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[2018] ZAFSHC 219
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LR and Another v S (A333/2017) [2018] ZAFSHC 219; 2019 (2) SACR 216 (FB) (14 December 2018)
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
number: A333/2017
In
the appeal between:
L
R
1
st
Appellant
MOTSUHI
MATHLOKO
2
nd
Appellant
and
THE
STATE
Respondent
HEARD
ON:
22
OCTOBER 2018
CORAM:
REINDERS, J, MLHAMBI, J
et
OPPERMAN, J
JUDGMENT
BY:
OPPERMAN,
J
DELIVERED
ON:
14
DECEMBER 2018
I
INTRODUCTION
[1]
The appeal on convictions lies before the Full Bench after trial in
the High Court: Free State Provincial Division. The predominant
question is whether the appellants had a fair trial.
[1]
The predicament that presents in this case is not new. In
S
v Molimi
(CCT
10/07)
[2008] ZACC 2
;
2008 (3) SA 608
(CC);
2008 (2) SACR 76
(CC)
2008 (5) BCLR 451
(CC) (4 March 2008) a similar scenario presented:
“
[1] This
case raises issues of considerable importance regarding the
admissibility of extra-curial statements of an accused
against a
co-accused in a criminal trial. More specifically, we are asked
to consider the rules governing the admissibility
of hearsay evidence
under the provisions of the Law of Evidence Amendment Act (the
Act)
[2]
in
the context of the right to a fair trial and the need to prevent,
among other things, procedural abuse.”
[2]
The four charges involve the same complainant; a 14-year-old girl.
[3]
The charges arraigned and convicted
[4]
of were:
1.1
Rape
[5]
in December 2015 in respect of the 1
st
appellant only.
1.2
Rape on 1
February 2016 in respect of the 1
st
appellant only.
1.3
Attempted
rape
[6]
in August 2016 in
respect of the 1
st
appellant only.
1.4
Rape in
August 2016 in respect of the 2
nd
appellant only.
[3]
The succinct allegations
[7]
against the accused are that the 1
st
appellant raped the complainant, his daughter. She confided in the
2
nd
appellant, a friend of the family and pastor in their church, in the
hope that he will help her to manage the situation with her
father.
He also raped her. The whole incident came to the fore after a report
was made to the maternal grandmother by one Thokozile.
[8]
M testified about a conversation with the 2
nd
appellant wherein 2
nd
appellant declared to him that both the 1
st
appellant
and he had sexual intercourse with the complainant. The conversation
was prompted by the hearsay evidence of one Thamsanqa.
The appellants
pleaded not guilty and pleaded a bare denial on all the allegations.
II
THE ISSUES
[4]
The issues are that:
4.1
Hearsay
evidence was provisionally admitted but the witnesses on whose
testimony the veracity thereof was dependent were not called
to
testify. The two witnesses
[9]
were made available to the defence and they also elected not to call
them to testify. The court did not make any ruling on the
admissibility of the evidence at any stage.
4.2
M
testified, after information received from Thamsanqa, that the 2
nd
appellant informed him that he and the 1
st
appellant had intercourse with the complainant. The court did not
deal with the admissibility of the evidence but took it into
account
as corroboration of the complainant`s evidence.
Section
219
of the
Criminal
Procedure Act 51 of 1977
[10]
that provides that: “No confession made by any person shall be
admissible as evidence against another person.” A confession
made by one accused should be excluded when determining the guilt or
otherwise of his or her co-accused. The confession must, moreover,
be
admissible in the first instance against the maker thereof.
4.3
There is a
real issue whether the facts proved the offence of attempted rape on
count 3.
4.4
The court
a
quo
evaluated the veracity of the complainant’s evidence, amongst
others, on the support of the evidence of the hearsay-witnesses
and
the evidence of M. Concisely, the grounds of appeal forwarded by
counsel for the appellants question the finding of the court
that the
complainant was a credible witness notwithstanding contradictions in
her and the other State witnesses’ evidence.
The complainant
previously made allegations of rape against another man but later
withdrew it. The complainant, according to the
appellants, never
described “the act” that was committed. The claim is that
the versions of the appellants should have
been accepted as
reasonably possibly true.
