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[2019] ZAKZPHC 73
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S.E.D v S (AR 563/18) [2019] ZAKZPHC 73; 2020 (1) SACR 78 (KZP) (8 November 2019)
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REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE NO: AR
563/18
In
the matter between:
S[….]
E[….] D[….]
Appellant
and
THE
STATE
Respondent
ORDER
In
the result, the following order is made:
(a)
The appeal in respect of both the convictions are dismissed and the
convictions are
confirmed.
(b)
The appeal against sentence succeeds in part and the sentence imposed
by the court
a quo is substituted with the following:
“
In count 1, the
appellant is sentenced to eight years’ imprisonment and in
count 2, to three years’ imprisonment. The
sentence in count 2
is to run concurrently with that in count 1.”.
APPEAL
JUDGMENT
Delivered
on: 8 November 2019
Masipa
J (Naidu AJ concurring):
Introduction
[1]
On 3 September 2014, the appellant was convicted by the Regional
Court, Pietermaritzburg
on one count of sexual assault and one count
of attempted rape. He was sentenced to ten years’
imprisonment in respect
of the sexual assault and three years’
imprisonment for the attempted rape with the sentences ordered to run
concurrently.
This appeal is pursuant to leave to appeal being
granted by the court a quo in respect of both conviction and
sentence.
The Facts
[2]
The evidence leading to the appellant’s conviction and sentence
is briefly set
out below. The complainant, was 13 years of age
when she testified. In view of this, the court a quo conducted a
competency
test. The complainant was asked if she knew what the oath
was and she replied that she did not. The court a quo then ventured
into
asking her further questions, some of which were the following:
‘
COURT
All right, but tell me, do you know
what it means to take the oath in court?
COMPLAINANT
No, Your Worship’.
Further,
on in the record, it reads as follows:
‘………
COURT
All right, L[....], do you know what it means to tell the truth?
COMPLAINANT
Yes.
COURT
Please tell me what does it mean.
COMPLAINANT
The truth is something that one tells
when he has seen it.
COURT
All right, when I tell about something
that I did not see, what would I be telling?
COMPLAINANT
That would be a lie.
COURT
Okay, now, L[....], are children then
of your age allowed to tell the truth?
COMPLAINANT
Yes, Your Worship.
COURT
Who taught you that?
COMPLAINANT
My mother, Your Worship.
COURT
Are they allowed to tell lies?
COMPLAINANT
No.
COURT
Why?
COMPLAINANT
They will get a hiding if they tell
lies.
COURT
Who will give them hiding, L[....]?
COMPLAINANT
The parent or the teacher.
COURT
Okay, why would they get the hiding?
COMPLAINANT
They are telling lies.
COURT
Is it wrong – why would that be?
Is it something bad to tell lies that parents will give you a hiding?
COMPLAINANT
Yes, Your Worship.
COURT
Who taught you that,
L[....]?
COMPLAINANT
My mother.
COURT
Do you know why is it bad to tell
lies?
COMPLAINANT
Yes, Your Worship.
COURT
Why is it bad, L[....]?
COMPLAINANT
I can end up causing conflict amongst
people.
COURT
Okay, do you know what is the
religious consequences of telling lies when you tell them in church?
COMPLAINANT
Yes, Your Worship.
COURT
Yes, what do they tell you?
COMPLAINANT
They say that can cause conflict
amongst people and they can end up fighting.
COURT
Will that happen if you tell the
truth?
COMPLAINANT
No, Your Worship.
COURT
Is there anything that you, Ms
Aboobaker, want to ask the child on her competency?
NO
QUESTIONS ARISING FROM PROSECUTOR
NO
QUESTIONS ARISING FROM MR KHUMALO
COURT
Thank you, the Court is satisfied that
the witness is competent. Though she is of tender age of 13 years,
she is in a position to
distinguish between telling the truth and
lies and understand the consequence of telling the lies.
THE
COURT WILL THEN PROCEED TO SWEAR THE WITNESS
.
L[….] N[….] D[….]
(Sworn states)’.
