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[2018] ZAFSHC 56
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Shibane v S (A23/2018) [2018] ZAFSHC 56 (10 May 2018)
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE
DIVISION,
BLOEMFONTEIN
Appeal
no
.
A23/2018
In
the appeal of:
MAFA
SIMON SHIBANE
and
THE
STATE
Appellant
Respondent
CORAM
:
MATHEBULA J et I VAN RHYN AJ
JUDGMENT
BY
:
I VAN
RHYN AJ
HEARD
ON:
23 APRIL 2018
DELIVERED
ON
:
10
MAY 2018
[1]
The Appellant, a 21 year old male was convicted by the Regional
Magistrate, Bloemfontein on one count of rape on 30 May 2017
and was
sentenced to eighteen (18) years imprisonment.
[2]
The Appellant applied for leave to appeal against the conviction
which was granted by the Court
a
quo
.
[3]
The State alleged that the Appellant, on 27 June 2016 committed an
act of sexual penetration with the Complainant, a five (5)
year old
girl, by putting his penis into her mouth. The Appellant was duly
warned by the regional magistrate that in terms of the
provisions of
Sec 51(1) of the Criminal Procedure Act 51 of 1977 (“CPA”),
and should he be found guilty as charged,
the prescribed minimum
sentence is life imprisonment. The Appellant was legally represented
during the trial.
[4]
The record reflects that before the Complainant gave evidence, the
Court made a ruling in terms of Section 170A(1) of the CPA
that her
evidence be presented through the assistance of an intermediary.
The defence did not object thereto and after considering
the
qualifications and experience of the proposed intermediary, an order
was duly granted. Complainant gave evidence in camera.
[5]
Section 162 of the CPA peremptorily requires that all witnesses will
testify under oath subject to exceptions applicable to
limited
categories of witnesses. The first exception is for a witness
to take an affirmation in terms of Section 163. The
second exception,
in terms of Section 164, provides for a witness to be admonished to
speak the truth after finding that he/she
does not understand the
nature and impact of the oath or affirmation due to ignorance arising
from youth, defective education or
other causes.
[1]
[6]
The Complainant was born on […] 2010 and was six (6) years old
at the time of the trial. She was five (5) years
old when the
alleged incident took place.
[7]
The record reveals that the Regional Magistrate posed a number of
questions to the Complainant to establish whether she understood
the
difference between the truth and lies. It is apparent from the
questions posed to the Complainant and her answers thereto
that she
understood the difference between telling the truth and facts that
were incorrect and therefore false. A difficulty
however arose
when the Complainant was asked why it would be false to, for example
say that her teacher at school is a male while
she in fact is a
female. She replied that she did not know. When she was
asked whether anything would happen to her
if she lied, she answered
in the negative. The Magistrate informed the Complainant that
it is expected of her to tell only
the truth in Court because the
Appellant may go to jail due to her lies and whether she understood
the consequences if she did
not tell the truth. Again she replied in
the negative. The Complainant was warned not to tell any lies
in Court where after
the magistrate found her to be a competent
witness who would be able to distinguish between the truth and
falsehood and that she
was also made aware of the dangers of speaking
such untruths.
[8]
The manner in which the evidence of young children should be
approached is thoroughly analysed in
Woji
v Santam Insurance Company Ltd
1981 (1) SA 1021
(A) at 1028
.
The concern about the testimony of a child is not merely his or her
ability to distinguish between the concepts of truth
and falsehood
but also the proviso that the child must understand what it means to
speak the truth.
[2]
[9]
The Complainant testified that she went to the shack situated on the
same premises as her parental home to look for her sister’s
books. The Appellant was inside the shack and he asked her to
enter. She was reluctant at first even though she was
not
scared of him. The Appellant then told her to lay on top of him
whereafter he undressed, by dropping his pants to expose
his penis
and inserted his penis inside her mouth. The Complaint
demonstrated, by making use of anatomical dolls, how the
Appellant
lay and how he dropped his pants.
