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[2018] ZAFSHC 35
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Prinsloo v S (A38/2017) [2018] ZAFSHC 35 (29 March 2018)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
number
: A38/2017
In
the appeal between:
DEWALD
PRINSLOO
Appellant
and
THE
STATE
Respondent
CORAM
:
MBHELE, J et
MTHEMBU, AJ
JUDGMENT
BY
: MTHEMBU,
AJ
DELIVERED
ON:
29 MARCH
2018
JUDGMENT:
[1]
The Appellant was originally charged in the Regional Court in Welkom
with 7 counts as listed below, but was convicted on the
29
th
April 2015 on six counts. He was acquitted on the 7
th
count. Counts 1 to 5 are offences contemplated in the
Criminal Law
(Sexual Offences and Related Matters Amendment) Act 32 of 2007
, while
counts 6 and 7 were offences contemplated in the Forms and
Publications Act 3 of 2009. The said offences were:
1.1 A
contravention of Section 18(2) of the Criminal Law Amendment Act, Act
32 of 2007 (the Act)
-
Sexual Grooming
of Children (Count 1);
1.2
A contravention of section 5(1) of the Act – Sexual assault
(Count 2);
1.3
A contravention of section 22 of the Act “Flashing”
(Count 3);
1.4
A contravention of section 55 of the Act – Attempted Rape
(count 4);
1.5
A contravention of section 3 of the Act – Rape (Count 5);
1.6
A contravention of section 24B (1)(a)(b) and (c) of Act 3 of 2009 –
Importation or Procuring of Child
Pornography (Count 6).
[2]
He was sentenced to various terms of imprisonment and the court
ordered that the sentences should run concurrently. He was
effectively sentenced to fifteen years imprisonment.
[3]
He felt aggrieved of the convictions and he appeals with leave of the
trial court against the said convictions only.
AD
THE CONVICTIONS:
[4]
The State’s case is largely based on the evidence of the
complainant
,
a 10 year old boy at the material time in respect
of all the charges
,
who was a single witness. State also led
the evidence of six other witnesses in support of its case.
[5]
The Complainant with the assistance of an intermediary
testified
as follows about five incidents that occurred during the period when
appellant was staying with them at his parental home.
[6]
The complainant testified to the effect that
during February to April 2010 he lived with his parents in
Riebeeckstad, Welkom. The
appellant, complainant’s cousin, went
to live with them.
[7]
Complainant had a good relationship with the appellant until one day
the appellant called him to his bedroom saying he had something
to
show him. Upon his arrival he was shown photos of naked women on
appellant’s computer.
[8]
On another day the appellant called him to his bedroom to watch a
movie that he had never seen before. Appellant undressed and
asked
him to do likewise. While watching the movie they held each other’s
private parts at appellant’s instruction.
[9]
On another occasion appellant called him to his bedroom where they
watched a movie while holding each other’s private
parts. This
time they stroke each other doing up and down movements until a
substance came out of his penis. The appellant showed
him how to
touch his penis. He later learnt that the substance that came out of
his penis was a semen.
[10]
In another occasion the appellant called him to his bedroom and told
him to put his penis between his buttocks. Thereafter
appellant
placed his penis between complainant’s buttocks. He did not
feel any pain.
[11]
On one incident he was playing games on appellant’s computer
and ended up sleeping on a single bed in appellant’s
bedroom.
The appellant came to his bed, pulled out his penis and played with
his private parts. Thereafter he returned to his bed.
[12]
Appellant showed him a video depicting naked women wherein he
observed them having sex. His description of what he observed
was
anal, normal and oral sex.
[13]
He said he did not report these incidents because he was threatened
by the appellant and that he was ashamed of the things
that happened
to him. He did not know if it was his fault.
[14]
He admitted under cross examination that he did something similar
to one Jody, his c
ousin,
a year after appellant left his home but denied that the reason he
reported the appellant was because he was confronted for
his conduct
on Jody.
[15]
He denied that the bulge on the carpet at the door of Appellant‘s
bedroom would have made it impossible for the appellant
to molest him
in his room because he would be easily caught once his parents
drive
into the premises.
[16]
Cecil Louw, a forensic social worker from Teddy Bear Clinic,
testified to the effect that the complainant did not disclose
everything on their first day of consultation. He told her of other
incidents in her follow up meetings. She was of the opinion
that the
manner in which the complainant disclosed details of his encounters
with the appellant is consistent with behaviour of
a child who was
sexually abused. His behaviour was consistent with how a person
who blames themselves and ashamed
of what happened to
him.
[17]
Count 6 is based on the evidence of a Forensic Cyber Analyst
,
attached to the Cybercrime Unit of the SAPS, Free State, namely
Colonel Isaac Pretorius (“Pretorius”).
[18]
Pretorius thoroughly analysed the hard drive and memory of the laptop
which had been seized in the possession of the appellant.
He
testified that although no actual child pornography was found on the
laptop, his investigations revealed that appellant’s
computer was used to access child pornography websites on the
internet. An app was used to clean child pornography from appellant’s
computer just hours before his arrest.
