About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2019
>>
[2019] ZAWCHC 94
|
|
D.J v S (A588/2019) [2019] ZAWCHC 94; 2019 (2) SACR 613 (WCC) (31 July 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
Republic
of South Africa
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case
No. A588/2019
Before: The Hon. Mr Justice Binns-Ward
and
The
Hon. Mrs Justice Fortuin
Date of hearing: 24 May 2019
Judgment:
31 July 2019
In the
matter between:
D
J
Appellant
and
THE
STATE
Respondent
Order of the court
:
1.
The appellant’s appeal against his
convictions is upheld and the convictions and sentence, including the
order that the appellant’s
particulars be registered in the
National Register for Sex Offenders, are set aside.
2.
It
is directed, however,
that the appellant
shall be forbidden from resuming contact with the complainant until
the desirability of, and appropriate attendant
conditions for, any
such resumption have been investigated and reported on by a social
worker, and that any resumption of contact
shall thereafter occur
only in accordance with the social worker’s recommendations,
alternatively in accordance with an order
obtained from a court.
JUDGMENT
[1]
The appellant appeals against his
conviction in the regional court at Mitchell’s Plain on
one
count
of contravening s 3 of the
Criminal Law (Sexual Offences and Related Matters) Amendment Act 32
of 2007 (‘rape’)
and
one
count
of contravening s 5 of the
said Act (‘sexual assault’). Both counts were
treated as one for sentence and
the appellant was sentenced to
15 years’ imprisonment, of which five years’
imprisonment was conditionally suspended.
It was also ordered
that appellant’s particulars be registered in the National
Register for Sex Offenders. The trial
court refused an
application by the appellant for leave to appeal. The appeal
was brought with leave obtained from this court
(per Desai ADJP
and Papier J) on petition. Leave to appeal was granted in
respect of both conviction and sentence,
but, as mentioned, the
appellant prosecuted the appeal only against the convictions.
[2]
The charges brought against the appellant
alleged (i) that ‘on or about 2015 (
sic
)
and at or near Mitchell’s Plain …[he] unlawfully and
intentionally commit[ted] an act of sexual penetration with
(
sic
)
the complainant, to wit [K.J.] (4 years old) by forcing his
fingers into her vagina several times without the consent of
the said
complainant’ and (ii) that on or about 2015 (
sic
)
and at or near Mitchell’s Plain …[he] did unlawfully and
intentionally sexually violate the complainant to wit [K.J.]
(4 years
old) by licking her vagina without the consent of the said
complainant’.
[3]
Despite the appellant having been charged
with only
one
count of rape, the prosecutor, without objection from the appellant’s
legal representative, led the complainant to give evidence
that the
appellant had inserted his finger into her vagina on
two
separate occasions on separate days, being the 17
th
and 30
th
December 2015, respectively. Again, without objection from the
appellant’s attorney, or any check by the magistrate,
much of
this questioning was of a leading nature.
[4]
At one stage of her evidence, the
complainant stated that the alleged licking of her vagina that was
the subject of the charge of
sexual assault had occurred on a
different day to the rape. Then, later in her testimony, she
said that it had happened at
the same time. She was not asked
by either the prosecutor or the court to elucidate whether this had
been on one occasion
or twice.
[5]
Under cross-examination, her evidence about
whether the alleged vaginal penetration had occurred once or twice
was wholly haphazard,
as evinced in the following exchange with the
defence attorney:
Mr DAVIES: Yes but now you said earlier to us your daddy
only did it once to you. Now you are saying it is two times.
INTERMEDIARY: Earlier you said to us that your daddy did
only scratch in your tootie one time but now you are saying he did
two
times. --- He did it two times … (intervenes)
Mr DAVIES: Which one is the right one? Excuse me?
INTERMEDIARY: Say again. --- He did it two times.
Mr DAVIES: Scratch in your tootie?
INTERMEDIARY: Did he scratch in your tootie two times?
--- Yes, no one time, one time.
Mr DAVIES: So it is one time now again?
INTERMEDIARY: So he scratch (
sic
) in your tootie
one time? --- Yes.
[6]
It has to be said, however, that when the
statement that the complainant made to the police was put to her in
cross-examination,
it emerged that she had mentioned two separate
incidences of penetration by the appellant of her vagina with his
finger; on the
one occasion he was said to have had long fingernails
and on the other his nails were described as having been short.
The
complainant’s mother’s evidence had it that the
complainant had made a report to her about the aforementioned two
incidences
on 17 December 2015, which, if correct, would suggest
that the alleged incident on 30 December would have been the
third
occasion on which the complainant had been molested. The
police statement actually indicated that the complainant had in fact
reported that she had been finger raped on four occasions in total.
However, in her evidence in court the complainant said
this was
incorrect, and that she had lied to the police.
[7]
This is not to suggest that the complainant
was necessarily untruthful – although her concession that she
had lied to the
police is of concern, coming from a witness found by
the magistrate to be able to distinguish truth from falsehood.
And it
is unfortunate that neither the prosecutor nor the magistrate
investigated the admission to ascertain whether or not it might have
been qualified. But it does, however, highlight the difficulty
that often presents as an inherent problem with the reliability
of
the evidence of very young children, especially where it is not
corroborated or in accord with inherent probability.
[8]
It is also on any approach most
unsatisfactory that an accused person charged with a single offence
is confronted at trial with
evidence that the offence in question is
in point of fact alleged to have occurred on diverse occasions.
Such a situation
undoubtedly bears materially on the fairness of the
trial. I had cause to address this very issue extensively in a
judgment
(in which Yekiso J concurred) in
S
v Mponda
2007 (2) SACR 245
(C),
especially at paras. 7-16, and it is also discussed in the commentary
on s 94 in Du Toit et al.,
Commentary
on the Criminal Procedure Act
.
[1]
It is worrying that notwithstanding the admonitions uttered in
that judgment, there is evidence of continuing sloppiness
in the
preparation and presentation of these types of case for prosecution.
In the current case it begs the question of just
which of the
incidents described in the complainant’s evidence was the
appellant actually convicted? Cf.
Speek
v S
[2012] ZAFSHC 69
,
W
v S
[2014] ZAECGHC 118;
2015 (2) SACR
483
(ECG) at paras. 32-35 and
S v
Leopeng and Another
1966 (4) SA 484
(A).
[9]
The state was no doubt in possession of the
complainant’s police statement when it formulated the charges
against the appellant.
The unsatisfactory character of the
charge sheet was therefore inexcusable in the circumstances. It
is perhaps reflective
of inexperience or ineptitude on the part of
the prosecutor. Certainly, as counsel who represented the state
at the hearing
of the appeal was constrained to acknowledge, the
nature of the prosecutor’s examination and cross-examination of
the witnesses
at the trial gave the impression that she was lacking
in experience.
[10]
Cases involving the leading of evidence
from very young witnesses are invariably difficult, as effectively
adducing the evidence
of such witnesses often requires considerable
skill.
[2]
This is especially so in cases concerning alleged sexual offences.
As Nugent JA observed in
S v
Vilakazi
[2008] ZASCA 87
;
[2008] 4 All
SA 396
(SCA) ;
2009 (1) SACR 552
;
2012 (6) SA 353
, at para. 21, ‘
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. In those circumstances each detail can be
vitally important.
