S v Carolus (32/07) [2008] ZASCA 14; [2008] 3 All SA 321 (SCA) ; 2008 (2) SACR 207 (SCA) (20 March 2008)

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[2008] ZASCA 14
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S v Carolus (32/07) [2008] ZASCA 14; [2008] 3 All SA 321 (SCA) ; 2008 (2) SACR 207 (SCA) (20 March 2008)

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THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
Case No: 32/07
REPORTABLE
In the matter between
:
ALWYN CAROLUS
Appellant
and
THE STATE
Respondent
______________________________________________________________
BEFORE
:
NAVSA, VAN HEERDEN JJA and MHLANTLA
AJA
HEARD:
18 FEBRUARY 2008
DELIVERED: 20 MARCH 2008
SUMMARY:
Indecent
assault – appellant raising alibi defence – Held complainant had
positively identified the crime scene and the appellant
as the
perpetrator of the offence and consequently that the appellant was
guilty of indecent assault – sentence of 8 years’
imprisonment
appropriate.
NEUTRAL CITATION:
This
judgment may be referred to as
Carolus
v The State
(32/07)
[2008] ZASCA 14
(20
MARCH 2008)
______________________________________________________________
JUDGMENT
______________________________________________________________
MHLANTLA AJA
MHLANTLA AJA
:
[1] The appellant was convicted by the Regional Court
for the Division of the Eastern Cape held in Port Elizabeth, on a
charge of
indecent assault involving an eight year old boy. He was
sentenced to a period of eight years’ imprisonment. An appeal
against
both conviction and sentence was dismissed by the Grahamstown
High Court (Froneman J, Schoeman J concurring) which, however,
granted
him leave to pursue the current appeal.
[2] It is unchallenged that the complainant was
indecently assaulted. The issue in this appeal is whether the state
succeeded in
proving the identity of the man who indecently assaulted
him. Important in this regard, is the question of whether the State
correctly
established the place where the incident occurred. In
respect of sentence the issue is whether such sentence is excessive
and induces
a sense of shock.
[3] The incident is alleged to have occurred on 11
December 1997. The trial only commenced some four years and three
months later,
in March 2002. The appellant was convicted and
sentenced on 28 September 2004. The appeal in the court below was
finalised in
February 2006, whilst this appeal was heard on 18
February 2008. I will in due course deal with these delays in
greater detail
[4] It is prudent at this stage to briefly set out the
facts and circumstances which led to the conviction of the
appellant.
[5] At his trial, the appellant pleaded not guilty and
denied all the allegations against him. Five witnesses testified on
behalf
of the state. These were the complainant (hereinafter referred
to as A), his mother, Mrs I D, Mr Flippie Kiewiets, who is a police

officer and A’s neighbour, Inspector Jerome Botha, the arresting
police officer, and finally Dr Theron, a medical practitioner,
who at
the relevant time performed the duties of a district surgeon. The
appellant testified and called a witness, his housemate,
Mr Marvin
Matthee.
[6] The evidence adduced on behalf of the state was
as follows. According to A, the incident occurred between 14h00 and
15h00.
He was on his way to visit his aunt, after having been sent
there by his mother, when the appellant took hold of him and dragged

him into the appellant’s house. A did not know the address of the
house but described it in some detail. He stated that the
colour of
the exterior walls was green and the front door was brown. There was
an intercom next to the front door and there were
two large trees in
front of the house. The previous owners had used the house as a tuck
shop which he patronised and had also
often visited to play with the
children who stayed there. The backyard of that house is across the
street and is clearly visible
from the front of A’s home Earlier
that day, A had seen the appellant on the back stoep of that house
consuming alcoholic beverages
with his friends. A further stated that
a church was subsequently built next to that house and he drew a plan
depicting the location
of the appellant’s house in relation to his
own home.
[7] A had been forced inside the appellant’s house,
where the latter pulled down his own trousers as well as A’s He
thereafter
indecently assaulted A by penetrating his anus with his
penis whilst they were on the sofa. A subsequently managed to flee
from
the house through an open window whilst the appellant was in
another room.
[8] A ran home Mr Kiewiets testified that he saw A
running down the street crying. A was visibly distressed and
immediately made
a brief report to his mother about his experience.
He took his mother and Mr Kiewiets to the house where the incident
had occurred.
Mrs D and Mr Kiewiets knocked on the door but no-one
responded. That night A pointed out the house to Inspector Botha,
the arresting
officer. He was thereafter taken to the hospital where
he was examined by Dr Theron. He noted some fresh tears in A’s anus
which
according to him were consistent with recent penetration Dr
Theron testified that A told him that he had been sodomised that
afternoon
by a man known to him.
[9] The appellant was subsequently arrested at his house
by Inspector Botha shortly after midnight on 12 December 1997 upon
the
description provided by A. The description included not only the
location of the crime scene, but also the physical appearance and

