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[2018] ZAKZPHC 14
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Heroldt v S (AR429/2017) [2018] ZAKZPHC 14; 2018 (2) SACR 69 (KZP) (11 May 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
APPEAL
CASE NO:
AR429/2017
In
the matter between:
LUCAS
MARTINUS JOHANNES
HEROLDT
Appellant
and
THE
STATE
Respondent
APPEAL JUDGMENT
Delivered: 11 May
2018
MBATHA
J (PLOOS VAN AMSTEL J concurring)
[1]
The appellant was arraigned in the Regional Court, Durban on four
charges, namely, one count of rape in contravention of s 3
of the
Criminal Law (Sexual Offences and Related Matters) Amendment Act 32
of 2007 (the Sexual Offences Act), two counts of sexual
assault in
contravention of s 5(1) of the Sexual Offences Act, and one count of
exposing or displaying child pornography in contravention
of s 19
(a)
of the Sexual Offences Act.
[2]
The appellant pleaded not guilty to all the counts. He was convicted
on 31 August 2010 of rape and one count of sexual assault,
and
sentenced to 15 years’ imprisonment, both counts having been
taken together for purposes of sentence. The appeal is in
respect of
the convictions only.
[3]
The charges giving rise to the convictions and sentence arose from
the report made by the complainant to her father. The complainant,
who was five years old at the time, testified that Uncle Lucas,
referring to the appellant, had penetrated her ‘cookie’
and bum with his ‘willy’ and as a result her ‘cookie’
hurt, and that on diverse occasions, he had touched
her ‘cookie’
and buttocks, licked her ‘cookie’, made her touch ‘his
balls’ and placed ‘his
balls’ in her mouth. This
report set the wheels of justice into motion and culminated in the
arrest and prosecution of the
appellant. It is, however, not
necessary to recapitulate all the evidence led at the trial.
[4]
The appeal turns on whether the complainant was able to appreciate
the difference between the truth and a lie and whether the
guilt of
the appellant was established beyond a reasonable doubt. The basic
principle of our law is that the guilt of the accused
must be proved
by the State beyond a reasonable doubt. No onus rests on the accused
to prove his innocence.
[5]
It is trite that only admissible evidence can be accepted as evidence
in a court of law. It is therefore required of presiding
officers
when dealing with child witnesses to determine whether they have the
competency to testify. The court a quo found that
the complainant was
able to distinguish between the truth and falsehood. The approach by
the court a quo to establish this was
as follows:
‘
Court:
Please ask the witness her full names, please.
Witness:
JG.
Court:
Okay, J, how old are you now?
Witness:
I am five.
Court:
Do you go to school yet or not?
Witness:
Yes.
Court:
What grade?
Witness:
Doing Grade R.
Court:
Grade R. She’s a very young child. Do
you know what it means to
tell lies?
Witness:
Yes.
Court:
Is it good or bad to tell lies?
Witness:
Bad thing.
Court:
And the colour of that top you are wearing today,
is it a pink top?
Witness:
Yes.
Court:
And if someone were to tell you that it’s
a yellow top, would
that be true or would it be lie?
Witness:
Lie.
Court:
Okay, I am happy that you know the difference,
J. The court warns you
that what you tell us today must be the truth, the whole truth and
nothing but the truth, okay?
Witness:
Yes.’
[6]
The above extract from the record reflects that the court was aware
of the complainant’s tender age before posing the
questions to
her to establish if she knew the difference between falsehood and the
truth. The learned magistrate’s questions
were direct and
specific as she enquired from the complainant whether ‘is it
good or bad to tell lies’, which elicited
a response from the
complainant that it was a bad thing to tell lies. To determine if the
complainant understood what she was saying,
the learned magistrate
also made use of the colours of her top to ascertain if she could
make a distinction. The answers proffered
by the complainant in this
regard were clear and precise. There was nothing to suggest that she
could not distinguish between the
truth and falsehood.