[19]
The Appellant’s grounds of appeal are set out broadly in his
Notice of Appeal. There are about 31 grounds of appeal noted
by the
Appellant. The said grounds essentially deal with the credibility,
reliability and contradictions in the evidence of the
complainant.
They also deal with whether the version of the appellant is
reasonably possibly true.
[20]
The case for the state in counts one to five rests largely on the
evidence of a single witness. This witness was at the material
times
10 years of age. The appellant, an adult male, is his cousin and he
stayed with the complainant at the complainant’s
parental home
together with the complainant’s parents. The evidence of the
complainant was attacked by the defence on the
basis that it was not
trustworthy and that it was not credible. This submission is made on
the basis that the complainant contradicted
himself and changed his
version.
[21]
In view of the fact that the accused is a single witness and a child,
the evaluation of his evidence must be approached with
caution. Not
only should such evidence be credible but it must also be reliable.
(See
R v
Mokwena
1956(3)
SA 81 at 85.The court in
S
v Sauls and others
1981(3) SA 172 at 180 E-G said the following:
“
There is no rule
of thumb test or formula to apply when it comes to a consideration of
the credibility of a single witness(see the
remarks of Rumpff 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. The
cautionary rule referred to by
De Villiers JP in 1932 may be a guide
to a right decision but it does not mean ‘that the appeal must
succeed if any criticism,
however, slender, lf the witnesses’
evidence were well founded”
(Per Schreiner JA in R v
Nhlapo (AD 10 November 1952) quoted in R v Bellingham 1955(2) SA
566(A) at 569). It has been said more
than once that the exercise of
caution must not be allowed to displace the exercise of common
sense.’
[22]
Having regard to the Complainant’s age, both when he testified
and when the incident happened, coupled with the time
spent being
cross examined by the defence, certainly affords some explanation for
the discrepancies in his evidence.
[23]
I am of the view that the court
a
quo
was
alive to the fact that the evidence of the Complainant had to be
approached with caution as he was a single witness. This approach
by
the court cannot be faulted.
[24]
In this regard the court
a
quo
held that:
“…
hence the
cautionary rule of practice is called for in the evaluation process
of V….us’ evidence, both as a single
witness and as a
child witness
”
.
[25]
The Court
a
quo
went further and stated that “
In
the evaluation of a child’s evidence, judicial officers have
to, therefore, consider factors such as reliability of the
memory of
the child, susceptibility to suggestion, the truthfulness and the
meaning of what was said and the court must take into
account the
motivation for saying what was said” The court referred to the
article of Ziff in the
South
African Journal of Criminal Justice
1991 (4) 24, titled “
The
Child Victim as a Witness in Sexual Abuse Cases
”.
[26]
The court
a
quo
found that even though the complainant was only 10 at the time of the
incidents he did appear to have a reliable memory. He
displayed
sufficient intelligence and hence passed the basic test of caution in
respect of a child witness.
[27]
The court
a
quo
also tested the truthfulness and reliability of complainant’s
evidence. It found that his evidence remained consistent in
material
aspects, had no reason to falsely implicate the Appellant. He simply
said what was done to him.
[28]
The defence too conceded at some stage that the complainant was
sexually abused when the appellant testified after hearing
the
evidence of the forensic Social Worker. So was there a motive by the
complainant to conceal the truth of who really sexually
abused him?
His evidence does not indicate so, that there was a motive to conceal
the truth. His memory the court
a
quo
found to be reliable. His evidence did not suggest fantasizing about
it. It was tested at great length.
[29]
The Magistrate found that the complainant indeed contradicted himself
at times. However, the court had to bear in mind that
this child was
cross examined for a lengthy period (for 7 days during a period
covering 06 June 2013 to 23 January 2014)
and he was
exhausted. The defence also constantly told the court that the
complainant was tired.
[30]
The testimony and report of the Social Worker supported the
Complainant’s testimony in that she gave a detailed explanation
to the contradictions and discrepancies in the Complainant’s
testimony.
[31]
It is true that with regard to count 5 on a charge of rape that the
complainant made no reference to the rape in his testimony
in chief
as well as in his consultations with the forensic Social Worker. His
testimony in this regard should, however, be evaluated
against this
backdrop.
·
Section
227(2) of the Criminal Procedure Act provides as follows:
“
No evidence as to
any previous sexual experience or conduct of any person or in
connection with whom a sexual offence is alleged
to have been
committed, other than evidence relating to sexual experience or
conduct in respect of the offence which is being tried,
shall be
adduced, and no evidence or question in cross examination regarding
such sexual experience or conduct, shall be put to
such person, the
accused or any party to the proceedings pending before the court
unless-
(a)
the court
has, on application by any party to the proceedings, granted leave to
adduce such evidence or to put such question:
(b)
such
evidence has been introduced by the prosecution.
[32]
The evidence of alleged sexual conduct of the complainant was
elicited by the defence during the cross examination. This evidence
relates to the alleged sexual encounter with Jody. Throughout his
address the defence hammered on the alleged deviancy of the
complainant. Mr Wyngaardt in his address went to The extent of
saying:
“…
.because
remember now, it is not the first time that W.. us has been
confronted with sexual deviancy. There has been the matter
of
the M family, there has been other matters and now once again with
the a J matter, he is confronted.”