type of clothing worn by the assailant. According to Inspector
Botha, A had informed him that the assailant was balding, dark
in
complexion and had a ‘beard’ on his upper lip, clearly meaning a
moustache. Furthermore, that he wore a green tracksuit
pant and a
white T-shirt. It must be noted that Inspector Botha in his statement
indicated that A had reported to him that the
appellant wore a grey
top. A denied this. Inspector Botha arranged that A be brought to
the police station to identify the suspect.
A spontaneously
identified the appellant as his assailant by his facial features and
clothing before Inspector Botha could ask
him.
[10] I turn to deal with the evidence adduced on behalf
of the appellant. The appellant denied committing the offence. He
raised
an alibi defence. According to him, he and his wife were at
the time estranged and she was living at her parental home in
Selsoniville.
On the day in question he left his house at about
13h00 to fetch his family. On his way there he met Mr Marvin Matthee
(Marvin)
who, as stated earlier, was his housemate and who is related
to his wife He drank some beers with Marvin and someone called
Shobaine
whilst waiting for his wife. He eventually met his wife who,
however, declined to go with him because it was too cold for the
baby.
He was on his way to his mother’s house when he met someone
called Boetie at the taxi rank. He shared a bottle of beer with
Boetie
whilst waiting for a taxi. He spent some time with his mother
He also visited a friend’s home where he watched soccer on TV.
He
returned home very late that night and was arrested upon his arrival.
He was adamant that A was mistaken about his identity.
He suggested
that someone he knew as Raymond, who resided in the same street as he
and who also fitted the description given by
A could be the
perpetrator.
[11] Marvin’s testimony more or less mirrored the
appellant’s version. It was clear when he was testifying that, at
the relevant
time, he was not in possession of a watch and his
references to time were all estimates. He, however denied any
involvement in
the earlier drinking incident at the appellant’s
house during the morning of 11 December. He returned to the
appellant’s house
at about 20h00 and there found the police who
interrogated him. He realised that the police were in fact looking
for the appellant.
[12] Marvin did not go to the police at any time
after he learnt of the reason for the appellant’s arrest to inform
them that
the appellant could not have committed the offence, because
at the relevant time they had been elsewhere in each other’s
presence.
[13] The regional magistrate found A, who was a single
witness in respect of the events that occurred inside the house, an
honest
and credible witness. She was cautious in evaluating his
evidence and sought corroboration elsewhere She found that the
contradictions
and discrepancies between the state witnesses were not
material in nature and did not detract from the veracity of A’s
evidence.
She rejected the appellant’s version as not reasonably
possibly true. The court below accepted the magistrate’s findings
as correct and accordingly confirmed the conviction.
[14] Counsel for the appellant contended that the state
had failed to prove that the appellant was indeed the perpetrator. It
was
further argued that the court below erred in accepting the
identification of the appellant by A who contradicted himself
Counsel
also contended that the identification contained various
other irregularities.
[15]
Section 208
of the
Criminal Procedure Act 51 of 1977
provides
that an accused may be convicted of any offence on the single
evidence of any competent witness. There is no formula
to apply when
it comes to
the consideration of the credibility
of a single witness. The trial court should weigh the evidence of
the single witness and consider
its merits and demerits and, having
done so, should decide whether it is satisfied that the truth has
been told despite the shortcomings
or defects or contradictions in
the evidence
1
[16] A is also a child. In
Director of Public
Prosecutions v S,
2
the court came to the conclusion that:
‘It does not follow that a court should not apply the cautionary
rules at all or seek corroboration of a complainant’s evidence.
In
certain cases caution, in the form of corroboration, may not be
necessary. In others a court may be unable to rely solely
upon the
evidence of a single witness. This is so whether the witness is an
adult or a child.’
[17] It will be recalled that
identity is the primary issue in this case. Our courts have
repeatedly stated that evidence of
identification must be approached
by the courts with caution. In
S
v Mthetwa
,
3
the court said:
“
Because of the fallibility of human
observation, evidence of identification is approached by the courts
with some caution. It is
not enough for the identifying witness to be
honest: the reliability of his observation must also be tested”
[18] There can of course be no conviction unless
the court is satisfied that the prosecution has proved the guilt of
the accused
beyond reasonable doubt.
[19] Turning to the facts of this case, it is common
cause that A’s identification of the appellant in the police
station occurred
after he had been informed of the appellant’s
arrest. Counsel for the state conceded, in my view properly, that
not much weight
can be attached to this identification. It took place
under strange circumstances, where the rules relating to the conduct
of an
identification parade were certainly not adhered to. The entire
process took place in a police cell after A had been informed about