’
[11]
There is no basis in principle to attach a
lower standard of proof or a less exacting assessment of the evidence
in a case in which
a child is the complainant than in any other
criminal case. To do so would be to expose accused persons in
cases in which
the complainants are juveniles to a greater chance of
unjust conviction than persons in cases in which the complainants are
adults.
There can be no warrant for such a regime. The
vulnerability of young complainants to the secondary trauma of
testifying
in court about matters such as sexual molestation is
catered for by provisions such as those in s 170A of the
Criminal Procedure
Act that allow their testimony to be given through
an intermediary from a room where they are not confronted face to
face with
their abusers, and s 153 which allows the protection
of
in camera
proceedings; not by applying a different standard of proof in respect
of the accused. The courts have, however, frequently
stressed
the need for the rights of vulnerable people, in particular women and
children, to be respected and protected, and especially
against
sexual violence; see e.g.
S and Another
v Acting Regional Magistrate, Boksburg: Venter and Another
[2011]
ZACC 22
;
2011 (2) SACR 274
(CC);
2012 (1) BCLR 5
at para 23.
As
pointed out in
Director of Public
Prosecutions, Western Cape v Prins and Others
[2012] ZASCA 106
;
2012 (2) SACR 183
(SCA);
2012 (10) BCLR 1049
;
[2012] 3 All SA 245
at para. 2, an important means of doing so
is ‘by the
effective prosecution
of those who infringe those rights’ (emphasis supplied). It
is therefore of serious concern that difficult matters
involving
issues of considerable gravity that require more than just average
competence to be properly presented come to be allocated
to
apparently inexperienced and insufficiently skilled prosecutors.
[12]
The complainant was the daughter of the
appellant. She was born of the marriage between the appellant
and the complainant’s
mother, C. At the time of the
alleged commission of the offences the complainant’s parents
were in the process of obtaining
a divorce and no longer lived
together at the same address. It was common ground that the
separated parents were not on good
terms with each other at the
relevant time. It emerged in the evidence that the appellant
had had to approach the Family
Advocate to obtain periodic access to
the child after his wife had moved out of the common home taking the
complainant with her.
It also emerged that the appellant had
previously applied for a domestic violence interdict against the
complainant’s mother
and grandmother, although the
circumstances pertaining to that were not explained in the evidence
at the trial. The complainant’s
mother in turn described
the appellant as having been an abusive spouse, although it would
seem from the evidence that the nature
of the alleged abuse that the
witness complained about was psychological rather than physical in
character.
[13]
The complainant’s mother was the
child’s principal caregiver, but by arrangement the child
regularly spent time twice
a week at the appellant’s house. It
was common ground, however, that in December 2015 the complainant had
been spending
more time at the appellant’s house than had been
formally regulated between the parents. This was because it was
convenient
for the mother, who went out to work, to ask her husband
to look after the child. This was reportedly due to the
unavailability
during that period of the child’s grandmother
who normally took care of the child. The appellant was
available to step
into the breach because he was unemployed at the
time. The offences in respect of which the appellant was
convicted were
found to have been committed at the appellant’s
house when the complainant had been spending the day with him there.
[14]
Three witnesses testified in support of the
state’s case and the appellant gave evidence in his defence.
The three state
witnesses were the complainant, who was five years
old when she testified 10 months after the occurrence of the alleged
events,
the complainant’s mother and a surgical registrar at
the Red Cross War Memorial Children’s Hospital who had
conducted
a medical examination of the complainant.
[15]
Distilled to their essence, the grounds of
appeal were that the court a quo erred in finding that the state had
discharged the onus
on it to prove the appellant’s guilt beyond
reasonable doubt and that the magistrate had misdirected himself in
finding that
the complainant was a satisfactory witness having regard
to a number of inconsistencies in her evidence and her admitted
history
of fabricating allegations of abusive conduct by her father.
The point was also taken that the trial court had been misdirected
in
its assessment of the import of the evidence of the medical doctor.
It was also contended that the magistrate had erred
in finding that
the complainant was a competent witness.
[16]
The complainant’s evidence was led
through an intermediary, after the magistrate was satisfied that the
young child was astute
to the difference between fact and fiction and
had warned her of the importance that she should be truthful in what
she told the
court and admonished her in terms of
s 164(1)
of
the
Criminal Procedure Act 51 of 1977
. It is relevant to draw
attention to certain aspects of the complainant’s responses to
the magistrate’s questioning
of the complainant for the purpose
of satisfying himself as to her competence as a witness.
[17]
The complainant, who first appeared at
court on 27 October 2016, said her birthday was the following
day, 28 October, when
it is in fact 26 January. (She was
born on 26 January 2011.) She also incorrectly stated that
she would be
turning five on that date, when she had actually turned
five nine months earlier. The questioning in this regard went
as
follows:
COURT: Okay now [K] you said you are five years old.
When is your birthday?
INTERMEDIARY: When is your birthday?
WITNESS: My birthday is tomorrow.
INTERMEDIARY: Tomorrow?
WITNESS: (No audible answer)
COURT: So that is the 28
th
of October, is
that right?
INTERMEDIARY: The 28
th
of October?
WITNESS: Yes.
COURT: Will you be six tomorrow?
WITNESS: I am going to be five years old.
COURT: Okay so you are still four years old for one more
day, is that right?
INTERMEDIARY: Okay so you are still four years old for
one more day?
WITNESS: Yes.
COURT: So it is one more sleep and then you five?
INTERMEDIARY: One more sleep and then you will be five
years old?
WITNESS: Yes.
[18]
When asked by the magistrate where she
stayed, she said Mitchell’s Plain, and when asked where in
Mitchell’s Plain,
she complained to the intermediary ‘
in
… Ma’am why you always confuse me
?’
When pressed for the name of the road in which she lived (apparently
[…] B. Street, Rocklands, Mitchell’s
Plain), she said
‘
Strandfontein
’
(which is a neighbouring suburb).
[19]
When asked the name of the school she
attended, the complainant said ‘
It
is uhm, it is … . I am in … (indistinct)
’.
(Heard by the magistrate as ‘
grade
naught
’.) When the
magistrate then asked again ‘
Yes
what is the name
’ (of the
school), the complainant replied ‘
We
live in Mitchells Plain
’.
It emerged later from the complainant’s mother’s evidence
that the complainant was in point of fact not
enrolled at any school
when she testified in October 2016, having been removed from school
in June of that year.
[20]
The complainant told the magistrate that
she believed in God and that God wanted people to be good rather than
bad. When asked
‘
What do you
think where will God send people that are bad?
’,
she responded ‘
I think they will
sing different kind of song to God
’.
The magistrate did not seek any clarification of the import of this
enigmatic reply, which was not a cogent response
to his question.
[21]
Asked ‘
If
you tell a lie to your teacher and your teacher tell (sic) your mommy
that you did lie to her, what will your mommy do
?’,
she replied ‘
My ma did went school
but my mommy didn’t take me to school only my ma. My
teacher don’t hit me only when is sleep
…(indistinct)
only when I don’t sleep she don’t hit me only when I
don’t sleep she hits me.
’
[22]
I have some doubt in the circumstances as
to whether the magistrate could be properly satisfied as to the
competence of the witness
to give evidence. As indicated in the
examples given in the preceding paragraphs, some of her answers to
the questions he
directed during the exercise that he had to
undertake into her competence were complete non-sequiturs and others
demonstrably false.