[5]
The State`s case
vis-a-vis
that of the appellants on the facts itself forms the evidentiary
basis on which the fairness of the trial must be adjudicated.
The
other three issues are matters of law; the hearsay evidence, the
confession by the 2
nd
appellant and the permissibility thereof against the 1
st
appellant and himself and lastly; prove of attempted rape. The
conspectus of evidence is vital. (
S
v Trainor
2003 (1) SACR 35
SCA) The golden rules applicable to appeals will be
the compass.
III
THE LAW: APPEALS
[6]
The general principles according to which a court of appeal should
consider the case are set out in
R v Dhlumayo
1948 (2) SA 677
(A).
6.1
The court
of appeal must bear in mind that the trial court saw the witnesses in
person and could assess their demeanour. That was
stated seventy
years ago and it is still true; especially in cases where sexual
offences are involved. If there was no misdirection
of facts by the
trial court, the point of departure is that its conclusion was
correct.
6.2
The court
of appeal will only reject the trial court’s assessment of the
evidence if it is convinced that the assessment is
wrong. If the
court is in doubt, the trial court’s judgment must remain in
place (
S
v Robinson
1968 (1) SA 666
(A) at 675H).
6.3
Courts of
appeal have greater liberty to disturb findings of a court
a
quo
when dealing with inferences and probabilities (
Minister
of Safety and Security v Craig
2011 (1) SACR 469
(SCA) at [58]).
6.4
The court
of appeal does not zealously look for points upon which to contradict
the trial court’s conclusions and the fact
that something has
not been mentioned does not necessarily mean that it has been
overlooked.
IV
RULING ON POTENTIALLY INADMISSIBLE EVIDENCE AND EVIDENCE IN
GENERAL
[7]
Trial courts must rule on issues of admissibility and do so
timeously. These courts must provide reasons for findings. They
must
diligently apply their minds and cause procedural safeguards against
unfair hearings and misfortune to the administration
of justice. What
might be a strong case on the word of the victims of crime might
become a sad acquittal of criminals that burdens
the balance of
righteousness and justice in a democratic society.
[8]
In
S
v Van Der Berg and Another
2009
(1) SACR 661
(C) it was correctly stated that the failure to give
reasons for findings in trial courts places the Court of Appeal at a
distinct
disadvantage. Conflict in evidence is not resolvable solely
by reference to record. The consequence is that it is not possible to
reject the evidence of appellants as not reasonably possibly true.
Therefore, the issue in dispute has to be approached on the
basis of
the evidence tendered by the appellants.
[9]
A presiding officer is under a duty to prevent inadmissible evidence
and may not listen passively as the record is turned into
a “papery
sump of evidence”.’
[11]
[10]
The inadvertent consequence of allowing inadmissible evidence is the
effect it has on the legitimacy of our criminal justice
system.
In
S
v Basson
2007
(3) SA 582
(CC)
the
Constitutional Court ruled that the impartiality of a judicial
officer
[12]
is crucial to the
administration of justice. So too is the perception of his or her
impartiality. The test for independence of
the presiding officer
should include that perception. A judicial officer must not only
conduct the trial open-mindedly, impartially
and fairly, but such
conduct must be “manifest to all those who are concerned in the
trial and its outcome especially the
accused”.
[13]
Inadmissible evidence might be perceived to have contaminated the
final ruling of the trier of fact.
[11]
An accused cannot be ambushed by the late or unheralded admission of
hearsay evidence; or of any evidence for that matter.
The trial
court must be asked clearly and timeously to consider and rule on
admissibility. This cannot be done for the first
time at the
end of the trial, nor in argument, still less in the court’s
judgment, nor on appeal. The prosecution,
before closing its
case, must clearly signal its intention to invoke the evidence and,
before the State closes its case, the trial
Judge must rule on
admissibility. This is so that the accused can appreciate the full
evidentiary ambit he or she faces.
[12]
Whilst,
in casu
, the admissibility of the evidence is
governed, in large measure, by the provisions of
sections 219
and
217
of the CPA and the law on hearsay. The question of admissibility has
significant constitutional implications. Section 35(5) of
the
Constitution of the Republic of South Africa, 1996
provides
that:
“
Evidence
obtained in a manner that violates any right in the Bill of Rights
must be excluded if the admission of that evidence would
render the
trial unfair or otherwise be detrimental to the administration of
justice.”