the arrest of the appellant.
[20] In my view, the investigation of this case was
conducted in a slovenly manner. There are clearly defined rules on
how to conduct
identification parades. The investigating officer
disregarded these rules. It is imperative that the police should
strive to
fulfil their duties with competence, diligence and
efficiency. Failure to do so may affect the rights of the accused as
well as
the administration of justice.
[21] That, however, was not the primary issue. The
crucial elements were, in my view, whether A pointed out the scene of
the crime
and the perpetrator.
[22] Counsel for the appellant submitted that A was
confused and that no reliance can be placed on his testimony. This
submission
cannot, in my view, prevail. It is evident that, despite
being traumatised, A was not confused about the location of the house

which he pointed out to his mother and to the police, nor was he
equivocal about the identity of the perpetrator His description
of
the house cannot be faulted as it, in fact, fits in with the
accused’s version. A even described the type of furniture which
was
in the lounge where the crime was committed Mr Kiewiets and Mrs D
confirmed the description of the house as pointed out to
them by A
immediately after the incident. This description was confirmed as
correct by the appellant who also conceded that the
house on the
sketch plan drawn by A and exhibited in court was his house. A, it
will be recalled, had visited that house repeatedly
in the past.
[23] In so far as the identity of the perpetrator is
concerned, there can be no doubt that the description of the
appellant and
of his clothing must have been given by A prior to the
appellant’s arrest as he otherwise could not have been a suspect.
Furthermore,
how would Mrs D, Mr Kiewiets and the police have known
about his identity. It is common cause that Marvin had earlier
encountered
the police at the appellant’s house, which was locked.
The police asked him if he lived there and he replied in the
affirmative.
They could have arrested Marvin if they had no
description of the actual perpetrator. It is quite evident that
Marvin did not
fit that description Even Marvin testified that he
realised that the police were looking for the appellant when they met
him.
[24] A’s description of the perpetrator fits in with
the appellant’s appearance. He is balding, dark in complexion and
has
a moustache, although A referred to it as a “beard”. He wore
a green tracksuit pant and a white T-shirt. It is common cause
that
the white T-shirt was underneath a grey top when the appellant was
arrested.
[25] In my view it would be a remarkable co-incidence if
A was mistaken about the identity of the appellant. The latter
himself
testified that he was the only person who was in possession
of the keys to the house. Marvin was unable to enter the house
because
it had been locked and the appellant was the only person who
controlled entry into the house.
[26] Counsel for the appellant argued that the fact that
A did not notice the appellant’s skin condition ─ the appellant
suffered
from psoriasis ─ was indicative of the fact that the
appellant could not have been the perpetrator
[27] This argument, in my view, is without merit and is
rejected. Firstly, the doctor’s medical report which was submitted
on
behalf of the appellant was made several years after the incident.
The extent of this condition in December 1997 was not established.

Second Marvin testified that the appellant only periodically suffered
from this sickness. Be that as it may, it must be borne
in mind that
this was a fleeting incident. The perpetrator was wearing his shirt
and had his trousers up to his knees. A was
traumatised. He was
himself busy dressing and also seeking an opportunity to escape from
that house. In my view the conditions
were not conducive to minutely
observe the appellant’s body.
[28] The alibi defence on behalf of the appellant was
not satisfactory. Marvin was not convincing and was selective in his
recall
of events. The appellant’s version appears to have been
retold by Marvin, whose estimate of times was clearly expedient.
[29] More importantly the alibi defence was never put
to A or to his mother by the appellant’s legal representative.
Significantly,
none of the other witnesses refered to in para [10]
above presented themselves to the police to protest the appellant’s
innocence
as one would have expected them to, nor did they testify in
court.
[30] It is equally strange that the existence of Raymond
was never brought to the attention of the police. The appellant
apparently
heard about Raymond’s existence shortly after his
release on bail on 24 December 1997; yet the police were never told
about this.
Neither, apparently, was the appellant’s legal
representative informed of Raymond’s existence which came up for
the first time
when the appellant testified. The similarity between
the appellant and Raymond was never put to A or any other state
witness for
comment. In my view the appellant would certainly have
conveyed this crucial information to the police if Raymond really
existed.
[31] I am satisfied that the magistrate, as found by
the court below, had properly assessed the evidence. She correctly
found that
the contradictions referred to were not material and did
not render the veracity of the state’s version suspect. She was
well
aware of the dangers inherent in the evidence of A as well as
the need to exercise caution. She looked for safeguards as guarantees

against mistaken identification and properly assessed all the
evidence placed before her. Accordingly the appeal against conviction

must fail.
[32] There are disturbing features of this case that we
are constrained to address. In addition to the flagrant disregard of
the
rules relating to the identification of suspects, no crime kits
were available at the hospital to enable Dr Theron to take a sample