I accept that the object of the questioning
was to determine her competence (described in
S
v L
1973 (1) SA 344
(C) at p. 349
as being possessed of the intelligence to be able to distinguish the
import of truth from that of falsehood
[3]
- as to which I am willing, with some hesitancy, to defer to the
trial court’s assessment), not her credibility. But even
if her
competence as a witness were to be accepted, her performance under
the initial questioning remained something that the magistrate
was
bound to take into account in his assessment of the reliability of
the evidence that she gave. It was undoubtedly a pointer
towards the necessity for it to be approached with a heightened sense
of caution; cf
S v Raghubar
[2012] ZASCA 188
;
2013 (1) SACR 398
(SCA) at para. 5, where Tshiqi JA held that testimony heard
to determine a witness’ competence to give evidence
could also
bear on ‘the weight (value) to be attached to that evidence’.
[23]
It was very evident on the record that
whilst the complainant’s evidence was generally coherent when
she was being asked leading
questions, she did not do well when
answering non-leading questions. For example, under
cross-examination the complainant
gave an affirmative answer when
asked whether she was familiar with the concept of weeks and months,
but when asked what month
it was at that time she was unable to say.
[24]
Of particular concern in this case is that
it became apparent that the complainant had a recent history of
telling dreamt up stories
about being mistreated by the appellant.
She admitted that she had previously made a false report to her
mother that she
had been assaulted by the appellant with a hockey
stick. Her evidence in that regard under cross-examination went
as follows:
INTERMEDIARY: There was a mark on you, then you told
your mommy that your daddy did hit you with a hockey stick while he
was practising.
---Yes.
Mr DAVIES: Now why were you lying about it?
INTERMEDIARY: Why did you lie to your mommy? --- Because
I want to.
COURT: Can you say that again. Why did you lie to
your mommy about the hockey? INTERMEDIARY: Why did you lie? --- I
don’t
know.
The
complainant also acknowledged that she had lied in making a report to
her mother that the appellant had left her alone in a
motor vehicle.
[25]
There were also indications in the
complainant’s evidence that it had been influenced by external
input. A salient example
was her use of the word ‘
ougat
’,
which in her evidence in chief she attributed to the appellant, but
which under cross-examination admitted was a word that
she had
learned from her mother. Under re-examination by the
prosecution the complainant said that had been told by her ‘
mommy
and her ma
(? grandmother)’
what to say in court about her father. In answer to the
question ‘
Did your mommy and your
ma say what you must say about your daddy?
’,
the complainant replied ‘
Yes.
They said I must say that my daddy scratch my tootie. (Indistinct)
can you tell … (indistinct) so we can make
quick because me I
want to go home because I want you guys to make quick, quick, quick.
You make quick, quick, quick.
’
[26]
The magistrate asked the complainant about
her attribution of the word ‘
ougat
’
in questioning directed at the witness after the prosecutor and the
appellant’s legal representative had completed
their
questioning. By means of leading questions he got the
complainant to confirm her initial evidence attributing the use
of
the word to her father. He refused, however, to allow the
defence attorney to ask any questions arising on that point.
[27]
The complainant was extraordinarily
assertive in certain respects in the witness box. There were
occasions on which she told the
intermediary not to confuse her,
commanded the cross-examiner to hurry up, and pressed the magistrate
to have done with his questions.
I have to say that I found her
precociousness in these respects strikingly unnatural, and to some
extent disturbing.
[28]
On a reading of her evidence I am left with
a strong feeling of disquiet that while it may have had a germ of
truth, it was demonstrably
unreliable to the extent of leaving me in
doubt. This is material because the appellant’s
conviction was founded on
the direct evidence of not only a single
witness, but also a very young child; giving strong reason for the
evidence to be treated
with especial caution.
[29]
The complainant’s mother testified
that she had received a report from the complainant on 17 December
2015 that the appellant
had inserted his finger into her vagina and
licked her private parts. The complainant told her that this
had occurred on
two occasions; one when the appellant’s
fingernails were long and the other when they were short. The
report was forthcoming
after the child had complained of a stinging
feeling in her private parts while her mother was bathing her.
The mother did
say, however, that this had not been the first time
that the complainant had complained about discomfort in her private
parts.
She had made a similar report in June that year, when
the presence of an infection had been diagnosed and medically
treated.
The mother testified that when she heard the report
she had physically examined the child’s private parts, but had
not found
any visible evidence that the child had been interfered
with.
[30]
Despite receiving a report on 17 December
of two instances of grave impropriety by the child’s father,
the complainant’s
mother did nothing about it until 2 January,
when she took the child to a doctor. Her initial explanation
for her inaction
was that she had been ‘shocked’, and had
not known what to do. The doctor concerned, who was not
identified (other
than as ‘
the GP
in our area
’) and did not testify
at the trial, apparently referred the child to be examined at the Red
Cross War Memorial Children’s
Hospital, where she was seen by
Dr Mohammad Etalleb, who completed a J88 medical examination report
in respect of which he later
testified at the instance of the state.
[31]
The complainant’s mother did say that
she sent the appellant a message on 18 December that she wanted
to speak to him
about something (‘
ek
wil met jou praat
’). She
said that the appellant did not respond to the message. She
thereafter allowed the child to visit her
father on Sunday, the 27
th
December and Wednesday, the 30
th
December. The appellant had collected the child on these
occasions, but despite the message that she had sent on the 18
th
,
the mother did not speak to him about the complainant’s
report. She explained that she had not confronted the appellant
on either of these occasions or refused to allow him to take the
complainant because she felt she could not do that ‘
until
I don’t know for sure that is what he did to her
’.
The complainant had actually asked if she could visit her father on
the 27
th
instead of on the 26
th
,
which would have been his usual day of access.
[32]
The complainant’s mother explained
her eventual decision to take the child to be examined as being due
to a report the child
made to her after the visit to her father on
30 December that the appellant had done it again. As
already touched upon,
on the mother’s evidence, this would
therefore be the third occasion on which the appellant had behaved
indecently with his
daughter.
[4]
She did not take the complainant to be examined immediately, however,
because, so she said, she had various church commitments
and then New
Year’s Day intervened.
[33]
The complainant’s mother said that
the complainant had to stay at the hospital until 4 January,
although the reason for
that was unclear. When Dr Etalleb gave
evidence he indicated that if there were ‘high suspicion’
of sexual assault
the child would be admitted to the ward so that he
or she could be interviewed by a social worker later. It did
become apparent
from an incidental reference in the course of the
doctor’s evidence that the complainant was indeed interviewed
by a social
worker at the hospital. The complainant’s
mother said that she did not make a report to the police, but was
contacted
by a police officer on the 5
th
of January and told to bring the child to the police offices to make
a statement.
[34]
The complainant’s mother said that
she believed her child. She denied that the complainant had
ever made up stories
against her father. Her denial was
contradicted by the evidence of both the complainant and the
appellant. When it
was put to the complainant’s mother
that the appellant considered that the child had been put up by her
mother and grandmother
into making a false report, she declaimed that
she would never have put her child through a court case if she did
not believe her.
