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[2019] ZAECELLC 4
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S v Skepe (CC01/2019) [2019] ZAECELLC 4; 2019 (2) SACR 349 (ECP) (4 February 2019)
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
EASTEN
CAPE LOCAL DIVISION – EAST LONDON
Case
No: CC 01/2019
In
the matter between:
THE
STATE
and
MABHUTI
UNATHI SKEPE
Accused
JUDGMENT
MALUSI
J
:
[1]
The accused, a 30 year old male, is facing a charge of contravening
section 3 of the
Criminal Law (Sexual Offences and Related Matters)
Amendment Act i.e. the crime of rape. It is alleged that
between May and
July 2017 and at or near
Zozo Location, Kwelerha
,
in the district of
East London
, the accused did unlawfully and
intentionally commit an act of sexual penetration with the
complainant,
AS
, a 5 year old girl, by having intercourse with
her per
vaginam
against her will and without her consent.
[2]
The accused pleaded not guilty and exercised his right to silence
regarding disclosing
the basis of his plea.
[3]
The State led the evidence of two witnesses in an attempt to prove
the case against
the accused viz
MND
and
LS
.
Before I deal with their evidence I need to address the failure of
the complainant to testify.
[4]
The complainant,
AS
, is presently 7 years old. She was
called by the State as a witness. Due to her young age and
state of development
I came to the conclusion that she would not
understand the nature and import of the oath. I invoked the
provisions of
section 164(1)
of the
Criminal Procedure Act 51 of 1977
which provides:
“
164
(1) Any person
who, is found not to understand the nature and import of the
oath or
the affirmation, may be admitted to give evidence in criminal
proceedings without taking the oath or making the affirmation:
provided that such person shall, in lieu of the oath or affirmation,
be admonished by the presiding judge or judicial officer to
speak the
truth.”
[5]
I conducted an enquiry to determine whether the child can distinguish
between truth
and falsity. At the very best her answers were
contradictory. In one breath she gave the favourable impression
she
understood the difference and the next moment she gave the direct
opposite.
[6]
I unusually gave the counsel for both parties an opportunity to
clarify the confusion,
if they so wished. The reason for this
course of action was that a ruling adverse to the case of one of them
was likely to
be made in circumstances. Regrettably, the
confusion only deepened.
[7]
I requested the assistance of
Karen Andrews
, a clinical
psychologist who provided a helpful report. After assessing the
child she concluded that the child does not have
the mental capacity
to give evidence in court. The child is confused about the
concepts of truth and lies due to negative
environmental factors that
have deleteriously affected her intellectual growth.
[8]
I made the ruling that the child is not a competent witness due to
her inability to
distinguish between truth and lies.
[9]
Reverting to the evidence,
Mrs [D..]
testified that the child
regularly visited her home to play with her grandchildren and other
neighbourhood children. On an
unspecified day she noticed that
the child was left behind when other children departed her
homestead. She took the child
to the latter’s home.
On arrival the child was reluctant to enter.
Mrs [D..]
took the child into the shack.
[10]
The child’s mother
LS
was present and obviously
inebriated. Due to the child’s distress that her mother
would leave her alone with the accused,
D
took her home.
On the following day the child made a report to her that alleged the
accused had raped the child in Linda’s
absence. On a
later day, also unspecified, the child arrived walking on her toes
with her legs wide apart. She decided
to pay for the child and
L to go to
K
as she held the view that the alleged rape was
continuing. [
Ms S..]
and the child left the
following day.
[11]
Linda testified that she had been gone to
Duncan Village
on an
unspecified Friday during July 2017. On her return home on the
following Sunday she visited her neighbours with the
child.
When the child got drowsy in the evening she took the child home.
The child refused to be left alone at home
as she alleged the accused
would rape her. Upon questioning by
Linda
, the child
alleged the accused had raped her the previous Friday.
L
confronted the accused who denied the allegation and later that night
assaulted her with a spade.
[12]
The State brought an application for the admission of hearsay
evidence of the child. The
defence opposed the application.
I admitted the hearsay evidence for the following reasons:
12.1
These were criminal proceedings. I took into account the
caution is
S
v Ramavhele
[1]
that:
“
. . . a Judge
should hesitate long in admitting or relying on hearsay evidence
which plays a decisive or even significant part in
convicting an
accused, unless there are compelling justifications for doing so.”
It was my view that the
hearsay evidence would only be relied upon if there was corroborating
evidence to support it.
12.2
The nature of the evidence was a report that alleged rape and
identified the alleged perpetrator as the accused.
Again,
corroboration would be decisive.
12.3
The evidence was tendered by the State to prove that the rape had
indeed occurred and the accused was the
perpetrator.
12.4
The reliability of both
Mrs [D..]
and
Ms [S..]
was not
at issue. The defence did not challenge that the child had made
the reports to them. The reliability of the
child was
challenged. Again I held the view that corroboration was
essential.
12.5
The child had not given evidence due to the Court’s ruling that
she was not a competent witness as
discussed above.
12.6
Mr
Giqwa
,
who appeared on behalf of the accused, submitted the general
prejudice due to lack of cross-examination was present. The
Supreme Court of Appeal has held that such would amount to prejudice
only if the case of the accused could be advanced by
cross-examination.
[2]
Mr
Giqwa
provided no acceptable submissions how the cross-examination would
have advanced the accused case.