[13]
There are accordingly two separate but related inquires that have to
be made in determining the admissibility of evidence namely,
whether
the statutory requirements referred to above have been satisfied, and
whether in all the circumstances the accused has
had a fair
trial.
Constitutional
admissibility is paramount.
V
THE HEARSAY EVIDENCE, CONFESSIONS AND
SECTION 219
OF THE
CRIMINAL
PROCEDURE ACT, 51 OF 1977
[14]
Two instances of hearsay evidence that were allowed provisionally
occurred during the trial. The witnesses were never called
to confirm
the veracity thereof. The court did not deal with it in her
judgement.
14.1
The first
occasion
[14]
was the evidence
of Thokozile. Thokozile said that what he/she is going to tell the
grandmother is serious. Thokozile asked why
the grandmother does not
take the complainant to come and stay with them. The grandmother
informed that “P (Complainant)
was found having sex with the
child.” Thokozile got her information from Thamsanqa.
14.2
It was
indeed an oversight by the presiding officer to not declare on the
Thokozile-hearsay in her judgement explicitly. It is however
clear
from her judgement as a whole that she disregarded it and that it was
immaterial to the final conclusion she came to.
14.3
The
Thamsanqa-hearsay is not that simple. The record shows that Thamsanqa
went to M for protection against the 1
st
appellant because he had sexual intercourse with his then 13-year-old
daughter, the complainant. Thamsanqa told M that it was not
the first
time that the complainant had sexual intercourse. M testified that:
“
At the meeting, I
told the people that Thamsanqa said to me he did, it did not feel to
him that it was the first time P had intercourse.
Then accused 1
stood up and said he is satisfied. When we left, I went to accused
2`s home to ask number 2 why did accused number
1 said he is
satisfied after he heard that it was said that Thamsanqa felt that it
was not the first time that sexual intercourse
was held with the
child, he was satisfied with that.”
14.4
M used this
report to confront the 2
nd
appellant and the fatal report of the 2
nd
appellant eventuated therefrom. It is the proverbial fruit from the
poisonous tree. The verbatim evidence of M is the following:
“
Accused number 2…
then accused number 2 said to me: “You know, that person wanted
to run away, because he was afraid
that he will be asked who broke
the virginity of the child.” I then asked him: “In other
words you want to tell me
that that child`s father had intercourse
with her?” He said yes. He then asked me: “Will you be
surprised if I tell
you that I also had intercourse with the child?”
When I was about to ask him more questions Thamsanqa arrived. We
stopped
talking.”
14.5
The court
relied extensively on the above evidence in her judgement without any
ruling on the admissibility against the 1
st
appellant or the 2
nd
appellant. She stated the following about the evidence of M:
“
His version in my
opinion connects the dots that indeed accused 2 admitted to him what
was going on. His version explains accused
1`s behaviour of readily
accepting an apology from Thamsanqa when he knew very well that it
was wrong from Thamsanqa to have sex
with a minor. His version
explains why accused 1 knew, that accused 1 knew that if more noise
was raised surrounding P`s sexual
activities, it will eventually come
out that he is actually the first to have sexual intercourse with his
daughter. This also explains
accused 1`s behaviour and insistence
that the mother should take the child to the clinic for
contraception.
In my opinion when
accused 2 made these admissions to M, he was of the view that all was
done and dusted and their acts will be
buried and forgotten. This
Court therefor accepts M was an independent and truthful witness with
no agenda against the two accused.
The Court also accepts his version
that accused 2 made admissions to him.”
14.6
The
2
nd
appellant`s report is more than a mere admission. Having committed an
act of consensual sexual penetration with a child as contemplated
in
section 15
of the
Criminal
Law (Sexual Offences and Related Matters) Amendment Act, 2007
is a competent verdict on rape.
[15]
The premise will be that the statement of the 2
nd
appellant is a confession and to such an extent that it is fatal
against the 1
st
and 2
nd
appellants. In context with the evidence of the complainant and the
charges it is a confession. It is a confession of an accused
against
a co-accused.