In my view it is telling in this regard that
the mother took the child to a doctor to see if the child’s
reports might be
corroborated. That is hardly the conduct of
someone who is intent on falsely incriminating someone else.
Had she intended
to falsely incriminate, one would expect her to have
gone straight to the police.
[35]
The mother was then taxed on the fact that
she had taken so long to do anything about the reports. I am
sceptical about the veracity
of the mother’s evidence that she
did not do anything about the report for more than two weeks because
she was ‘shocked’.
One would expect a parent
receiving such a report to be outraged at the serious abuse of their
child, and to be moved to do something
about it immediately –
more especially in the circumstances of this case where the parents
were estranged, as there would
not have been any complicating
feelings of conflict of loyalty. Furthermore, the mother also
had her own mother to turn to
for moral support if she needed it.
It is clear that in point of fact the mother had other priorities.
She put her
church commitments, for example, before any concern to
take the child for medical examination.
[36]
A more probable reason for the mother’s
delay about reacting to the report was her uncertainty about its
truth. In my
view, the mother’s statement that she felt
she could not do anything about the reports ‘
until
I don’t know for sure that is what he did to her
’
is confirmatory of my assessment of the inherent probabilities in
this regard. It is apparent from the evidence that
the mother,
notwithstanding her equivocation on the subject, was by that time
aware of the complainant’s propensity to spin
yarns about her
father abusing her. The magistrate did not deal with the effect
of that propensity at all in his judgment,
other than, somewhat
counter-intuitively, to treat the complainant’s admission to it
as confirmatory of her honesty.
[37]
Dr Etalleb found an irregularity
(‘suspected old vaginal tear’) on the complainant’s
hymen. He said that
this could have been caused by an old
injury, but did not give any indication of how historic. He
said it could not have
been recent (‘
so
no reason
(
sic
,
an obvious misrendering of ‘recent’)
thing
happened
’). The events
testified to by the complainant had happened in the preceding two
weeks. It was not clarified with
the doctor whether that would
count as ‘recent’ or not.
[38]
The doctor said that the irregularity could
have been the after-effect of a healed injury caused by the insertion
of a finger into
the complainant’s vagina. It could also
have been caused by scratching if the complainant had ‘an old’
skin or vaginal infection. As mentioned, the complainant had
had such an infection about six months previously. The
doctor
pointed out that the child did not have an infection at the time he
examined her, but his point must have been that the
old lesion could
have been related to an infection in the past, for it would not make
sense to relate a
current
infection - unless it were chronic - as causative of a lesion of
historic
origin. The medical evidence was therefore neutral and
inconclusive.
[39]
As the magistrate noted, the doctor also
conceded under cross-examination that if there had been a history of
repeated vaginal penetration
with a finger he would expect to find
more extensive symptoms of irregularity on the complainant’s
hymen, including what
were referred to as ‘clefts and bumps’.
He found no such symptoms. That was a factor that should have
been
recognised as calling into doubt the complainant’s
evidence.
[5]
There is no indication, however, that it was appropriately taken into
account.
[40]
Whilst
on the subject of the medical evidence, I find it unsatisfactory that
the likelihood or not of there being visible evidence
of the vaginal
penetration of a four year-old child by an adult male’s finger
shortly after the occurrence of the incident
was not explored with
the doctor either by the prosecutor or the magistrate. The
evidence that he gave concerning one of
the possible causes of the
hymenal irregularity was predicated on the child having scratched
herself because of an infection.
As already discussed, the
irregularity was on any approach not considered to be the result of a
recent occurrence. And the
dimensions of a very young child’s
finger are considerably smaller than those of an adult male. In
the context of the
mother’s evidence that she had physically
examined the complainant on 17 December and found no visible
signs of interference,
I would have thought it to be an important
detail to ascertain from the doctor how feasible it would have been
for penetration
of the child’s vagina by an adult male’s
finger to leave no visible symptoms so soon after the event.
The consequences
in respect of the issue of reasonable doubt of such
failures to explore obvious lines of enquiry with expert witnesses
when they
are available are illustrated in the matter of
R
v Manda
1951 (3) SA 158
(A), to which I
shall return in another connection later in this judgment.
[41]
The appellant denied the allegations
against him. He described the history of his fraught
relationship with his wife, including
allegations by her that that he
had assaulted the child. He also described how, unhappy with
the condition in which he had
found the child while in the custody of
her mother in the latter part of 2015, he had reported the matter to
the social welfare
office for it to investigate. He said that
he had always had a good relationship with the child. He also
testified
that he shared his accommodation with two other persons and
it was rarely that the complainant was alone with him in the house
when she visited.
[42]
Asked by his attorney where he thought the
allegations against him came from, the appellant responded ‘
I
have no idea. I think it is … I can only think it is
hatred or it is probably because of the divorce situation with
the
house story and the money story. That is all I can think of.
I have no idea where she
[the
complainant’s mother]
coughs this
up
’.
[43]
The cross-examination of the appellant took
the matter no further. The prosecutor had nothing to work on
other than the word
of the complainant against that of the appellant.
[44]
The magistrate taxed the appellant with the
child’s mother’s evidence about how the initial report
came out as a result
of the child complaining about a burning feeling
in her private parts when she was being bathed on the night of 17
December 2015.
The appellant responded ‘
According
to my knowledge she always had a urine problem from small age already
and she was constantly taken to the doctor for the
urine problem
because the mother and me couldn’t wash her with soap and in
her private parts because whenever she was washed
the private parts
it was burning. That is to my knowledge Your Honour.
’
As mentioned, there was indeed evidence that the complainant had been
treated for a urinary tract infection earlier
in 2015, but the matter
was not explored in any detail when the complainant’s mother
gave evidence.
[45]
In his judgment, the magistrate said that
the state’s case was that the appellant had penetrated the
complainant’s vagina
with his finger on two occasions and on
the second of those occasions had also licked her private parts.
The charge sheet
did not convey as much, and nor did the evidence
with any clarity. Indeed, it was perhaps not surprising
therefore that the
magistrate proceeded to relate the evidence as
having been that the alleged licking incident was reported as having
attended the
first, not the second incident of fingered penetration.
The evidence of the complainant was that the licking had happened
on
the second occasion (on the 30
th
December), but the complainant’s mother testified that it had
been reported to her to have happened on the first occasion
(on the
17
th
December). As the magistrate’s muddled recital of the
complainant’s evidence ironically reflects, confusion reigned.
[46]
The magistrate was astute to the fact that
there were two mutually conflicting versions before the trial court.
Early in his
reasons he noted that the medical evidence was that the
lesion on the complainant’s hymen could have been ‘
caused
by anything
’; in other words that
it was inconclusive. But during the course of a somewhat
rambling judgment that gives the impression
that he was grappling
with some difficulty to arrive at a coherently reasoned conclusion,
the magistrate graduated from his original
correctly stated
assessment of the effect of the medical evidence to the completely
unwarranted conclusion later on that ‘[t]
he
medical evidence suggests that the complainant was in some form
sexually violated …
’.
In something of a non-sequitur, he completed the sentence by saying
‘…
and even though when the
Court sits with two conflicting versions, it is expected or rather
the honesty and the openness and the
trustworthiness, reliability of
a witness is of cardinal importance
’.