[7]
The competency test is often used in relation to child witnesses to
determine if they understand the difference between truth
and
falsehood. This is a prerequisite for the oath, affirmation and an
admonition in terms of
s 164
of the
Criminal Procedure Act 51 of
1977
. The authors
P J Schwikkard
and S E van der Merwe in
Principles of Evidence
4 ed (2016) at
451 state as follows:
‘
Even very young children may
testify provided that they
(a)
appreciate the duty of speaking the truth;
(b)
have sufficient intelligence; and
(c)
and can communicate effectively.’ (Footnote omitted.)
[8]
I am satisfied from the extract from the record above that the
learned magistrate determined that the complainant understood
what it
meant to tell the truth. It however did not end there as the record
clearly reflects that the learned magistrate also admonished
the
complainant. The finding by the learned magistrate that the
complainant was competent to give evidence was re-affirmed by the
manner in which she gave evidence. Her evidence was clear and
consistent throughout, despite the lapse in time from the time of
the
incident to the time when she testified in court. There was nothing
to suggest that she could not distinguish between the truth
and
falsehood.
[9]
It was submitted on behalf of the appellant that the court failed to
exercise the necessary caution when assessing the evidence
of the
complainant and failed to take into account worrisome features of her
evidence such as the use of the words ‘willy’
and
‘cookie’, which words were not clarified to determine
what the complainant was referring to.
[10]
It is patently clear from the record that she was referring to the
male and female genitalia. Parents find appropriate words
to use for
private parts or genitalia when they talk to young children. It has
been accepted that ‘willy’ is an informal
name for
‘penis’ as stated in the
Oxford
Dictionary
.
[1]
The
Urban
Dictionary
describes ‘willy’ as ‘a term used in polite
conversation instead of “penis”’.
[2]
It goes on to say that ‘it is also a term used by kids’.
‘Cookie’ according to the
Online
Slang Dictionary
is described as ‘a euphemism for the female sexual organs’.
[11]
The report given by the complainant to her father was that ‘he
put balls on her face’, using the terminology that
her father
uses for private parts. She used the very same phrase at the Bobbi
Bear Clinic. It was clarified by her mother that
it was only after
this incident that she was taught the word ‘willy’. There
could therefore be no suggestion that anyone
did not appreciate what
she was referring to.
[12]
It cannot be suggested that the appellant was falsely accused of the
charges. The circumstances of this case tend to reduce
the element of
suggestibility as the complainant had just returned from a visit to
the appellant when she reported the incident
to her father. She knew
the identity of her perpetrator and this occurred on multiple
occasions.
[13]
Sections 58 and 59 of the Sexual Offences Act now govern the use of
the evidence relating to previous consistent statements
made by
complainants in proceedings involving sexual offences. Section 58
provides that:
‘
Evidence relating to previous
consistent statements by a complainant shall be admissible in
criminal proceedings involving the alleged
commission of a sexual
offence: Provided that the court may not draw any inference
only from the absence of such previous
consistent statements.’
Section
59 provides that:
‘
In criminal proceedings
involving the alleged commission of a sexual offence, the court may
not draw any inference only from the
length of any delay between the
alleged commission of such offence and the reporting thereof.’
The
parents of the complainant testified in the court a quo as to the
report that was made to them by the complainant.
[14]
Al
though
there is no requirement for corroboration of the evidence of a child
witness, in this case there was independent corroboration
in the form
of a medical report which completely excluded the risks of
suggestibility. In
R
v Manda
[3]
the court held as follows:
‘…
the nature of the
evidence
given by the child may be of a simple kind and may relate to a
subject matter clearly within the field of its understanding
and
interest and the circumstances may be such as practically to exclude
the risks arising from suggestibility. In such circumstances
it might
perhaps be unfortunate if the courts acted upon a rigid rule that
corroboration should always be present before the child's
evidence is accepted.’
[15]
Despite
the presence of the medical report it was strongly argued in favour
of the appellant that the court a quo misdirected itself
by accepting
the medical evidence as presented in the J88 medical form, in the
absence of the testimony of the medical doctor who
examined the
complainant.