Mudau
v The State
(1148/2016)
ZASCA 34 (29 March 2017)
“
[10]
It is trite that a confession must conform to the rigidly defined
requirements specified in
s 217.
Failure to satisfy any of the
requirements will render it impermissible to tender the statement as
a confession. In
R
v Becker
it
was said that a confession can only mean an unequivocal
acknowledgment of guilt, the equivalent of a plea of guilty before a
court of law. It is therefore an extra-curial admission of all the
elements of the offence charged. Similarly in
R
v Hans Veren & others,
it
was said that the accused must in effect have said ‘I am the
man who committed the crime’. Thus, a statement will
not be
regarded as a confession where it is made with an exculpatory intent.
The decisive factor is whether the accused has admitted
all the
essential elements of the offence.”
VI
THE ADJUDICATION OF THE FACTUAL EVIDENCE BY THE COURT
A
QUO
[15]
The
complainant`s case
[16]
15.1
The issues
that crystallised against the evidence of the complainant is her lies
to her mother, her lies about previous sexual intercourse,
the
reporting of the rapes and the act of rape.
15.2
“
Reporting
of a rape is not an exact science.” The Acting Judge had the
correct approach when she also noted that:
“
One of the
accepted principles in sexual offences cases is that the complainant
is expected to make a report at the earliest convenience.
This,
however does not mean that failure to report timeously means a person
was not raped. We have to look at the circumstances
surrounding the
failure.
[17]
”
In this instance it is
common cause that the complainant has had sexual intercourse with
Thamsanqa and possibly her boyfriend.
15.3
According
to the trial court the reporting of the incident with Thamsanqa had
catastrophic consequences for the complainant. At
the age of 13 the
complainant had intercourse with a 24-year-old man. She reported it
as rape. The complainant explained why she
reported the intercourse
to be without consent. She testified that she first refused but
Thamsanqa was angry and she gave up and
consented. In the youthful
laypersons mind, she did not know that subjected to threats it does
not amount to consent. She clearly
knew that it was wrong and will
draw the annoyance of her parents and other adults. During the family
meeting around the issue
Thamsanqa`s defence was that it was
consensual intercourse. The manner in which the matter was dealt
with, according to the trial
court, shows that Thamsanqa was given
the benefit of the doubt; even by her own father. They were
admonished.
15.4
The court
a
quo
held that it is therefor, not surprising that after the first and
second incident with the 1
st
appellant she was afraid to tell and thought that her father will
assault her. According to her he did threaten her with violence
after
the incidents occurred.
15.5
Right after
the third incident with her father she went to the 2
nd
appellant, told him what is happening and requested him for
assistance. She did not want her father to be arrested, she only
wanted
him to stop.
15.6
At this
instance she was informed by the pastor and friend, the 2
nd
appellant, that helped her in the Thamsanqa-incident and whom she
trusted, that she must not tell her mother because it will “break
the families.”
15.7
The
complainant told the court that her paternal grandmother did not want
to believe her and called her a liar.
15.8
She loved
her father and her testimony reflects it. The judgement of the court
a quo
:
“I tried my level best to find out why would P choose the two
people she respected most and implicate them. Bearing in mind
that
one is the father she loved so much and whom she had no problems
with. I could not find an answer to this, even though I tried
my
best. She was right when she said that she thought they will not
believe her. It was her word against two figures of authority
in the
community.”
15.9
She did not
go straight to the authorities, according to the court
a
quo
,
because during the incident with Thamsanqa there was a family
meeting, everybody apologised and that was the end. She decided
to
follow this route. The complainant does not want anything bad to
happen to the two accused. All she asked for was for the pastor
to
speak to her father to stop.
15.10
The court
summated that rape is not child`s play and there are no hard and fast
rules as to how people should behave or what they
should do after
going through the experience. Not everybody tells the first person
they come across. People behave differently
and cannot be expected at
all times to tell the first person they come across.
15.11
The
credibility of the complainant was investigated and pondered by the
presiding officer. She warned herself that the complainant
is a
single and child witness. The reality, she pointed out, is that it
will never be surprising that a victim of a sexual offence
will be a
single witness considering the act itself. As she stated: “There
is no man that will have sexual intercourse with
a minor in the open,
especially if the minor is a daughter of a follower in the church.”