The magistrate did not explain how he could reject the appellant’s
evidence as ‘dishonest’ in the
face of the difficulties
with the complainant’s evidence and the issues in the case that
were not properly explored and left
cause for reasonable doubt.
[47]
It is trite that a compartmentalised
assessment of the evidence in a criminal trial is misdirected; cf.
e.g.
S v Van Aswegen
[2001]
ZASCA 61
;
2001 (2) SACR 97
(SCA) at para. 8, endorsing
S
v van der Meyden
1999 (1) SACR 447
(W);
1999 (2) SA 79
at 82C-E, and see also
S
v Trainor
[2002] ZASCA 125
;
[2003] 1
All SA 435
(SCA),
2003 (1) SACR 35
at paras. 8-9. In the
current case the only basis upon which the trial court could be
justified in rejecting the appellant’s
evidence as not
reasonably possibly true was if it could hold, on the basis of an
assessment of all the evidence, that the testimony
of the complainant
could be accepted as factually correct beyond reasonable doubt.
Majiedt AJA’s dictum in
Damgazela
v The State
[2010] ZASCA 69
(26 May
2010) at para. 12 illustrates the position in which the trial court
found itself in this matter:
The trial court was faced with two mutually
destructive versions of the events on the night in question. One of
them must be false.
In such circumstances, apart from considering the
credibility and reliability of the witnesses, it was justified in
assessing the
probabilities of the two versions and to reach a
finding as to which one is true and which one is not.
It could, of course, only
dismiss the defence version as false in the event that it reached
that conclusion beyond reasonable doubt.
And it had to do so after
giving consideration to the evidence before it as a whole
.
(Underlining supplied for emphasis.)
[48]
The magistrate rehearsed the trite
principal by which he was bound to judge the case, namely that the
state had to prove the appellant’s
guilt beyond reasonable
doubt. He quoted in this regard from the judgment of Plasket J
in
S v T
2005 (2) SACR 318
(E) at para 37, at which the learned judge,
expressing well-entrenched principle, observed ‘
When
a court finds the guilt of an accused has not been proved beyond
reasonable doubt that accused is entitled to an acquittal,
even if
there may be suspicions that he or she was indeed the perpetrator of
the crime in question.’
[49]
The
magistrate also recorded that he was conscious that proof of the
offence in the current matter was dependent on the evidence
of a
single witness and ‘
a child of a
very, very young age
’. He
quoted extensively in this respect from the judgment of the appeal
court in
Woji v Santam
Insurance Co Ltd
1981 (1) SA 1020
(A) which, as Diemont JA remarked in the
introductory paragraph, addressed the question of ‘the weight
to be given to
testimony of children in a civil action’.
Obviously, a more exacting assessment is required in the
context of the standard
of proof required in a criminal case; cf.
Woji
at
1028A-B. In
Woji
,
the court made the trite point that, just as with the evidence of any
witness, a child’s evidence must be assessed with
regard to the
witness’s evident powers of observation, capacity of narration
and trustworthiness (which I understand to denote
reliability).
The learned judge of appeal added (at 1028E), however, that ‘
At
the same time the danger of believing a child where evidence stands
alone must not be underrated.
’
[6]
(The latter remark was recognisably predicated on
the seminal observation by Schreiner JA in
R
v Manda
supra, at p. 163, that ‘
…
the dangers inherent in
reliance upon the uncorroborated evidence of a young child must not
be underrated. The imaginativeness and
suggestibility of children are
only two of a number of elements that require their evidence to be
scrutinised with care amounting,
perhaps, to suspicion. …
The trial court must fully appreciate the dangers inherent in the
acceptance of such evidence
and where there is reason to suppose that
such appreciation was absent a court of appeal may hold that the
conviction should not
be sustained. The best indication that there
was proper appreciation of the risks is naturally to be found in the
reasons furnished
by the trial Court
.’)
[50]
In holding that the trial judge had erred
in not accepting the probative value of the children’s evidence
in
Woji
because
it had not been independently corroborated, the appeal court noted in
that case there was nothing in their demeanour or
credibility that
detracted from its value. Unfortunately, the same cannot be
said in the current matter. In
Woji
’s
case, furthermore, the young witnesses’ evidence was supported
by the probabilities. By contrast, there are
no inherent
probabilities in favour of the state’s case in the current
matter, and there is nothing outside the evidence
of the complainant
and her father that determinatively supports the version of the one
over that of the other.
[51]
While on the subject of the complainant’s
tender age, in his discussion of the caution with which he was
enjoined to assess
her evidence the magistrate made no reference to
the non-sequitur answers to his questions when he had sought to
determine her
competence to give evidence other than under oath or
affirmation. Instead, the magistrate plainly predicated his
assessment
of the complainant’s evidence on the approach that
Diemont JA applied to the witnesses in
Woji
.
That was unconvincing in the very different circumstances of the
current case. The inconsistences and discrepancies
in the
complainant’s evidence in the current case were numerous and
material, and they fell to be seen against the background
of a
history of admittedly false allegations. The value of a report
by a child who has a history of giving false reports
is seriously
undermined.
[52]
The court below proceeded to find that the
evidence of the complainant was ‘
very
clear
’ that incidents of vaginal
penetration had occurred ‘
on two
occasions as far as she can remember
’.
I think it is evident from what I have related of the complainant’s
evidence above that that was not a justified
observation. The
complainant was less than clear, and she in fact contradicted herself
more than once on the matter.
I am conscious that inconsistency
is not always reason enough to reject a witness’ evidence.
The effect of it has to
be adjudged in the context of the total
picture. But in the current matter there were troubling
features that in my view
made it difficult for the trial court to be
able to convincingly downplay the effect of the inconsistencies on
its ability to find
the state’s case proven beyond reasonable
doubt.
[53]
As already noted, the magistrate recorded
the complainant’s admission that she had fabricated stories of
abuse against her
father in other situations, but failed to reason
what effect these admissions had in his assessment of the reliability
of her evidence
in connection with the charges. On the face of
it the complainant’s demonstrated conduct of making up stories
about
how her father had mistreated her should have been very
troubling to the trial court in the circumstances. One of the
difficulties
the magistrate had in this regard is that neither he nor
the prosecutor explored with the complainant why she had lied against
her father on those occasions. The magistrate also recorded the
complainant’s admission that people had told her to
come to
court and ‘
say these things
against her father
’, but in that
regard too, he said nothing to indicate how he treated of that
admission in deciding to accept her incriminating
evidence. He
also did not explore or deal with the complainant’s admission
that she had lied to the police about the
number of times the
appellant had sexually abused her. He was also misdirected in
his apparent understanding and treatment
of the medical doctor’s
evidence.
[54]
The magistrate justifiably identified the
complainant’s evidence about the difference in the length of
the appellant’s
fingernails at the times that he had inserted
his finger into her vagina as a detail that was unlikely to have been
invented and
therefore added verisimilitude to her allegations.
This was a factor that could not, however, be regarded as, by itself,
decisive of whether her evidence could be accepted and that of the
appellant rejected. It had to be taken into account and
weighed
with regard to the evidence as a whole, including the complainant’s
demonstrated inclination to imaginativeness and
fantasy.
[55]
As is evident from the discussion, there
are a number of factors in the matter both in favour of and against
the state’s case.