[3]
The complainant’s evidence was that on 28 September 2012 she
was playing with
her friends in the veranda. She went into the house
to take a bath leaving her friends who continued to play outside. She
finished
bathing and when she was putting her underwear on, she heard
the door opening. She then observed her paternal uncle, the appellant
herein, entering her father’s room being the room she was
currently in. He held her and placed her on top of the bed. He
closed
her mouth pressed her hands and feet down and took off her underwear.
He licked her vagina and breasts, unzipped his pants
and at this
point released the grip from her mouth. When he was about to insert
his penis into her vagina, she said ‘Here
is my mother’.
The appellant then got off her and ran away. According to the
complainant, the appellant was heavily under
the influence of
alcohol.
[4]
She reported the incident to Sipho Gaza, her father’s friend,
who arrived shortly
thereafter and he advised her to lock herself in
the house. After doing this, she heard a knock on the door and
realised it was
her father. When her father entered the house, she
reported the incident to him and he too was under the influence of
alcohol.
The next morning, she reported the incident to her mother
A[….] M[….] M[….] who called a family meeting.
The
appellant’s sister, the complainant’s paternal aunt,
the complainant’s maternal uncle and the complainant’s
mother attended the meeting. According to the complainant, the
complainant attended and disputed that the incident had occurred.
[5]
It seems that nothing transpired from the meeting. One day when the
complainant was
sent by her mother to fetch water, the appellant
stopped her and asked why she had reported him. She reported this to
her mother.
Social workers visited her school and she reported the
incident to them and they in turn reported the matter to the police.
[6]
When Ms M[....] testified, she gave evidence, which was consistent
with that of the
complainant. On the day of the incident, she was in
Durban for a church service. When she returned home, the children
cheered for
her as they thought she was not returning home on that
day. After entering the house, the complainant told her that she
wanted
to talk to her. She asked what happened and the complainant
relayed the incident to her. She added that the complainant mentioned
that the appellant offered her money of approximately R200.
[7]
She confirmed that after the complainant relayed all the events
including that she
had reported the incident to her father, she
called a family meeting. Ms M[....] also reported the incident to her
husband who
commented that the appellant had left him at the bottle
store to get up to mischief. It appears that he did nothing else
thereafter.
Prior to the commencement of the meeting, which was the
following day, the appellant arrived at her home looking for her
husband.
The appellant was called into the meeting and was asked as
to what he had done. The appellant’s response was that he did
not know what he had done the previous day. The complainant was asked
to and relayed the incident. The appellant apologised and
his sister
said it was a family issue and they should not discuss it again. The
incident was not reported to the police.
[8]
Ms M[....] confirmed that the complainant had informed her that the
appellant had
confronted her again thereafter. It seemed like the
appellant was continuously following the complainant. As a result, Ms
M[....]
decided to relocate. She confirmed further that the
complainant reported the matter to the social workers who had visited
her school.
Consequently, the complainant was removed from her care
and taken to Lidgetton, a home. According to Ms M[....], she had a
good
relationship with the appellant.
[9]
Ntokozo Zondi testified that she is a social worker and met the
complainant during
a school visit she conducted during May 2013. Part
of her duties involves dealing with abused children, and when such
abuse comes
to their attention, they remove children from that
environment and place them into homes. They also have to report the
case within
24 hours of becoming aware of it. She confirmed that
following the talk they presented at the complainant’s school,
the complainant
confided in her and told her that she was sexually
abused by her paternal uncle.
[10]
Ms Zondi then met with Ms M[....] who confirmed that she was aware of
the matter and had informed
the complainant’s father about it
but nothing was done. Ms M[....] said her husband was abusing
alcohol. She also mentioned
the family meeting where the issue was
discussed and they were told to keep it a secret. Ms Zondi
interviewed several family members
who confirmed the meeting. She
reported the matter to the police as she established that the
complainant’s parents had not
done this and had kept it a
secret as instructed at the family meeting. She confirmed further
that the complainant was placed in
a temporary care facility. As at
the time of Ms Zondi testifying in court, the complainant had
returned to the care of her mother,
as she was the one who was
supportive to the child while she was at the care facility.
