. No-one else was called to
testify that they heard the scream. In addition,
it seems improbable
that none of the other occupants of the rondavel were woken by the
switching on of the overhead light by Mathaba
to permit them to
observe what only the witness Mathaba appears to have observed.
Finally, if Mathaba had indeed witnessed what
she claims to have
seen, it seems improbable to me that she would not then and there
have raised the alarm and drawn attention
to what was happening
before her very eyes. She would surely have acted immediately to put
a stop to what was occurring. She professed
to have been shocked, but
was still able to go back to sleep and did not think of drawing
attention to the abuse that she had just
witnessed.
[32] The
complainant did not report to his mother the occurrence of any of the
acts of assault to which he was
allegedly a victim. It is difficult
to assess how long he had remained silent about the first and second
assaults as it is not
known when those assaults occurred. But it is
inescapable that he remained silent until he was spoken to by the
witness Mathaba,
when he then mentioned all three assaults. That he
made mention of the events surrounding the third assault was as a
consequence
of the witness Mathaba falsely stating that she had made
a video recording of what had transpired. In truth she had done no
such
thing. But what she said, false though it may have been, appears
to have persuaded the complainant to reveal all.
[33] In
the matter of
R
v C
,
[5]
the common law requirement for the admissibility of statements of
victims of sexual assault was stated to be that the complaint
must
have been made voluntarily, not as a result of leading or suggestive
questions, nor of intimidation. This approach has been
followed in
Act 32 of 2007 where the words ‘
shall
be admissible
’
appearing in section 58 should be read as incorporating the common
law requirement of voluntariness.
[34] In
R
v Osborne
[6]
,
the court held as follows:
‘
The
mere fact that the statement is made in answer to a question in such
cases is not of itself sufficient to make it inadmissible
as a
complaint. Questions of the suggestive or leading character will,
indeed, have that effect… If the circumstances indicate
that
but for the questioning there probably would have been no voluntary
complaint, the answer is inadmissible. If the question
merely
anticipates a statement which the complainant was about to make, it
is not rendered inadmissible by the fact that the questioner
happens
to speak first…’
[35] In
my view, the complainant was not about to speak when he was spoken to
by Mathaba. He remained silent initially.
He only spoke once she
referred to the video recording. While he was not threatened with any
form of physical violence, he was
induced to speak by a false set of
facts being communicated to him by Mathaba. Given his prolonged
silence concerning the first
and second assault, it seems likely that
he would have continued maintaining that silence but for Mathaba’s
intervention.
His statement was, in the circumstances, not made
voluntarily and it ought not to have been accepted as evidence in the
court
a quo
.
Excluding that statement results in the exclusion of the reports made
by the complainant of the events comprising the first and
second
assaults as well.
[36] The
question remains whether a failure of justice has resulted from the
wrongful admission of the complaint.
The test to be applied is
whether a trial court hearing all the evidence but refusing to admit
the complaint, would inevitably
have convicted the appellant.
[7]
Put
differently, where no voluntary report of rape was made, the court
must determine whether the evidence (excluding the report)
proves the
charge of rape against an accused beyond reasonable doubt.
[37] After
considering all the evidence and the probabilities, and excluding the
evidence of the report of the
complainant, I come to the conclusion
that the evidence of the complainant was not sufficiently trustworthy
and reliable to warrant
the conviction of the appellant and her
incarceration for life. It follows that I am unconvinced that the
guilt of the appellant
was established beyond reasonable doubt. In my
view, it would be unsafe to allow her conviction and sentence to
stand.
[38] It
is finally necessary for the court to thank Mr. Marimuthu for his
thoughtful and incisive heads of argument.
They helped immeasurably
in analysing the evidence in the matter and arriving at a just
resolution of the appeal.
[39] I
would accordingly propose that the appeal be allowed and that the
appellant’s conviction and sentence
be set aside.
MOSSOP
AJ
I
agree:
SEEGOBIN
J
APPEARANCES
Date
of Hearing: 12
February 2021
Date of
Judgment: 12
February
2021
Counsel for Plaintiff:
Instructed by:
Counsel for Defendant:
Instructed by:
[1]
S
v Matshivha
2014 (1) SACR 29
(SCA) at para 11.
[2]
1981 (1) SA 1020 (A).
[3]
At 1028A-E.
[4]
S v Singh
1975
(1) SA 227
(N)
at 228.
[5]
1955 (4) SA 40
(N) at 40G – H.
[6]
1905
KB 551
at 556.
[7]
S
v T
1963 (1) SA 484
at 487F.