15.12
The court
found that she had ample opportunity to observe the complainant. She
did not strike the court as an imaginative child
open to suggestions
by others. She remained calm and focused, did not mingle her words
and withstood lengthy cross examination.
She was precise and did not
exaggerate.
15.13
The
“sameness” of her evidence was criticized by the defence.
She testified that the appellant would put her on the
bed, open her
thighs and undress her. The presiding officer found that she did
however point to differences. In one instance she
was at home looking
after her siblings and he send them to the shop, during the other
incident the grandmother appeared, during
all three incidences the
mother was away. She remembered where the mother was each time; once
in Botshabelo, then in Soeklaagte
and during the last incident at her
parental place.
15.14
The above
counters the allegation that the grandmother suggested to her to
report the rape. There is just too much detail.
15.15
The trial
court was cautious and she pondered the contradictions. Her
conclusions hereon cannot be faulted. The contradictions were
explicable and immaterial. The contradictions point to an absence of
collusion between the witnesses. It was in regard to the reporting
and the confusion was inconsequential if the totality of evidence was
regarded.
15.16
As to the
act of sexual penetration it was never disputed or questioned during
the trial. All and everybody present knew what was
being spoken of.
Medical evidence would have been moot because the incident was
reported long after the intercourse and the complainant`s
body would
reflect familiarity with sexual intercourse. The complainant
testified: “He placed his penis in my vagina.”
[18]
15.17
The rape of
the complainant on the version of the complainant as supported by
peripheral evidence caused a defendable case against
the two
appellants.
The
Appellants’ Cases
[16]
The 1
st
Appellant
16.1
He had a
good relationship with his daughter, the complainant, until the day
he was arrested. He, from the beginning denied that
he ever raped
her.
16.2
On a Sunday
evening in September 2015 they were at the 2
nd
appellant`s place. At some time during the evening he realised that
the complainant was not there. After a while and after the
mother
went looking for her; the complainant returned and called the 2
nd
appellant aside. Both returned and informed him that Thamsanqa had
raped her.
16.3
The parents
of Thamsanqa was called and a family meeting was held the next day.
It concluded with the complainant admitting that
their sexual
intercourse was consensual and that she lied about the rape.
Thamsanqa is a 24-year-old man. The complainant was 13
years old at
that time. Everybody decided not to report the matter to the police
and the complainant as well as Thamsanqa was admonished.
16.4
On a Friday
in September 2016 there was a meeting at the 1
st
appellant home where the maternal grandmother of the complainant
disclosed that the complainant reported sexual abuse by the 1
st
appellant to her.
16.5
The
maternal grandmother informed that the complainant told the school
and her friend Thokozile. Thokozile then informed the maternal
grandmother. The complainant reported here that the 2
nd
appellant also raped her. 2
nd
Appellant was called and he denied the report to him by the 1
st
appellant as well as having raped the complainant.
16.6
1
st
Appellant accused the maternal grandmother of suggesting evidence to
the complainant. She instigated the whole case against the
two
appellants. The reason for the animosity is because she owes him
money. This was never put to the maternal grandmother during
her
testimony. The first instance mention was made of it was during the
testimony of the 1
st
appellant.
16.7
Hereafter
the 1
st
appellant was confronted with the fact that he did not mention the
above in his warning statement. He only implied that the complainant
is implicating him because:
“
I deny all the
allegations made against me. I elect to declare that the problem
started when I asked my wife to reprimand our daughter
not to roam
around during the night. And I declare that I talked with my wife
that, please to make sure that our daughter…”
He could not explain why
he did not mention the money-issue with the maternal grandmother in
the warning statement and blamed the
complainant for the false
allegations.
16.8
M
implicated the 1
st
appellant and they were only known to each other from playing soccer
together. The 1
st
appellant did not give an indication as to why M would implicate him
falsely except to say that they sometimes argued about “male
things”.
16.9
As to why
the 2
nd
appellant would be implicated, the explanation was that 2
nd
appellant should have been a witness against 1
st
appellant and when he refused his family in law implicated the 2
nd
appellant also.
16.10
The 1
st
appellant could not explain why he allowed Thamsanqa to “get
away” after having had sexual intercourse with his 13-year-old
daughter.