for DNA analysis. It is imperative in sexual assault cases,
especially those involving children, that DNA tests be conducted.
Such tests cannot be performed if crime kits are not provided The
failure to provide such kits will no doubt impact negatively on
our
criminal justice system. Fortunately in this matter such negative
outcome has been avoided by the brave and satisfactory evidence
of A
as corroborated by other witnesses.
[33] The most disconcerting aspect relates to the delays
in the commencement and finalisation of this matter indicated above.
Counsel
for the state was unable to furnish any explanation She
invited comment by the court in this regard to ensure that law
enforcement
agencies and persons involved in the administration of
justice act appropriately. As I have indicated earlier, the trial
commenced
some four years and three months after the commission of
the offence. A was by then 13 years old and was called upon to recall
events that had occurred in 1997. Further it has taken more than ten
years to finalise this case. Fortunately the appellant has
been out
on bail save for a period of three months after his conviction. This
case has, however, been hanging over his head for
a very long period.
[34] There is no ostensible reason for the delays. In
certain instances the matter was postponed at the request of the
state or
the defence Be that as it may, this state of affairs is
unacceptable and is cause for grave concern. In my view an
investigation
must be conducted by the relevant authorities to
establish the root cause of these delays and to determine how a
situation of this
nature can be avoided in future. It is hoped that
these shortcomings will receive their prompt and proper attention. To
that end
we intend directing the Registrar of this court to serve a
copy of this judgment on the Minister of Justice and Constitutional
Development, the Minister of Police and also on the National Director
of Public Prosecutions for their attention.
[35] I turn now to consider the appeal against sentence.
Counsel for the appellant submitted that the magistrate had failed to
take
into account all mitigating circumstances and in the result
imposed a sentence that was excessive. In this regard counsel
submitted
that the appellant is a first offender, a school teacher
and sole provider for his family; that he has already been punished
as
he was dismissed as a result of the conviction; that he has
suffered a considerable amount of stress during the trial as a result

of the delays caused in finalising the matter and, lastly, that A has
not suffered any permanent psychological injuries and has
been able
to continue with his studies.
[36] I do not agree with these submissions. The offence
of indecent assault is very serious and in this case the complainant
was
a young boy of eight years of age. Assaults of this nature are
now defined as rape in terms of
s 3
of the
Criminal Law (Sexual
Offences and Related Matters) Amendment Act 32 of 2007
. The
prescribed sentence in respect of a rape involving a child under the
age of 16 years is set out in
s 51
of the
Criminal Law Amendment Act
105 of 1997
. The appellant can count himself fortunate that the
provisions of Act 32 of 2007 do not apply in his case since the
offence was
committed in 1997. Assaults of the kind perpetrated
against A are the most invasive of assaults. This was a degrading,
humiliating
and traumatic experience for A. In my view, the fact
that the appellant is a father and a school teacher can be regarded
as an
aggravating factor. The community expects people like the
appellant to protect the children.
[37] The appellant is not the
only person to have been affected by these delays A and his family
also had to wait for a period
of more than ten years for the final
outcome of this case. The court recognises that the trial should have
been conducted in an
expeditious manner. Counsel for the appellant
referred us to the decision of
S
v Stephen
1994 (2)
SACR 163
(W) where the accused had been in custody for six months
awaiting trial and the court held that a period of imprisonment
whilst
awaiting trial was the equivalent of a sentence of twice the
length. In my view the facts of that case can be distinguished from

the facts in this appeal because the appellant has been out on bail
pending the finalisation of the matter throughout these delays,
save
for a period of three months after his conviction.
[38] In my view, the magistrate took all the relevant
factors into account when considering sentence. The sentence imposed
is commensurate
with the seriousness of the crime, the circumstances
of the appellant, as well as the interests of society In the result
there
is no basis for this court to interfere. It follows therefore
that the appeal against sentence also fails.
[39] The Registrar of this court is directed to serve
copies of this judgment on the Minister of Justice and Constitutional
Development,
the Minister of Police and on the National Director of
Public Prosecutions.
[40] In the result the following order is made:
(a) The appeal against conviction and sentence is
dismissed.
_______________________
N Z MHLANTLA
ACTING JUDGE OF APPEAL
CONCUR: ) NAVSA
JA
) VAN
HEERDEN JA
1
S v Sauls
1981 (3) SA 172
(A) at 180E-G. See also Schwikkard and Van Der
Merwe:
Principles of
evidence
2ed (2000) p 519 and authorities cited therein.
2
2000 (2) SA 711
(T) at 716 B-D.See
also
Schwikkard
pp
518 and 519: “Each case must be considered on its merits and this
might involve a finding on whether the evidence of the
child witness
concerned is such that it can for purposes of a conviction safely be
relied upon.”
3
1972 (3) SA 766
(A) at 768