[11]
When the appellant testified, he denied any involvement in the
incident and said that on the
day in question, he was working. He
also denied that there was ever a family meeting held to discuss the
issue. He could not provide
a response as to why he had not raised
this version when the State led its witnesses. According to him, the
complainant and her
mother were just picking on him as there was bad
blood between him and Ms M[....]. He said that Ms M[....] had
schooled the complainant
to tell lies about him after they had
quarrelled and said she should lay a charge against him. He could not
explain why the matter
was never reported to the police until the
social worker did so.
The points in limine
[12]
Two points in limine were raised for the appellant. The first was
that there was a duplication
of the charges and secondly that the
court a quo administered an oath when it ought to have admonished the
complainant.
[13]
In respect of the duplication issue, it was argued that sexual
assault and attempted rape constituted
one criminal act and that
there was a single intent. In view of this, it was prejudicial to
convict the appellant twice for the
same offence. It was submitted
that the rule against duplication was to prevent multiple convictions
arising from culpable facts
which constitute one offence. In this
regard Ms
Fareed
for the appellant relied on
R
v Kuzwayo
1960 (1) SA 340
(A) at 344B and
S
v Grobler en
’
n
Ander
1966 (1) SA 507
(A) at
513B and 523B. She also relied on
R
v Johannes
1925 TPD 782
which set out two tests when dealing with the issue of
splitting or duplication of convictions. The first test is whether
two acts
are done with a single intent, which constitutes one
continuous criminal transaction, and the second test is whether the
evidence
necessary to establish one crime involves the proving of
another crime.
[14]
Ms
Dyasi
for the respondent argued that there was no
duplication as the elements of the two offences differed. While
sexual assault included
among others direct or indirect contact with
a female’s breast or genital organs through the mouth of
another person; attempted
rape would be an attempt to have sexual
intercourse. The appellant was about to penetrate the complainant if
she had not mentioned
that her mother was home. It was argued that it
was apparent from the evidence that the complainant had progressed
beyond the stage
of preparation and was commencing with the process
of the rape.
[15]
There is a rule against splitting of charges. See
S
v Grobler
1966 (1) SA 507
(A). Where there is such a close connection between all the acts
complained of, they should be treated
as a single continuous event.
This occurs where all the actions upon which the charges are based
are committed at the same
time and place against the same
complainant. See
S v Wehr
1998 (1) SACR 99
(C). In
S v Benjamin en ’n
Ander
1980 (1) SA 950
(A) at 956E-H), however, the court stated that where the evidence
which is necessary to establish
the one charge also establishes the
other charge, there is only one offence.
If
one charge does not contain the same elements as the other
,
there are two offences. (Emphasis added)
[16]
There are many instances where perpetrators start off with an intent
to commit a specific offence
but end up committing other offences.
Despite the close connection between the acts, two crimes would be
committed due to the varying
nature of their elements. One such
example is where several perpetrators embark upon committing an armed
robbery and in the process
of committing such an offence someone is
shot and killed. It can be argued that if one was to follow the
single continuous event
test, then only one charge can be preferred
whereas if one was to be guided by the test which focuses on the
elements of the crime
test, at least two offences can be preferred.
[17]
Nowadays, the crime rate is very high and it is mostly serious crimes
which are being committed.
Public interest and public policy calls
for an approach which will ensure that perpetrators are adequately
charged and prosecuted.
In my view, the single intent falls short of
meeting the requirements of our society while the elements of the
crime test would
satisfy this. The elements of the crime test were
raised with Ms
Fareed
who conceded that if this test was to be
applied, it was apparent that the offence of sexual assault embodied
different elements
to those of attempted rape. While sexual offence
includes direct or indirect contact between the mouth of one person
and the genital
organs or anus of another person or, in the case of a
female, her breasts, attempted rape includes an attempted penetration
of
a vagina by a penis. Consequently, she accepted that there were
two separate offences committed.
[18]
As regards the issue of the oath, Ms
Fareed
submitted that the
reason evidence is given as prescribed under the Criminal Procedure
Act 51 of 1977 (‘the CPA’) in
s 162 (under oath); s 163
(affirmation) or s 164 (admonishment) is to ensure that the evidence
is reliable. She argued that where
a child cannot distinguish between
truth and untruth, then such a child is not a competent witness. It
is therefore the duty of
the presiding officer to satisfy himself
that a child can distinguish between the truth and untruth. See
S
v Raghubar
2013 (1) SACR 398
(SCA) paras 4-5.