[10]
She placed the male doll, lying in a horizontal position on his back
and placed the female doll on top of the male doll with
the abdomen
flat on the male doll, facing his private parts.
[11]
The Complainant’s sister entered the shack whereafter the
sister questioned the Appellant and the Complainant on what
was
happening but neither of them replied. Her sister took her and
they went to the main house. The sister started
crying and upon
concerns of her brother, who was in the main house, and it was
decided to inform the Complainant’s mother
of the incident.
[12]
The Complainant’s evidence that the Appellant was lying on top
of a steel bath caused confusion and several questions
were posed by
the Magistrate and the Defence to ascertain whether the Appellant was
inside the bath or whether the bath was perhaps
turned upside down.
It appears as if old clothes and blankets filled up the bath and
resulted in the explanation that the Appellant
was “on top the
bath” when the incident took place.
[13]
During cross-examination the Complainant was confronted with her
sister’s version as per her police statement, that she
was
holding the Appellant’s penis in her hands. She denied
this version. According to her evidence she held her hands
next to
her body. It was also put to her that according to her sister’s
statement, the Appellant grabbed a blanket to hide
his penis when her
sister entered the shack which she also denied.
[14]
The second State witness was the Complainant’s sister, N. W.,
aged twenty two (22). She testified that at around
midday, on
the day in question, she returned home as she was supposed to
baby-sit her son and the Complainant. When she entered
the
shack, she found no one in the kitchen and proceeded to the bedroom.
It was dark in the bedroom although it was not as
dark as it becomes
during the night.
[15]
She found the Appellant sitting on top of the bath while the
Complainant was sucking his penis. She questioned the Appellant
about what was happening but did not receive any reaction from
neither the Appellant nor the Complainant. She grabbed the
Complainant and left the shack. Her brother found her crying in
the bedroom and she related what she found in the shack where
after
her brother went to the sitting room. The Appellant then
entered the sitting room and denied that he did anything to
the
Complainant. Upon her arrival from work the Complainant’s
mother confronted the Appellant with the allegations
which the
Appellant denied.
[16]
During cross-examination the sister indicated that when she entered
the shack, the Appellant was sitting but leaning backwards
slightly.
The Complainant was on her knees facing the Appellant and holding his
penis in her hands while she was sucking
it. She confirmed that
she only observed the scene for about six (6) or seven (7) seconds,
which is not an adequate time
in the circumstances. The sister
was confronted with the discrepancies between her version and the
testimony by the Complainant
as well as the discrepancies as
contained in her witness statement. Her statement was
commissioned on the day after the alleged
incident and was handed in
during the trial as exhibit “
A
”.
In the statement she said that she “ …
found
Mafa
(the
Appellant)
lying
on top of a pile of clothes and saw Manana
(the Complainant)
standing
and holding Mafa’s penis
”.
No mention was made that the Complainant had the penis in her mouth
or was sucking it. The sister denied that the
version contained
in the statement was correct and attributed the inconsistencies to
the fact that she relayed her version in Sesotho
while it was written
down in English. No other witnesses were called by the prosecution.
By agreement the Competency Report
of a forensic social worker as
well as the J88 were handed in as exhibits. I will refer to the
contents of these documents herein
later.
[17]
The version of the Appellant was a denial of the accusations.
He however admitted the age of the Complainant and that
he and the
Complainant were together in the shack on the day of the incident.
He was lying on blankets on the floor in the
shack when the
Complainant entered the shack. She fell asleep on top of the blankets
and clothes that filled the bath. After
the sister entered the
shack, the Complainant ran towards him and bumped into him.
Prior to the sister’s entry into
the shack he was fast asleep.
The sister started yelling at the Complainant and took her to the
main house. He confirmed
that he did not answer the sister’s
question on what was happening in the shack because, at first he
thought that she was
joking, and then he expected certain accusations
to follow and it would end up in an argument.