[17]
The 2
nd
Appellant
The
2
nd
appellant confirmed the incident with Thamsanqa. He could not explain
why M visited him and then afterwards implicated him in the
rape, why
the complainant accused him of rape. All these people got along well
with him. His evidence was in general, a bare denial.
[
18]
Finding
of the trial court
18.1
The trial
court found the versions of the appellants unsteady. She warned
herself that a court cannot expect from an accused to
know the motive
of false implication. She found that although both the accused denied
rape, they did not deny specific allegations
but attacked the sexual
history and conduct of the complainant. They “came with
completely new versions” that was never
put to any of the
witnesses. Specifically, the above reasons why they are being falsely
implicated. She could not accept the versions
of the appellants as it
was. There was, of course also the contradictions between their
evidence in regard to a meeting that took
place between them after
the accusations.
18.2
The
appellants were convicted on the strength of the above.
VII
DID THE EVIDENCE CONFIRM ATTEMPTED RAPE ON THE THIRD COUNT?
[19]
As stated, an issue that needs consideration is whether the
conviction of attempted rape was correct. The court, again, did
not
rule on the matter and the Court of Appeal is left at the mercy of
the record.
[20]
The evidence is that the father locked the door, undressed himself
and the complainant, and at that stage the other children
returned.
That is the sum total of the evidence on the conviction on attempted
rape. It does not comply with the law on attempt
in criminal matters.
[21]
Snyman
[19]
stated:
“
A
person is guilty of attempting to commit a crime if, intending to
commit that crime, she unlawfully engages in conduct that is
not
merely preparatory but has reached at least the commencement of the
execution of the intended crime. A person is guilty of
attempting to
commit a crime even though:(a) the commission of the crime is
impossible, if it would have been possible in the factual
circumstances which she believes exist or will exist at the relevant
time;(b) she voluntarily withdraws from its commission after
her
conduct has reached the commencement of the execution of the intended
crime.”
VIII
CONCLUSION
[21]
The court
a
quo
relied heavily on the evidence of the complainant to convict. The
conspectus of the evidence, however does not point to a fair
and
properly considered conviction. The appellants did not receive a fair
trial.
[22]
To reiterate; the court did not rule on the admissibility of any of
the evidence. Not the confession by the 2
nd
appellant that implicated him unequivocally in the crime, nor the
section 219
-confession against the 1
st
appellant, nor the hearsay evidence of Thamsanqua and Thokozile.
The case is riddled with questionable evidence. The misdirection
by
the court to allow the questionable evidence as corroboration of the
complainant’s evidence is severe indeed.
[23]
It is always for the prosecution to prove the guilt of the accused
person, and that the proof must be beyond reasonable doubt.
The
standard is not part of a charter for criminals and neither is it a
mere technicality. The standard of proof is universally
required in
civilised systems of criminal justice, and a core component of the
fundamental fair trial right that every person enjoys
under section
35(3
)
of the Constitution.
[20]
[24]
The evidence of the confession and hearsay remains inadmissible
against the appellants. The question remains whether their
convictions ought to be upheld on the remaining admissible evidence.
The answer is in the negative. The evidence does not,
as a
whole, convince of justifying the appellants` conviction.
[25]
There is a strong suspicion against the appellants on the face of the
complainant’s evidence alone. Crimes of this
nature are
horrendous and understandably, evoke exceptionally strong emotions
from many quarters in society. Be that as it
may, the
appellants cannot, in these circumstances, be convicted merely
because the Court finds the complainant`s version devoid
of malice.
Convictions based on suspicion or speculation are “the hallmark
of a tyrannical system of law” and “South
Africans have a
bitter experience of such a system and where it leads to.”
[21]
That system cannot and ought not, in our constitutional democracy, be
stood for.
[26]
The statutory and constitutional requirements referred to above have
not been satisfied, and the appellants’ trial was
not fair.
[27]
ORDER
In
the result, the following order is made:
The
appeal by both the appellants is upheld and the convictions against
the 1
st
and 2
nd
appellants are set aside.
_________________
M.
OPPERMAN, J
I
concur.
_______________
C.
REINDERS, J
In
concur.