That is what makes this a particularly
difficult and troubling case. The question at the end of the
day remains whether the
appellant’s guilt was proved beyond
reasonable doubt.
[56]
The magistrate said that he could not ‘
find
upon a conspectus of all the evidence that the version by the
complainant is a fabrication
’.
That was to misstate the nature of the enquiry he had to undertake,
which was to determine whether the state had
proved its case beyond
reasonable doubt –a positive test, not a negative one.
[7]
On the other hand he dismissed the appellant’s evidence as a
‘bare denial’. It is difficult to see
what else an
innocent person in the appellant’s position could have said.
And in any event the magistrate’s characterisation
of the
denial as ‘
bare
’
was not altogether justified. The appellant did establish that
he had been the subject of relevant falsehoods by the
complainant on
recent previous occasions and also that the child’s interaction
with him took place in the context of acrimony
between her parents in
the context of their pending divorce and reports made by the
appellant to the social welfare authorities
about how the complainant
was being cared for by her mother and grandmother. Those were
facts. His suggestion as to
what might have inspired the
complainant to fabricate the allegations in issue against him could
of necessity only be speculation.
But that could not be held
against him unless there was sufficient reason to hold the
complainant’s evidence was true beyond
reasonable doubt, and
his evidence, equally clearly, false.
[57]
The judgment in
Manda
,
mentioned earlier,
[8]
illustrates that it does not suffice for the purposes of convicting
an accused person if the evidence establishes ‘a case
of
suspicion, even of strong suspicion’, but still leaves room for
reasonable doubt.
In
Manda
,
in which the evidence directly implicating the accused was also that
of young children, even the fact that the accused had been
found to
have been dishonest in his defence was not enough in the
circumstances of that case to extinguish the doubt that the Appellate
Division had about the safety of a conviction based on the
uncorroborated evidence of young children that was not consistent in
all respects. I appreciate that comparisons can be odious, but
in my assessment the scope for reasonable doubt in the light
of the
uncorroborated evidence of the very young complainant in the current
matter is actually greater than it was in
Manda
’s
case. Not only was the complainant’s evidence
uncorroborated, it was given by a witness of at best borderline
competence and with a history of manufacturing false reports of
abusive conduct by the appellant. It was also inconsistent
in
material respects. As was the case in
Manda
,
some of the causes for concern about the quality of the state’s
case might have been addressed had the prosecutor or the
court
enquired further into them during the trial. I think especially
in this respect of the absence of any enquiry as to
why the
complainant had made up stories about the appellant’s conduct
on previous occasions or into the import of her admission
that she
had lied to the police. At the end of the day, because they
were not, the reasonable doubts to which they gave rise
were not
allayed, with the result that although there are grounds for
suspicion the appellant was entitled to an acquittal.
[58]
In the result, for all the aforegoing
reasons, I would uphold the appellant’s appeal against his
convictions and set the convictions
and sentence aside.
[59]
I
do not think that we can let the matter rest there, however. I
consider that it would not be appropriate for the outcome
of the
appeal to be misconstrued so as to entitle the appellant to resume
his previous access to his young daughter without proper
enquiry into
the best interests of the child in the circumstances. His
acquittal on appeal is not a warrant of innocence,
it is a finding
that his guilt was not established beyond reasonable doubt. I
therefore think we are duty bound in the circumstances
to include in
the court’s order directions towards protecting the child’s
rights. See s 28 of the Constitution
and
DPP,
Transvaal v Minister for Justice and Constitutional Development
supra, at para 74. In my
judgment this would be effectively achieved by directing that the
appellant shall be forbidden
from resuming contact with the
complainant until the desirability of and appropriate attendant
conditions for any such resumption
have been investigated and
reported on by a social worker, and that any resumption of contact
shall thereafter occur in accordance
with the social worker’s
recommendations, alternatively in accordance with an order obtained
from a court.
[60]
The
following order will issue:
1.
The
appellant’s appeal against his convictions is upheld and the
convictions and sentence, including the order that the appellant’s
particulars be registered in the National Register for Sex Offenders,
are set aside.
2.
It
is directed, however,
that the appellant
shall be forbidden from resuming contact with the complainant until
the desirability of and appropriate attendant
conditions for any such
resumption have been investigated and reported on by a social worker,
and that any resumption of contact
shall thereafter occur only in
accordance with the social worker’s recommendations,
alternatively in accordance with an order
obtained from a court.
A.G. BINNS-WARD
Judge of the High Court
FORTUIN
J:
[61]
I have read the judgment of my brother
Binns-Ward J and I agree with the order that he proposes. I
herewith incorporate paragraphs
[59]
and
[60]
of his judgment into mine. I am
in particular in agreement with his criticism of the manner in which
the prosecution dealt
with the case. However I wish to differ
with the weight attached to the competence of the complainant as a
witness.
In my view the prosecution’s failure should be
the deciding factor in this appeal. Accordingly, here follows
my judgment.
A.
INTRODUCTION
[62]
The appellant, D J, was convicted in the
Mitchell’s Plain Regional Court of one count of rape and one
count of sexual assault
after pleading not guilty. The
appellant was sentenced to 15 (fifteen) years’ imprisonment of
which 5 (five) years
were suspended on certain conditions.
[63]
This is an appeal against both convictions,
after leave was initially refused by the court
a
quo
, and was only obtained on petition
to this court.
B.
GROUNDS OF APPEAL
[64]
The grounds of appeal can be summarised as
follows:
·
The complainant was not a competent
witness, as she was only 4 years old;
·
The magistrate did not properly
apply the cautionary rule in respect of single and child witnesses;
·
The magistrate incorrectly evaluated
Dr Etalleb’s evidence as corroborating the evidence of the
complainant; and
·
The magistrate erred in not
accepting the appellant’s version of a collusion against him by
the complainant’s mother.
C.
COMMON CAUSE BACKGROUND FACTS
[65]
The appellant is the biological father of
the complainant who was 4 years old at the time of the alleged
incident and 5 years old
at the time of her testimony. The
complainant’s mother was separated from the appellant and
divorce proceedings were
in progress. The complainant was in
the care of her mother and maternal grandmother.
[66]
By agreement between the appellant and the
mother, the complainant spent every Wednesday and Saturday with him
at his house.
During December 2014, the complainant spent
almost every day with the appellant, because he was not working at
the time.
[67]
On return from one of her visits with the
appellant, the complainant complained to her mother during a bathing
session of a burning
sensation in her private parts. The
complainant visited the appellant one more time after this. Her
mother took her
to a doctor approximately 6 days later and was then
referred to Red Cross Children Hospital (“Red Cross”),
where she
was seen by Dr Etalleb, who reported and testified in court
that there was an irregularity in the complainant’s hymen, but
that it was old. Further, that such an irregularity could be
caused by scratching a skin infection in the vaginal area.
He
was clear about the fact that there was no infection at the time of
the examination.
E. THE APPELLANT’S VERSION
[68]
The
appellant
was the only witness for the defence. It is his version that he
did not sexually assault his daughter, and that this idea
was a
fabrication by his estranged wife. Further, that his daughter
at her tender age did not have the necessary vocabulary
to articulate
the alleged incident, e.g. “
scratch
in my koekie
” and “
lick
my koekie
”.