[19]
The provisions of s 162 of the CPA is peremptory except where
stipulated exceptions apply. Consequently,
where a witness has not
been sworn in, affirmed or admonished, her evidence is inadmissible.
See
S v Matshivha
2014 (1) SACR 29
(SCA) paras 10-11. The lack
of understanding of the import of the oath is what triggers the
application of s 164. These findings
must be preceded by an enquiry
by a judicial officer. After the enquiry, the judicial officer should
establish whether the witness
can distinguish between truth and lies
and if the outcome is in the affirmative, admonish the witness. See
Matshivha
and
Director of Public Prosecutions, Transvaal v
Minister of Justice and Constitutional Development, & others
2009 (4) SA 222
(CC) paras 165-167.
[20]
The appellant faults the court a quo for administering an oath to a
child witness. In this regard,
it is submitted that the court a quo
failed to establish and satisfy itself that the complainant
understood the nature and import
of the oath; secondly, that it
failed to make a finding that the complainant did not understand the
nature and import of the oath;
thirdly, that the court a quo
misdirected itself in swearing in the complainant under oath knowing
well that she did not know the
nature and import of the oath. In my
view, the third point is inconsistent with the first one. If it is
accepted that the court
a quo misdirected itself by swearing in the
complainant whilst being aware that she did not understand the oath,
then it follows
that the court a quo would have established and
therefore would have satisfied itself that the complainant did not
understand the
import of the oath.
[21]
It was argued that the complainant was not properly admonished to
speak the truth as envisaged
in s 164 and consequently, that her
evidence was inadmissible. Ms
Dyasi
argued that since the complainant had indicated that she did not
understand what it meant to take the oath, the court a quo did
not
have to establish her capacity to understand the oath. The enquiry
that followed was sufficient to determine the complainant’s
ability to distinguish truth and falsity. See
Haarhoff
& another v Director of Public Prosecutions, Eastern Cape
2019 (1) SACR 371
(SCA)
para 30.
[22]
It is common cause that the court a quo did not make a finding that
the complainant did not understand
the nature and import of the oath
as envisaged in
Matshivha
. It is apparent from the evidence
that the court a quo was not satisfied that the complainant
understood the import and purport
of the oath, I say this because it
conducted an enquiry as envisaged in s 164.
[23]
In
Matshivha
the complainant was neither admonished nor sworn
in and the process, which was followed to determine whether she could
tell the
difference between truth and lies, was inadequate. The
evidence was therefore unreliable. This is distinguishable from the
present
case since in the current case, the complainant was took the
oath. The question therefore is whether the absence of a finding on
whether the complainant understood the import of the oath and the
subsequent swearing in of the complainant vitiates the entire
process. To answer this question, it is necessary to revert to the
purpose of testifying under oath, affirmation or admonishment.
The
decisions
of Director of Public
Prosecutions, Transvaal
and
Raghubar
set out the purpose as being to ensure that
evidence is given reliably.
[24]
It is clear that the court a quo undertook a process to ensure that
the complainant’s evidence
was reliable. Although at the end of
that process, there was no finding by the court a quo, it was
satisfied that the complainant
was able to distinguish truth from
lies and was alive to the serious consequences of telling lies. In
Mangoma v S
(155/13)
[2012] ZASCA 205
(2 December 2013) para 5
the court stated the following:
‘…
First, it should
be noted that it is clear from the record that the witnesses were
sworn in and that thereafter a very curt enquiry
about whether each
understood the meaning of telling the truth followed. Had there been
any doubt concerning the ability of the
child witnesses to understand
the nature and import of the oath the precaution set out in
s 164
of
the
Criminal Procedure Act 51 of 1977
ought to have been followed.
The enquiry in relation to the witnesses’ ability to understand
the importance of telling the
truth appears to have been resorted to
after the oath had been administered. The sequence was wrong. That
notwithstanding, there
is nothing on the record to indicate that a
doubt about the witnesses’ ability to understand the truth
ought to have been
entertained….’.