[33]
The defence did not make an application to adduce evidence of sexual
conduct of the complainant. This flies in the face of
s227(2) of the
CPA. Both the state and the defence seem not to have taken cognisance
of section 227 of the CPA. The court should
also have played a
proactive role and prevented questioning on the sexual conduct of the
complainant in the absence of the necessary
application. At the end
of the day, it is my considered view that such evidence should have
been ruled inadmissible.
[34]
The forensic Social Worker proffers a plausible explanation as to why
the complainant failed to mention that the accused put
his penis in
his mouth during both the consultation with her and in the
examination in chief. The social worker described this
late
disclosure of oral penetration as “accidental disclosure.”
according to her expert opinion, children in the process
of
disclosure give bits to different people to test if adults are
sensitive to their disclosure. I have no doubt in accepting this
professional opinion. I am unable to find that the complainant was
lying when he later disclosed the oral penetration only in cross
examination.
[35]
I accordingly find that the court
a
quo’s
findings with regard to counts 1 – 5 were not vitiated by any
misdirection.
[36]
Count 6 is based on the evidence of a Forensic Cyber Analyst,
attached to the Cyber Crime Unit of the SAPS, Colonel Pretorius
(Pretorius). He thoroughly analysed the hard drive and memory of the
laptop which had been seized in the possession of the Appellant.
He
testified that although no actual child pornography was found on the
laptop, his investigations revealed that someone used the
laptop to
access such websites on the internet. Such photos etc. were found in
these sites.
[37]
Cleaning mechanisms and anti-software viruses were running
immediately when a Warrant Officer Jacobs contacted the appellant.
[38]
The laptop was not being used up until the time of contact of the
appellant by warrant officer Jacobs. All that was done at
the time is
that an anti-virus software was used as a clean-up process. All of
this was not disputed by the defence.
[39]
In fact the defence in the address on merits, admitted that it was
not disputed that child pornography was accessed or possessed,
the
only aspect in dispute is who accessed it.
[40]
The appellant testified that when Warrant Officer Jacobs requested
the laptop, he had only had it in his possession for about
a week.
His father had the laptop for about six months. Contrary to the
Appellant’s evidence, his father said that he had
this laptop
with him only for a period of two weeks. He said it never worked so
he gave it back to the appellant.
[41]
During this short period that the Appellant had the laptop, it seems
his friends’, the manager of the shop he worked
for, and
customers all used his laptop. It seems that according to the
appellant, he was just a generous and kind person. However,
the
undisputed investigation reveals that it was used at the time it
became known that the police wanted the appellant’s
laptop and
the cleaning device was running at the time the police were kept
waiting for the appellant to hand over his laptop.
[42]
The Court
a
quo’s
finding that the probability is that the Appellant knew what was on
his laptop and immediately got the cleaning device to work
cannot be
faulted.
[43]
That anti-software virus was being run and the laptop was only shut
down about 25 minutes before he arrived at the police is
contrary to
the Appellant’s version that he just closed the laptop.
[44]
At the time when the investigation started, the appellant never
mentioned the names of the people that he mentioned in court
that had
used his laptop. The question is why not? The probability is that the
appellant used his laptop for himself for the purpose
of accessing
and watching child pornography.
[45]
I concur with the Court
a
quo
that the Appellant’s version pertaining to count 6 is also
flawed with improbabilities and contradictions.
[46]
I further concur with the court
a
quo
that having evaluated all the evidence, the contradictions, the
probabilities, improbabilities, the defects in the complainant’s
evidence and the appellant’s evidence and having considered the
totality thereof, the balance weighs heavily in favour of
the State.
[47]
The Court a quo was correct in finding that the Appellant’s
version in light of the totality of the evidence cannot be
accepted
as reasonably possibly true and must be rejected as false.
[48]
This court is satisfied that the State proved its case beyond
reasonable doubt in respect of counts 1 – 6.
[49]
None of the submissions and arguments raised by the defence indicated
that the trial court acted irregularly or misdirected
itself in any
manner or material respect with regard to the convictions which would
entitle this court to interfere with its decision.
See
R
v Dhlumayo
1948 (2) SA 677
AD at 706 para 8 where at Greenberg JA said:
“
Where there has
been no misdirection on fact by the trial judge the presumption is
that his (her) conclusion is correct; the appellate
court will only
reverse it where it is convinced that it is wrong”.
The
conviction of the Appellant on counts 1 – 6 is in order.
[50]
In the result I make the following order:
1.
The appeal against the convictions on all six counts fails and is
accordingly dismissed.
________________
J MTHEMBU, AJ
I
concur.
_____________
NM MBHELE, J
On
behalf of the Applicant:
Adv M Van Wyngaard
Instructed by:
Symington & De Kok
BLOEMFONTEIN
On
behalf of the Respondent: Adv C
Nameka
Instructed by:
Director of Public
Prosecutions
BLOEMFONTEIN