[69]
It is further the appellant’s version
that the mother used the complainant and these charges to get at him
because of the
messy divorce they were involved in. The
appellant admitted to washing the complainant before she returned
home after each
visit, but denied sexually assaulting the complainant
in any way.
[70]
It is his version that a few months before
that alleged incident, he complained to a social worker about the way
the mother took
care of the complainant and intimated that he was
able to take better care of the complainant. It is, according
to him, therefore,
improbable that he would have hurt his daughter.
RESPONDENT’S
VERSION
[71]
It is the
complainant’s
version that on 27 December 2014, when she visited her father (the
appellant), he removed her pants and scratched in her private
parts
with his fingers. She recalls that this happened before and
that his finger nails were long on one occasion, and cut
short on the
next occasion. She could not specify the dates, but was clear
that it happened on more than 1 occasion.
She also testified
that on one occasion he licked her private parts and wiped her with a
black facecloth.
[72]
She went home to her mother after the last
incident and complained about a burning sensation in her private
parts while her mother
was busy washing her. She showed her
mother where her father touched her and also explained the licking by
indicating with
her tongue.
[73]
This part of the complainant’s
evidence was corroborated by her mother, except for the dates which
only the mother was able
to give.
[74]
In addition to these pieces of
corroboration, her
mother
testified as follows:
·
The complainant complained about a
burning sensation when she tried to bath her.
·
She reported the complainant’s
story to her own mother.
·
She sent the appellant a WhatsApp
message to ask him about the incident, but sent the child to him
again for her regular visit after
this.
·
She finally took the complainant to
her private doctor a few days later and this doctor referred her to
Red Cross.
·
At Red Cross the complainant was
examined by Dr Etalleb, who also testified.
[75]
The mother denies that she colluded with
anyone to falsely implicate the appellant. She testified that
she did not report
the incident immediately as she was too shocked to
do anything, and that she did not really know what to do about these
shocking
allegations.
[76]
Dr Etalleb
testified
that he examined the complainant on 5 January 2015. He was new
at the Red Cross Hospital and did not have much gynaecological
experience. In fact, he was a general practitioner. He
reported an irregularity in the hymen at 5 o’ clock.
According to him it was an old irregularity. He was not asked
by the defence nor the state what an “old” irregularity
means. He did concede that this type of irregularity can be
caused by an infection, but was certain that the complainant
did not
suffer from an infection at the time.
APPLICABLE
LEGAL PRINCIPLES
[77]
It is trite that a court of appeal will
only interfere with a conviction by a lower court if it is satisfied
that the trial court
made wrong factual findings. In this
regard see
S v Monyane and Others
[9]
.
It is further trite that the State
bears the burden of proof beyond reasonable doubt. See
S
v Phallo and others
[10]
.
In
casu
the competence of the complainant is one of the grounds of appeal.
In terms of s164(1) of the Criminal Procedure Act 51 of
1977 (CPA),
the court must enquire whether a witness is able to distinguish
between truth and lies. In this regards see the
decision in
S
v SM
[11]
.
[78]
A further aspect is the cautionary rule in
respect of single and child witnesses. The law in respect of
child witnesses is
trite. The law, with regard to the fact that
a single witness must be credible, was laid down in
S
v Sauls and Others
[12]
“…
the single witness must still
be credible, but there are, as
Wigmore
points out, ‘indefinite degrees in
this character we call credibility’. (Wigmore on
Evidence
vol III para 2034 at 262.) There is no
rule of thumb test or formula to apply when it comes to a
consideration of the credibility
of the single witness (see the
remarks of RUMPF JA in
S v Webber
1971
(3) SA 754
(A) at 758.) The trial Judge will weigh his evidence, will
consider its merits and demerits and, having done so, will decide
whether
it is trustworthy and whether, despite the fact that there
are shortcomings or defects or contradictions in the testimony, he is
satisfied that the truth has been told.”
[79]
Of particular importance in
casu
is the law in respect of a First Report in sexual crimes.
The evidence of a First Report in a sexual crime is used
to show the
consistency of the complainant’s evidence. This was at
issue in
S v Hammond
[13]
:
“
It is often said that the fact that a
complainant in a sexual misconduct case made a complaint soon after
the alleged offence, and
the terms of that complaint, are admissible
for two purposes, namely, to show the consistency of the
complainant’s evidence,
and to negative consent: …”
[80]
In
casu
,
the complainant is indeed a single witness in respect of the charges,
with the result that the evidence had to be approached with
caution.
When the court considerers the evidence of a single witness, the
court has to consider whether their evidence is
reliable,
irrespective of the shortcomings or contradictions in the evidence of
such a single witness.
[81]
Finally, it is trite that the evidence by
the appellant should be evaluated together with that of the state so
as to get an overview
of all the evidence as a whole. In this regards
see
S v Trainor
[14]
.
DISCUSSION
[82]
In respect of the first ground of appeal, I
am of the view that the magistrate correctly enquired into the
competency of the complainant
in terms of sec 164(1) of the CPA.
There were, however, a few doubtful portions, e.g. where the
complainant did not answer
the questions asked by the court during
this exercise.
[83]
I am further satisfied that the magistrate
applied the cautionary rule in respect of a single witness.
When embarking on this
enquiry, it is imperative to focus on the
aspects of the complainant’s evidence that were corroborated.
The corroborated
portions are as follows:
·
The fact that the complainant
complained about a burning sensation on return from the appellant was
corroborated by her mother.
·
The fact that this gave rise to the
mother consulting a medical practitioner.
·
The medical practitioner, in turn,
considered the injury serious enough to justify a referral to a
children’s hospital.
In my
view, this serves as sufficient corroboration for the evidence that
the complainant came home with that injury on that particular
day.
[84]
The magistrate attempted to deal with the
discrepancies in the complainant’s evidence where necessary.
These discrepancies,
in my view, are not material and do not nullify
the corroborated portions of the complainant’s version that she
reported
an incident to her mother on that particular day.
[85]
The report to the mother during bath time,
in my view, counts as a First Report. It is by now accepted
that, even though a
First Report is not corroboration
per
se
, it serves as proof of the
consistency of a complainant’s version. It is indeed so
that the mother did not report the
incident immediately and even
allowed the complainant to visit the appellant again after this
report was made to her. I am
of the view that she gives a
perfectly reasonable explanation for her actions, i.e., that she was
too shocked and did not know
what to do.
[86]
On behalf of the appellant the court was
asked to frown upon the fact that the mother decided to take the
complainant to a doctor
rather than to the police. This court
considers this action to be perfectly reasonable. A mother’s
first concern
should be for the health and well-being of her child.
In fact, this behaviour by the mother points to her true concern for
her child instead of proof of the allegation that she is a vindictive
ex-wife whose aim it is to implicate her estranged husband
in a
criminal case, at all costs.
[87]
The First Report is a useful aid in matters
of rape or sexual assault where the complainant is, by the mere
nature of the offence,
almost always a single witness. Not
giving the First Report the proper weight it deserves in this and
similar matters, would
amount to an injustice in my view. In
matters like this, the nature of the crime and the age of the
complainant are inherent
obstacles to successful prosecutions.
They are many a time the only tool at the disposal of these
vulnerable complainants.
Accordingly, where First Reports are
present, it should be accorded the necessary weight.