[25]
In
Haarhoff
para 27, the court relying on
S v B
2003(1)
SACR 52 (SCA) para 15 stated as settled law that an express finding
was not a prerequisite to admonishing a witness. The
court a quo was
satisfied that the witness was competent to give reliable evidence.
This and the fact that the complainant testified
under oath as is
contemplated in
s 162
; and the nature of evidence given by the
complainant, proved that she was a competent. While the content of
the oath administered
is not apparent from the record, I am satisfied
that the requirements of
s 162
have been met. Since the complainant
clearly understood the importance of telling the truth and the
consequences of a failure to
do so, no substantive injustice
occurred.
[26]
I am of the view that the complainant was a competent witness and
that prior to allowing her
evidence, the court a quo was satisfied
that her evidence was reliable. On a consideration of the facts and
relevant law, I find
that the court a quo correctly admitted her
evidence.
The
argument on merits and the analysis
[27]
It is common cause that the complainant was a single witness in
respect of the two offences.
This was adequately considered by the
court a quo which applied the test set out in
S
v Sauls & others
1981(3) SA 172 (A) at 180E-G to weigh all elements pointing to the
guilt of the accused against those indicating his innocence,
taking
into account inherent strengths and weaknesses, probabilities and
improbabilities and then to decide whether the truth has
been told to
sustain the exclusion of doubt in the State’s case. The court a
quo also considered the provisions of
s 208
of the CPA, which
provides that an accused may be convicted of any offence on the
single evidence of any competent witness. The
court a quo also relied
on the decision of
S
v Abdoorham
1954
(3) SA 163
(N).
[28]
Having considered applicable principles regarding single witnesses,
the court a quo mentioned
that the complainant was also a young
child. It was however satisfied that her evidence was clear and
satisfactory in all material
respects and was flawless. The court
found corroboration of the complainant’s evidence in the
evidence Ms M[....] and Ms
Zondi.
[29]
Ms
Fareed
argued that the evidence of the complainant was not
reliable as she did not initially mention that the appellant had
sexually assaulted
her or attempted to rape her and only mentioned
this following extensive probing by the prosecutor. Secondly, the
State failed
to call Sipho Gasa who the first report was made to as a
witness and also failed to call the complainant’s friends as
witnesses.
It was submitted that there were contradictions in the
evidence of the complainant and her mother on whether the
complainant’s
friends left the veranda or were chased by the
appellant. Secondly, whether the complainant reported the incident to
Ms M[....]
on the night of the incident or the following day.
Thirdly, the complainant mentioned that at the meeting, the appellant
denied
the allegations and never mentioned that the appellant
apologised which was inconsistent with Ms M[....]’s evidence.
Fourthly,
the complainant made no mention of being offered money
while Ms M[....] testified that the appellant offered the complainant
money
and the complainant declined the offer.
[30]
Ms
Dyasi
argues that the inconsistencies in the evidence of
the complainant and Ms M[....] were immaterial. She submitted that
his was a
sign that their evidence was not rehearsed and that there
was no conspiracy to falsely implicate the appellant. This should be
considered together with the evidence of Ms Zondi who was an
independent and objective witness. Although not a first report, she
interviewed all relevant parties and her evidence confirms the
version of the complainant together with that of Ms M[....].
[31]
As regards the medical evidence, I agree with Ms
Fareed
argued
that this did not take the matter further since the conclusion of
Doctor Vather was general in nature. It was never the
complainant’s
evidence that there had been any penetration. Despite the medical
test being conducted in excess of six months
after the incident, the
medical evidence is as could be expected.
[32]
The approach in dealing with the evidence of a single witness as set
out in earlier decisions
is to weigh up all the elements pointing
towards the guilt of the accused against those, which are indicative
of his innocence.
See
S v
Sauls & others
1981 (3) SA 172
(A) at 180 and
S
v Van der Meyden
1999
(1) SACR 447
(W)
.
The
evidence of the complainant was credible, consistent and reliable.
[33]
It is for the State to prove the guilt of the accused while the
accused is merely required to
provide a version, which is reasonably
possibly true. The appellant denies that he committed the offences he
was charged with.