12.7
I also took into account the other factor that part of the hearsay
i.e. allegation of rape was proven to be true
by way of a medical
report. In my view in the circumstances of the case it was in
the interests of justice to admit the hearsay
evidence.
[13]
The defence invoked the provisions of
section 174
of the Act and
applied for the discharge of the accused. The application was
opposed by the State.
[14]
The factors of this case and its presentation bring to mind the
important observation made by
Nugent JA
when he stated:
“
The prosecution
of rape presents peculiar difficulties that always call for the
greatest care to be taken, and even more so where
the complainant is
young. From prosecutors it calls for thoughtful preparation, patient
and sensitive presentation of all the available
evidence, and
meticulous attention to detail. From judicial officers who try such
cases it calls for accurate understanding and
careful analysis of all
the evidence. For it is in the nature of such cases that the
available evidence is often scant and
many prosecutions fail for that
reason alone.”
[3]
[15]
It appears the State relied unduly heavily on the hearsay evidence of
the child. Not much
effort was expended to corroborate the
hearsy or gather other circumstantial evidence to assist the court to
determine the truth
of what transpired.
[16]
It is a notorious fact that the rape of children is committed in
secrecy. The perpetrators
take great care to cover their tracks
and avoid detection.
[17]
In my view the only issue for determination is the identity of the
perpetrator. The fact
of rape is not in dispute. On that
issue the only direct evidence available is the mere say so of the
child. Even if
she testified her evidence would have been
treated with caution because she would be a single witness and a
child witness.
[18]
In the present matter more than one cautionary rule applies on the
complainant as a witness.
She is both a single witness and a
child witness. In such a case the Court must have proper regard
to the danger of uncritical
acceptance of the evidence of both a
single witness and a child witness. In dealing with such
evidence our Courts have laid
down certain general guidelines which
are of assistance when warning themselves of the danger of relying
upon a single witness
who is also a child witness. In the
ordinary course;
i)
A Court will articulate the warning in a judgment, and also the
reasons
for the need for caution in general with reference to the
particular circumstances of the case;
ii)
A Court will examine the evidence in order to satisfy itself that the
evidence
given by the witness is clear and substantially satisfactory
in all material respects . . . .;
iii)
Although corroboration is not a prerequisite for conviction, a Court
will sometimes,
seek corroboration which implicates the accused
before it will convict beyond reasonable doubt;
iv)
Failing corroboration, a Court will look for some feature in the
evidence which gives
the implication by a single child witness enough
of a hallmark of trustworthiness to reduce substantially the risk of
a wrong reliance
upon her evidence.
[4]
[19]
In my view this is a type of a case whose circumstances were aptly
described by
Mthiyane
JA
as
‘
crying
out for corroboration to provide some guarantees that the truth had
been told.’
[5]
[20]
I considered the fact that the child was reluctant to go home which
is very strange. Why
was a report not obtained from one of the
two psychologist involved in this case regarding her aversion to be
in the property on
her own? I am not satisfied that it is the
only reasonable inference that the child was raped in the property by
the accused
on the available evidence.
[21]
It is trite that the evidence of identity has to be treated with
caution. Why was further
corroborating circumstantial evidence
not obtained to bolster the scant State case?
[22]
In my view this Court would not convict the accused at the conclusion
of these proceedings unless
he incriminated himself. The
Constitution is clear that the accused may not be put to his defence
in the hope that he will
incriminate himself.
[23]
I need to make this clear
Mr Skepe,
you will be acquitted not
due to your innocence. In fact, I have a strong suspicion that
you raped this child. You
are simply benefiting from the
failure of the State to present evidence to prove your guilt beyond
reasonable doubt.
[24]
Another aspect calls for comment. The evidence of
Ms [S..]
is that she called the police to report the alleged rape. She
was told by the police to wait at the road in her locality
but the
police never came. The delay in registering the case may have
played a role in the acquittal of the accused due to
evidence not
being gathered on time.
[25]
An order is issued for the Provincial Commissioner of the police to
investigate the conduct of
the police at Bluewater Police Station
relating to CAS 03/08/2017 in allegedly failing to promptly respond
to
LS
complaint of rape of the child.
[26]
I wish to convey my gratitude to
Mrs [D..]
for her exemplary
conduct in reporting the case to the social workers and ensuring that
the child is moved to a safer environment.
The acquittal of the
accused should not detract from her commendable actions.
[27]
Accused is found not guilty and discharged.
_______________
T
MALUSI
Judge
of the High Court
Appearances
:
For
the State:
Adv Mgenge
instructed by
Director of Public
Prosecutions
GRAHAMSTOWN
For
the Accused: Mr Giqwa
instructed by
Legal Aid Board
EAST LONDON
Heard
on:
29 & 30 January 2019
and 1, & 4 February 2019
Delivered
on: 4 January 2019
[1]
1996 (1) SACR 639
(A) at 649C-D.
[2]
S v
Shaik
[2006] ZASCA 105
;
2007
(1) SACR 247
(SCA) at para 177.
[3]
S v
Vilakazi
2009 (1) SACR 552
(SCA) at para 21.
[4]
S v
Artman
1968
(3) SA 339
(A) at 340H-341C.
[5]
Swanepoel
v S
[2008] ZASCA 8
;
2008 (4) All SA 389
(SCA) at para14.