_______________
J.
J. MHLAMBI, J
On
behalf of the appellants: Adv. P. W. Nel
Instructed
by:
Legal
Aid
BLOEMFONTEIN
On
behalf of the respondent: Adv J BothaAdv. Nameka
Instructed
by:
Director:
Public Prosecutions
BLOEMFONTEIN
[1]
The appellants were sentenced; in
toto, to 20- and 15-years imprisonment respectively. The appellants
were assisted by Legal Aid
South Africa. The consequences of
section
51(1)
of the
Criminal Law
Amendment Act 105 of 1997
were explained to them and they took proper cognisance thereof. The
complainant testified with the assistance of an intermediary.
The
record shows that the procedure was proper.
[2]
Section 3
of
Act
Act
45 of 1988
(Hearsay-act)
reads:
(1) Subject to the provisions of any
other law, hearsay evidence shall not be admitted as evidence at
criminal or civil proceedings,
unless─
(a) each party against whom the
evidence is to be adduced agrees to the admission thereof as
evidence at such proceedings;
(b) the person upon whose credibility
the probative value of such evidence depends, himself testifies at
such proceedings; or
(c) the court, having regard to─
(i) the nature of the proceedings;
(ii) the nature of the evidence;
(iii) the purpose for which the
evidence is tendered;
(iv) the probative value of the
evidence;
(v) the reason why the evidence is
not given by the person upon whose credibility the probative value
of such evidence depends;
(vi) any prejudice to a party which
the admission of such evidence might entail; and
(vii) any other factor which should
in the opinion of the court be taken into account,
is of the opinion that such evidence
should be admitted in the interests of justice.
(2) The provisions of subsection (1)
shall not render admissible any evidence which is inadmissible on
any ground other than that
such evidence is hearsay evidence.
(3) evidence may be provisionally
admitted in terms of subsection (1)(b) if the court is informed that
the person upon whose credibility
the probative value of such
evidence depends, will himself testify in such proceedings:
Provided that if such person does
not later testify in such
proceedings, the hearsay evidence shall be left out of the account
unless the hearsay evidence is admitted
in terms of paragraph (a) of
subsection (1) or is admitted by the court in terms of paragraph (c)
of that subsection.
(4) For the purpose of this section─
‘
hearsay evidence’ means
evidence, whether oral or in writing, the probative value of which
depends upon the credibility
of any person other than the person
giving such evidence;
‘
party’ means the accused
or a party against whom hearsay evidence is to be adduced, including
the prosecution
[3]
Hereafter referred
to as “P”.
[4]
Record page 251, lines 13-5.
[5]
Contravention of the provisions of
section 3 read with sections 1, 50, 55, 56(1), 58, 59, and 60 of Act
32 of 2007 and read with
sections 256
,
257
and
261
of the
Criminal
Procedure Act 51 of 1977
, read with the provisions of
section 51(1)
and Schedule 2 of the Criminal Law Amendment Act 105 of 1977.
[6]
Contravention of the provisions of
section 55 read with sections 1, 50, 56(1), 58, 59, and 60 of Act 32
of 2007 and read with
sections 256
,
257
and
261
of the
Criminal
Procedure Act 51 of 1977
, read with the provisions of
section 51(1)
and Schedule 2 of the Criminal Law Amendment Act 105 of 1977.
[7]
The State`s case consisted of the
evidence of the maternal grandmother, the complainant, the
intermediary, the complainant`s mother
and the person (Hereafter
referred to as “M”) to whom 2
nd
appellant allegedly confessed. There was not any Medico-Legal
evidence adduced. The appellants cases consisted of their own
evidence.
[8]
Hearsay-witness.
[9]
Thamsanqa and Thokozile.
[10]
CPA.
[11]
S v Molimi
supra at [36].
[12]
Van
Rooyen & others v The State & others (General Council of the
Bar of South Africa Intervening)
[2002]
ZACC 8
;
2002
(5) SA 246
(CC)
[2002] ZACC 8
; ;
2002
(8) BCLR 810
(CC)
at [32].
[13]
S v Le Grange &
others
[2008]
ZASCA 102
;
2009
(1) SACR 125
(SCA)
at [16].