[88]
In
casu
,
the complainant’s version of her relating the story to her
mother, and her mother’s evidence of how she
got to
know of the alleged incident, in my view, is a valid First Report
account, and speaks of the consistency of the complainant’s
version that she had a burning sensation when her mother bathed her
on that particular day.
[89]
The enquiry does, however, not end here.
The state further have to prove that the appellant sexually assaulted
the complainant.
As stated earlier, Dr Etalleb was not able to
clarify many of the questions. Sadly, many questions of
clarification were
not asked, for example, what he meant by an old
irregularity. It would have been easy to clear this up as the
window within
which the examination was done was approximately 6
days. The state did not clear this up. Moreover, the
state could
have clarified the medical evidence by calling the
referring doctor, but this was also not done. What we are
therefore faced
with is inconclusive medical evidence.
[90]
The grandmother could also have been called
to testify to corroborate the mother’s version of events. No
evidence was also
led as to the opportunity that the father may have
had at his residence to sexually assault the complainant in the way
that she
explained. In my view, the prosecution failed also on
this score.
[91]
In respect of the appellant’s version
of collusion by the complainant’s mother, the magistrate did
deal with both of
their versions. As stated earlier, the
mother’s behaviour, after she received the report, points to
that of a concerned
mother, and not to a vindictive estranged wife,
who would use her minor child to fabricate evidence against to the
appellant.
The detail in the complainant’s evidence also
points to the credibility of her version and, against the possibility
of a
fabricated story, e.g. the nails of the appellant that were long
on one occasion and cut short on the next occasion.
[92]
The appellant’s evidence on his
concern about the welfare of the complainant whilst in the care of
her mother, was also not
dealt with by the prosecution.
Evidence by the social worker who dealt with that complaint 6 months
earlier, would have cleared
this aspect up. The prosecution
also did not make any attempt to clear up the appellant’s
version that the complainant
was suffering from regular infections in
her virginal area since a very young age.
[93]
I find it extremely unlikely that the
mother of a minor child would fabricate an allegation of sexual
assault on a 4-year old and
put this child through the trauma of a
trial in order to falsely implicate the father. I am of the
view that the now accepted
traumatic nature of a rape trial for
sexual assault survivors extends to that of the mother of a minor
sexual survivor. The
sentiments expressed in
S
v J
[15]
,
in respect of rape survivors, are equally applicable here:
“
Few things may be more difficult and
humiliating for a woman than to cry rape: she is often, within
certain communities, considered
to have lost her credibility; …
In my view, the cautionary rule in sexual
assault cases is based on an irrational and outdated perception.
It unjustly stereotypes
complainants in sexual assault cases
(overwhelmingly women) as particularly unreliable. In our
system of law the burden is
on the state to prove the guilt of an
accused beyond reasonable doubt – no more and no less.
The evidence in a particular
case may call for a cautionary approach,
but that is a far cry from the application of a general cautionary
rule.
”
[16]
[94]
In addition, the version by the appellant
that the mother fabricated evidence against him is also not
reasonably, possibly true,
as there is no indication on his own
version that the mother tried to alienate the child from him during
the separation.
It is common cause that she allowed the child
to go to him twice a week, and during the time he was not working,
even on a daily
basis. The surrounding circumstantial evidence
therefore, does not point to a mother whose aim it was to alienate
the child
from him. Whether the appellant sexually assaulted
the complainant is actually the question that should be answered. If
that
question cannot be answered affirmatively, then the appellant is
entitled to an acquittal. In
casu
,
the prosecution did not prove that the appellant’s version that
he regularly washed the complainant before she went back
to her
mother and that she regularly suffered from an infection in her
vaginal area, was not reasonably possibly true. The cause
of the
injury to the complainant’s hymen remains unanswered.
[95]
Considering the evidence as a whole, and in
particular the manner in which the prosecution dealt with this case,
I am of the view
that the state did not cross all the proverbial t’s
and dotted all the i’s, and therefore did not prove the guilt
of
the appellant beyond reasonable doubt.
[96]
In the circumstances, I would uphold the
appeal against the conviction, and set aside both convictions and
sentence and make the
same order as stated in paras [59]
and
[60]
of the judgment of Binns-Ward J.
C.M. FORTUIN
Judge of the High Court
[1]
The history of the provision
discussed in A. Kruger,
Hiemstra’s
Criminal Procedure
at 14-32, 33 suggests that it was originally inspired by the
difficulties encountered in cases involving sexual offences
allegedly
committed repeatedly and in respect of which, for
practical reasons, it was not possible for the state to identify
precisely
the number of occasions on which the offence had been
committed or to accurately specify the dates. The decision of
this
court in
R v Graaff
1917 CPD 65
highlighted the need for the introduction of the
forerunners of s 94 of the current Act. In that case,
which involved
an allegation of incest between a father and his
minor daughter, an objection to the charge sheet was upheld on the
grounds that
it was too vague. The charge had been framed in
the following terms: that ‘
upon
divers dates between the 1st January, 1913, and the 19th January,
1917
,’ and
at certain places named he did wrongfully and unlawfully solicit his
daughter to suffer him to have criminal and
carnal connection with
her, and did wrongfully and unlawfully carnally know her.
[2]
Cf.
Director
of Public Prosecutions, Transvaal v Minister for Justice and
Constitutional Development and Others
[2009] ZACC 8
;
2009 (4) SA 222
(CC);
2009 (2) SACR 130
;
2009 (7)
BCLR 637
at para. 104.
[3]
See also
DPP,
Transvaal v Minister for Justice and Constitutional Development
supra, at para.
164-166;
S v
Matshivha
2014 (1)
SACR 29
(SCA) at paras 10 and 11;
Macinezela
v S
[2018] ZASCA
32
; (and as
S v SM
)
2018 (2) SACR 573
(SCA) at para. 17-19, and
S
v Swartz
[2008]
ZAWCHC 103
;
2009 (1) SACR 452
(C) at para 18-19.
[4]
It will be recalled that the report
made on 17 December had involved two previous incidents; one in
which the appellant’s
nails were long, and the other when they
were short.
[5]
Cf.
S
v Ramulifho
[2012]
ZASCA 202
;
2013 (1) SACR 388
(SCA) at para. 11, in which the
importance of medical evidence in rape cases was highlighted, and
the observation was made
that ‘[i]
f
the results of the examination are inconsistent with the
complainant’s description of a sexual assault the accused’s
denial of intercourse will usually be accepted as reasonably
possibly true
.’
[6]
See also
S
v V
2000 (1) SACR
453
(SCA) at para. 2; also reported as
S
v Viveiros
[2000]
ZASCA 95
; and
Viveiros
v S
[2000] 2 All
SA 86 (A).
[7]
Whether one subjectively believes or
disbelieves the accused is
not
the test; cf. e.g.
S
v V
supra, at
para. 3.
[8]
At paragraphs [40]and [49]
above.
[9]
2008 (1) SACR 543
(SCA) at 547.
[10]
1999 (2) SACR 558 (SCA).
[11]
2018 (2) SACR 578 (SCA).
[12]
1981 (3) SA 172
at 180 D-F.
[13]
2004 (2) SACR 303
at para 12.
[14]
2003 (1) SACR 35 (SCA).
[15]
1998(4) BCLR 424 (A).
[16]
S
v J
supra
,
429G and 430G-H