[16]
The medical report was handed in by consent in the court a quo and
there were no challenges to the findings by the medical
doctor. The
conclusions made by the medical doctor who examined the complainant
are that the injuries in the vaginal and anal areas
are consistent
with penetration as opposed to the appellant’s version that the
complainant sustained the vaginal injuries
when he accidentally
leaned back on a couch and hit her vagina with his head. Besides the
conclusiveness of the findings by the
doctor, the appellant’s
version does not explain the cuts in the complainant’s vagina
and anal area. The findings by
the medical doctor are conclusive and
are in line with
MM
v S
[4]
where the court stated as follows:
‘
In principle, unless there is
no issue about the fact of rape the doctor should be called as a
witness. Certainly wherever the implications
of the doctor’s
observations are unclear the doctor should be called to explain those
observations and to guide the court
in the correct inference to be
drawn from them.’
The
court a quo also found that the complainant’s evidence was
strongly corroborated by solid medical evidence.
[17]
The medical evidence cannot be evaluated in isolation or be rejected
because there may be an innocent explanation for the clinical
findings. The correct approach is that a court may not decide a case
in the light of inferences which arise only from selected
facts
considered in isolation.
[5]
The
court a quo was correct in finding that the uncontested clinical
findings contained in the J88 slots in with the mosaic of
facts which
the court ultimately found to have been proved and that it did not
stick out like a sore thumb.
[18]
Counsel for the appellant submitted that since the complainant was a
single witness, her evidence needed to be clear and satisfactory
in
every material respect. Counsel submitted that it was riddled with
inconsistencies, contradictions and was unreliable due to
the
suggestibility and susceptibility of the minor child. It is trite
that evidence of a single witness is always treated with
caution, and
in criminal proceedings a conviction will normally follow only if the
evidence is substantially satisfactory in every
respect or if there
is corroboration.
[6]
This
applies to the complainant who is a single witness in regard to the
incidents that she testified about.
[19]
The trial court was satisfied that the complainant’s evidence
was reliable and there could be no reason to believe that
she had
been coached or that it was due to her imaginativeness. In this
respect, the court a quo was alive to the fact that it
was dealing
with evidence of a child witness and treated it with the necessary
caution. The court a quo accepted the evidence of
the complainant and
concluded that although the complainant’s evidence was not
without any blemish, as ‘she did, however,
get mixed up with
her numbers and it was clear she could not count properly’, and
that ‘she did not know how many times
it happened but she was
adamant that it happened numerous times’ and ‘she was
adamant that it was Uncle Lucas that
hurt her, in the way that she
described’, it accepted her evidence as the truth. It
attributed these shortcomings to her
tender age. Our courts have held
that evidence can be satisfactory even if it is open to criticism.
[7]
[20]
Evidence of a previous consistent statement is admissible in sexual
offences cases to show consistency. In this case, the complainant
made a report on her own to her father as he was giving her a bath
that Uncle Lucas put his balls inside her, that her cookie was
sore
and that she licked his balls with her tongue and he licked her
cookie. Her father immediately observed that her vagina was
red
whereafter he confronted the appellant. The report was made shortly
after her return from the appellant’s house and she
knew the
identity of the culprit. The complainant stuck to her version
throughout the trial.
[21]
I am accordingly satisfied that there is no basis to interfere with
the court a quo’s findings that the State had proved
beyond a
reasonable doubt that the appellant is guilty of the crimes of rape
and sexual assault.
[22]
The appeal against the conviction is dismissed.
____________________
MBATHA
J
Date
of hearing: 20 April 2018
Date
delivered: 11 May 2018
Appearances
:
For
the Appellant: Adv L Marais
Instructed
by: Justice Centre
Pietermaritzburg
For
the Respondent: Adv ME Mthembu
Instructed
by: The Director of Public Prosecutions
Pietermaritzburg
[1]
Oxford South African Concise
Dictionary
2 ed (2010) at
1362.
[2]
See Urban Dictionary
https://www.urbandictionary.com/define.php?term=willy.
[3]
R v Manda
1951
(3) SA 158
(A) at 163B-C.
[4]
MM
v S
[2012] 2 All SA 401
(SCA) para 24.
[5]
R v Sacco
1958 (2) 349 (N) at 353.
[6]
Stevens v S
(2005) 1 All SA 1
(SCA) para 17.
[7]
S v V
2000
(1) SACR 453
(SCA) para 2.