[14]
Record page 11 line 15 to page 12
line 19.
[15]
Criminal procedure Act 51 of 1977:
Competent verdicts
Section
261 Rape, compelled rape, sexual assault, compelled sexual
assault and compelled
Sexual
Assault.
(1) If the evidence on a charge of
rape or compelled rape, as contemplated in
sections 3
or
4
of the
Criminal Law (Sexual Offences and Related Matters) Amendment Act,
2007
, respectively, or any attempt to commit any of those offences,
does not prove any such offence or an attempt to commit any such
offence, but the offence of—
(
a)
assault with intent to do grievous bodily harm;
(b)
common
assault;
(c)
sexual
assault as contemplated in section 5 of the Criminal Law (Sexual
Offences and Related Matters) Amendment Act, 2007;
(d)
compelled
sexual assault as contemplated in section 6 of the Criminal Law
(Sexual Offences and Related Matters) Amendment Act,
2007;
(e)
compelled
self-sexual assault as contemplated in
section 7
of the
Criminal Law
(Sexual Offences and Related Matters) Amendment Act, 2007
;
(f)
incest
as contemplated in section 12 of the Criminal Law (Sexual Offences
and Related Matters) Amendment Act, 2007;
(g)
having
committed an act of consensual sexual penetration with a child as
contemplated in
section 15
of the
Criminal Law (Sexual Offences and
Related Matters) Amendment Act, 2007
; or
(h)
having
committed an act of consensual sexual violation with a child as
contemplated in
section 16
of the
Criminal Law (Sexual Offences and
Related Matters) Amendment Act, 2007
, the accused may be found
guilty of the offence so proved.
(2) If the evidence on a charge of
sexual assault, compelled sexual assault or compelled self-sexual
assault as contemplated in
sections 5
,
6
or
7
of the
Criminal Law
(Sexual Offences and Related Matters) Amendment Act, 2007
,
respectively, does not prove any such offence but the offence of—
(a)
common
assault or;
(b)
having
committed an act of consensual sexual violation with a child as
contemplated in
section 16
of the
Criminal Law (Sexual Offences and
Related Matters) Amendment Act, 2007
.
[16]
Cele v State
(AR191/13) [2016] ZAKZPHC 4;
[2016] 2 All SA 75
(KZP) (12 January
2016):
“
[1] How does an appeal court
approach the evidence of a single witness, a child testifying at the
age of eight years about an
accused allegedly raping her three years
earlier? With caution and common sense, the authorities say.
Children are both ‘highly
imaginative’ and open to
‘suggestions by others’. Caution in the context means
applying common sense to assess
whether the truth has been told and
the evidence is trustworthy. Caution cannot displace common sense.
Credibility must be assessed
‘in the light of all the
evidence’. Caution is exercised not inflexibly but practically
to avoid ‘injustice
to the innocent’ and, I add, the
injured. The trier of fact should be aware of the risks of a
wrongful conviction arising
from the evidence of a single witness in
the prosecution of a sexual offence and, I add, a guilty person
being erroneously let
loose on society. The traditional assumption
that the motive to falsely implicate an accused is prevalent in
sexual offences
must be balanced with the ever-increasing prevalence
of rape, particularly of children, often by people they know.
Corroboration
as independent evidence that confirms the testimony of
a witness provides a safeguard. To be relevant and material such
corroboration
must point to the guilt of the accused.
[2] Consistency is another safeguard,
bar the rule against self-corroboration. Reporting the offence
is not corroboration
but goes to consistency of the complainant’s
version. Demeanour is not decisive of a witness’s credibility
but could
reinforce an objective assessment on the possibilities.
Against the backdrop of these trite rules of evidence I turn to
analyse the evidence in this case.”
[17]
Record page 233,
lines 13-17.
[18]
Record page 60
line 15 to page 61 line 5.
[19]
Criminal Law,
Author: CR
Snyman BA LLD (UOFS), Professor of Criminal and Procedural Law,
University of South Africa, Advocate of the High
Court of South
Africa
Last Updated: 2014 - Sixth Edition at B Attempt,
pages 277 to 285.
[20]
S v T
2005
(2) SACR 318
(E)
at 37.
[21]
S v Molimi
supra
at [53].