He suggests that there was bad blood between his
family and the complainant’s family and that was the reason he
was falsely
implicated in this matter. Ms M[....] denied that there
was bad blood when the offence was committed and said that they had
good
relations. This is observable from the fact that she did not
report the matter to the police when she first learnt of it and
approached
various family members to address it. They then held a
family meeting where an instruction was issued that they should not
discuss
the matter with anyone else. Of course, Ms M[....] complied
with this instruction although her decision was wrong.
[34]
Even after she left the area of her in-laws, she did not report the
matter to the police. This
is clearly not the conduct of someone
having bad relations with the appellant. The suggestion by the
appellant that Ms M[....]
‘put the complainant up to the
reporting’ cannot be correct since if this was so; she would
have ensured that the incidents
were reported immediately after she
became aware of them. The version of the appellant is improbable and
cannot be reasonable possibly
true. Accordingly, the court a quo was
correct in rejecting it.
[35]
When considering the issue of sentence, an appeal court will not
interfere with the discretion
of the court a quo unless the
discretion was exercised improperly or that the sentence is vitiated
by irregularity or misdirection,
is disturbingly inappropriate, or is
clearly wrong. See
S v Romer
2011 (2) SACR 153
(SCA) para 22
and
S v Pistorious
2014 (2) SACR 314
(SCA) para 30.
[36]
On the issue of sentence, Ms
Fareed
argued that on count 1,
the court a quo misdirected itself when it sentenced the appellant in
terms of
s 51(1)(b)
part 3
of the
Criminal Law Amendment Act 105 of
1997
since there was no prescribed minimum sentence applicable. In
the absence of the minimum sentence, Ms
Fareed
argued that the
court a quo ought to have sentenced the appellant in accordance with
common law. Ms
Dyasi
correctly conceded to the misdirection by
the court a quo. Not only does the offence not fall under the
provisions of the 1997 Act,
the provision referred to by the court a
quo does not exists in that Act. Ms
Fareed
and Ms
Dyasi
agreed that the appropriate sentence under the circumstances of
this case would be a sentence of eight years imprisonment. I agree
with them in this regard.
[37]
As regards count 2, Ms
Fareed
argued that the court a quo
overemphasised the seriousness of the offence and the interest of the
community at the expense of the
appellant’s personal
circumstances. Those personal circumstances being that he was 38
years of age; had four minor children
who were financially dependent
on him; earned a salary of R3 000 per month; was a first offender and
was epileptic. She argued
that these called for this court to
intervene and amend the sentence of three years’ imprisonment
imposed by the court a
quo. Ms
Dyasi
argued that the
sentencing in count 2 could not be faulted.
[38]
Although this issue was not raised with counsel and was not raised by
counsel in their argument,
a reading of the record reveals with when
the appellant committed both offences, he was under the influence of
alcohol. According
to the complainant’s evidence, he was
heavily under the influence of alcohol. While it cannot be said that
his capacities
were impaired as no evidence was led in this regard,
the issue cannot be overlooked especially taking into account the
complainant’s
own evidence. The issue ought to have been
considered by the court a quo and its failure to do so is another
misdirection.
Having said this, I am of the view that the
three-year sentence imposed in count 2 was reasonable and the fact
that the sentence
in count 2 was ordered to run concurrently with
that in count 1 is sufficient to consider this fact.
Order
[39]
In the result, the following order is made:
(a)
The appeal in respect of both the convictions are dismissed and the
convictions are
confirmed.
(b)
The appeal against sentence succeeds in part and the sentence imposed
by the court
a quo is substituted with the following:
“
In court 1, the
appellant is sentenced to eight years’ imprisonment and in
count 2, to three years’ imprisonment. The
sentence in count 2
is to run concurrently with that in count 1.”.
Masipa J
I Agree
Naidu AJ
Appearances:
For
the Appellant:
Ms
Fareed
Instructed
by:
Legal Aid South Africa
For
the Respondent:
Ms
Dyasi
Instructed
by:
Director
of Public Prosecution
Matter
heard:
18
October 2019
Judgment
delivered:
8 November 2019