[18]
The Appellant, obviously in an effort to explain the motive for the
false accusations against him, testified that he and his
brother
Thabo, were orphans who initially lived in Thaba ‘Nchu.
His uncle fetched them where after the family as well
as the
Appellant and his brother lived in the shack. Subsequent to the
building of a RDP house on the property the rest of
the family
relocated to the RDP house while the Appellant and his brother were
left to stay in the shack. According to the
Appellant he and
his brother were ill-treated by the foster family and accusations
were levelled that their foster grant from the
State were
inappropriately used by their uncle. The Appellant and his
brother dropped out of school due to a lack of funds
and the
Appellant testified that his brother left after the case
against him was opened, as he was afraid that the family
would also
implicate him in wrongdoings.
[19]
The Appellant’s testimony that he was ill-treated, was
corroborated by the Complainant during cross-examination when
she
confirmed that her mother and sister did not want the Appellant to
stay with them. The Complainant further explained that the
Appellant
was ill-treated but his brother, Thabo was not. The Complainant also
mentioned that something happened between her brother
and the
Appellant but she did not know exactly what the problem was.
[20]
When addressing the Court the Prosecutor stated that the forensic
report compiled by a social worker, who assisted the Complainant
to
relay what happened to her, indicates that the child was unable to
communicate properly and it was also indicated on the J.88
that the
Complainant was only able to show with hand signs what happened to
her. It is evident from the J.88, completed by
Dr J M Kotzé
that no visible abnormalities were found and that child abuse can
neither be confirmed nor negated. The
doctor furthermore noted
that the Complainant was friendly but refused to speak.
Regarding the incident it was noted that
the child showed her mother
that the person (twenty one (21) years old) put his penis into her
mouth and she was scared of him.
[21]
From the Competency Report compiled by Colonel T S Monosi, dated
3
March 2017
,
a registered social worker with fourteen (14) years experience, it is
evident that three separate consultations were conducted
with the
Complainant. It was stated that the Complainant is functioning
at pre-operational stage and that a child’s
thoughts during
this period is being governed by principles such as egocentrism,
animism and other similar constructs. It
is further stated that
communication at the Complainant’s age is egocentric and it may
appear to be disorganized or fanciful.
For communication to
happen, children of this age group must have acquired a certain level
of intelligence, vocabulary and conversational
skill.
[22]
Evidence pertaining to the competency of a child to testify assists
the Court not only on the question whether the evidence
of the child
is to be admitted but also the weight/value to be attached to the
evidence of the child
[3]
.
Having correctly found that the evidence of the Complainant is
admissible it is necessary to scrutinize not only the testimony
of
the Complainant, but also whether her evidence was corroborated by
the evidence of her sister.
[23]
On several occasions the Complainant faulted to respond to questions
put to her in an appropriate way and at times indicated
that she does
not understand the question. The following examples will
illustrate the point.
“
Yes
what happened then? --- He undressed and then inserted his penis
inside my mouth.
Okay and then what did
he undress? --- His pants.
Where in the shack
were you when this happened? --- I was inside.
Was there anything
else in the shack? --- No, Your Worship.
COURT
:
What was in the shack? --- it was my sister’s books.
And
,
Did you see his penis?
--- Yes.
What did it look like?
--- It was not okay.
Can you describe it to
us? --- No.
And,
What
was he wearing when he inserted his penis in your mouth? --- He was
wearing pants, Your Worship. Trousers.
And after he
undressed? --- I do not know.
And,
Manana,
you indicated that your sister entered. What happened then? ---
I do not know.
”
The
complainant’s answers to some of the questions posed to her
indicates that her power of observation, recollection and
communication skills raises the question whether she has the capacity
to understand the questions put to her and frame and express
intelligent answers in relation thereto. The reason for evidence to
be given under oath or, as in this case, where a child is admonished
to speak the truth, is to ensure that the evidence given is
reliable
[4]
.
[24]
In his judgment convicting the Appellant, the Magistrate referred to
the evidence of the Complainant and found that she maintained
her
version throughout and no material contradictions could be detected
in her evidence. The magistrate also found that she
gave a
logical and detailed account of what happened to her and was
impressed by her demeanour. When the Complainant was
confronted
with her sister’s statement she refuted her sister’s
version or the events.
[25]
Recently the Supreme Court of Appeal in the unreported matter between
Saamwerk
Soutwerk (PTY) LTD v Minister of Mineral Resources
[5]
restated the circumstances justifying overturning the trial court’s
findings of credibility as follows:
“
[38]
It is trite that an appellate court is reluctant to upset findings of
credibility and fact of a trial court. This is so mainly
because the
trial court had the advantages of seeing and hearing the witnesses
and of being steeped in the atmosphere of the trial.
The advantages
of the trial court must, however, not be overemphasised, because that
may render the appellant’s right of
appeal ‘illusory’.
The findings of the trial court in respect of credibility and fact
will thus be disturbed if they
are plainly wrong.”
[26]
However several contradictions not only regarding the evidence
between the Complainant and her sister appear from the record,
but
also further discrepancies in the evidence of her sister and her
sister’s witness statement. The Court
a
quo
found
that the discrepancies relating to whether the Complainant was
holding the Appellant’s penis in her hands is not of
a material
nature. Of importance to the Court
a
quo
was
whether the Appellant’s penis was in the Complainant’s
mouth and it was found that both the Complainant and her
sister
corroborated each other on this crucial aspect. It was
furthermore found that the Complainant was corroborated by
her sister
with regard to the fact that the Appellant was lying on his back when
the incident occurred. This however was
not the evidence of the
sister. According to the sister the Appellant was sitting and the
Complainant was kneeling in front of
him. The Magistrate found that
the sister was fair enough to admit that she did not see the
Appellant’s penis. The
sister evidence was that she saw
the Complainant holding it. No mention was made of the fact
that the sister failed to mention
in her witness statement that the
Complainant had the Appellant’s penis in her mouth.
[27]
Regarding the Complainant’s concession that her sister and
mother disliked the Appellant the Magistrate referred a question
that
was put to the Complainant during cross-examination. The
question was whether her sister and her mother told the Complainant
that Mafa (Appellant) put his penis into her mouth. The
complainant’s response was: “
Yes
”.
[28]
The record reveals the following regarding the subsequent questioning
by the Prosecutor and the Magistrate:
In re-examination:
“
PROSECUTOR
:
Manana, did you tell anyone why … how Mafa put his penis in
your mouth? --- No, uncle.
Manana,
you said now that your sister and your mother told you to say that
Mafa put his penis in your mouth. Why did they
say that to you?
--- No, Uncle.
To what are you saying
no? --- No, my Uncle.
COURT
:
Who told you that you should say that Mafa put his penis in your
mouth? --- It was not me, Uncle.
Who said so? --- It is
my mother.
What did she say to
you? --- I do not know, uncle.
PROSECUTOR
:
Is it the truth that Mafa put his penis in your mouth? --- It is the
truth.
”
[29]
It is not expected of a witness to furnish precisely the same account
in evidence in Court as in a witness statement and
experience
has shown that two or more witnesses hardly ever give identical
evidence with reference to the same incident or event.
[30]
There is no evidence of a first report made by the Complainant.
The remarks by the mother as recorded in the J.88 medico-legal
report
that the Complainant indicated to her what had happened to her, was
not presented at the trial.
[31]
It is trite that the proper approach to evaluate evidence is in the
ultimate analyses to look at the evidence holistically
in order to
determine whether the guilt of the Appellant has been proved beyond a
reasonable doubt. In
S
v Hadebe and Others
[6]
,
the following was stated:
“
But,
in doing so, one must guard against a tendency to focus to intently
upon the separate and individual part of what is, after
all, a mosaic
of proof. Doubts about one aspect of the evidence led in a
trial may arise when that aspect is viewed in isolation.
Those
doubts may be set at rest when it is evaluated again together with
all the other available evidence. That is not to
say that a
broad and indulgent approach is appropriate when evaluating evidence.
Far from it. There is no substitute for
a detailed and critical
examination of each and every component in a body of evidence.
But, once that has been done, it is
necessary to step back a pace and
consider the mosaic as a whole. If that is not done, one may
fail to see the wood from
the trees.
”
[32]
In the present case eleven (11) months passed before the Complainant
was called to testify in Court. Taking cognisance
of her age
and the time lapse between the insident and the trial, this may have
resulted in her inability to respond adequately
to some of the
questions as indicated above.
[33]
The evidence indicates that, but for the sister’s encounter
with the Complainant and the Appellant in the shack, there
probably
would not have been a report by the Complainant. The sister did
not question the Complainant about the incident
and merely informed
her brother and her mother about what she witnessed. It can
reasonably be expected that the Complainant’s
mother would have
questioned the Complainant, but no evidence of a voluntarily
complaint to her mother was placed on record.
On the other
hand, the question remains whether the Complainant realized the
immoral nature of such an act. There is no evidence
that the
Complainant was intimidated or threatened by the Appellant but for
the note by the doctor recorded on the J.88, which
the Complainant
refuted.
[34]
Faced with the contradictions between the sister’s evidence
during the trial, the testimony of the Complainant and the
further
contradictions contained in the sister’s witness statement, Mrs
S Giorgi, on behalf of the State, proposed that less
weight should be
attached to the sister’s evidence.
[35]
We are required to approach the evidence of the Complainant with
caution, firstly because as to a certain extent she is a single
witness and secondly, because she is a young child.
[7]
[36]
The requirement remains that the Court must be convinced that the
guilt of an accused has been established beyond reasonable
doubt.
The fact remains that more than one witness’ evidence regarding
the incident in the shack was presented at the
trial and the best
indication that a court has applied its mind in the proper manner is
to be found in its reasoning for the judgment
including its reasons
for the acceptance and the rejection of the respective witnesses.
It is quite evident that apart from
the fact that both the
Complainant and her sister testified that the Appellant’s penis
was in the Complainant’s mouth,
the evidence relating to the
position of the Appellant, as to whether he was lying or sitting,
whether the Complainant was lying
on top of the Appellant as she
indicated with the dolls, kneeling or standing when the immoral act
happened and whether the Complainant
held her hands next to her body
or holding the appellant’s penis differs to a great
extent. These aspects were
found to be immaterial by the Court
a quo
.
In my view, corroboration on these aspects or at least some of these
aspects would have provided proof beyond reasonable
doubt.
[37]
There is no legal provision requiring corroboration of evidence of
children but it is settled law that the evidence of children
should
be approached with caution.
[8]
[38]
The Magistrate found that the Complainant was corroborated by her
sister with regard to the fact that the Appellant was on
his back.
This is a misdirection.
[39]
Too much reliance was placed upon the Appellant’s response or
lack of response when the sister entered the shack and
enquired about
what was happening. The Magistrate found that the Appellant’s
denial that he did not do anything to the Complainant
subsequent to
him entering the house is not the response of an innocent person.
On the other hand, the Appellant’s
version that he heard the
sister being questioned by her brother and it concerned the
Complainant, caused him to assume that the
sister was under the
impression that he was doing funny things to the Complainant in the
shack, seems more probable. The Appellant
also confirms the sister’s
testimony that the brother questioned the Complainant as to what
happened in the shack, confirming
that the Appellant was able to hear
what was discussed in the house. Too much weight was attached to the
fact that the Appellant,
only during cross examination stated
that he informed his previous legal representative that he had
misgivings about the
way that the foster grant from SASSA was used
and that this aspect was not put to the State witnesses when they
testified. The
Appellant explained that he consulted with another
legal representative and was under the impression that his present
legal representative
was aware of his instructions. This explanation
does not seem improbable of far fetched.
[40]
In
S v
Tshabalala
[9]
the
approach to a criminal trial is summarized as follows:
“
[When
dealing with a criminal trial] the correct approach is to weigh up
all the elements which point towards the guilt of the accused
against
all those which are indicative of his innocence, taking proper
account of inherent strengths and weaknesses, probabilities
and
improbabilities on both sides and, having done so, to decide whether
the balance weighs so heavily in favour of the State as
to exclude
any reasonable doubt about the accused’s guilt.
”
[41]
Even though the Magistrate on several occasions correctly warned the
legal representative of the Appellant and the Prosecutor
not to
confuse the Complainant and rather give the Complainant an option of
choosing between two versions, as a child may be prone
to just answer
in the affirmative, several of the Complainant’s answers were
not coherent or a proper response to the particular
question.
Of concern remains the response to the questions whether her mother
and/or sister could have suggested to the Complainant
what had
happened in the shack. The sister indicated that the Appellant
answered her mother “with an attitude”
when he was
questioned about the incident. She also testified that even
though her mother took the Appellant and his brother
in as her own
children, the Appellant and her stepfather (the Appellant’s
uncle) quarrelled at times. This is a clear indication
that there
could have been animosity towards the foster children or at least
against the Appellant as confirmed by the Complainant.
The sister
explained that she had a good relationship with the Appellant because
they used to go out together and she even sponsored
him to play pool.
She also testified that the Appellant only slept in the shack on the
occasions that he went out and brought home
a girlfriend. She
confirmed that the Appellant dropped out of school and was encouraged
by herself and her stepfather
to continue his studies. The
Appellant however indicated that he could not write his June exams
due to a lack of financial
support and accused his foster parents of
misusing the grants they received from SASSA.
[42]
In
S v
V
[10]
,
the approach to the Appellant’s version can be summarized as
follows:
“
It
is trite that there is no obligation upon an Appellant person where
the State bears the onus, to ‘convince the Court’.
If his
version is reasonably possibly true, he is entitled to his
acquittal even though his explanation is improbable.
The Court
is not entitled to convict unless it is satisfied that not only the
explanation is improbable, but that beyond reasonable
doubt it is
false. It is permissible to look at the probabilities of the
case to determine whether the accused’s version
is reasonably
possibly true, but whether one believes him, is not the test.
”
[43]
In casu
,
having weighed the strengths, weaknesses, probabilities and
improbabilities, I am of the view that the prosecution failed to
prove its case beyond reasonable doubt.
[44] Accordingly I
propose the following orders:
1. The
appeal is upheld.
2. The
conviction and sentence are set aside.
______________________
I VAN RHYN AJ
I concur and it is so
ordered
______________________
M.A.
MATHEBULA, J
On
behalf of the
Appellant:
Ms S Kruger
Instructed
by:
BLOEMFONTEIN JUSTICE
CENTRE
On
behalf of the
Respondent:
Adv. S Giorgi
Instructed
by:
DIRECTOR PUBLIC PROSECUTIONS
Bloemfontein
[1]
Director of Public Prosecutions,
Kwazulu-Natal v Mekka
2003 (4) SA 275
at 276 H - I
[2]
Section 164(1) and (2) of the CPA
[3]
S v V
1998 (2) SACR 651
(CPD) at 653
.
[4]
DPP v
MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMEN
T
2009 (4) SA 222
at 279 [166]
[5]
(
1098/2015 & 206/2016)
[2017] ZASCA 56
(19 May 2017)
[6]
1998 (1) SACR 422
(SCA) at 426 f – h.
[7]
R v Manda
1951 (3) SA 158
(A) at 163;Viveiros
v s 2000(2) All SA 86 SCA;
Woji v Santam
Insurance Co Ltd
1981 (1) SA 1020
(A) at 1028.
[8]
R v J
1966 (1) SA 88
(SR AD).
[9]
2003 (1) SACR 134
(SCA) at 139 i – l 140
[10]
2000 (1) SACR 453
(SCA) at 455 a – c