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[2018] ZAKZPHC 66
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Dlamini v S (AR 713/17) [2018] ZAKZPHC 66; 2019 (1) SACR 467 (KZP) (9 November 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: AR 713/17
In
the matter between:
G
M DLAMINI
Appellant
and
THE
STATE
Respondent
Order
made on 9 November 2018
(a)
The appeal succeeds;
(b)
The appellant’s conviction and sentence are set aside; and the
decision of the court a quo is altered to read:
‘
The
accused is found not guilty and is discharged’.
JUDGMENT
MASIPA
J (OLSEN J concurring):
Introduction
[1]
On 9 November 2018, this court granted the order set out above and
undertook to provide reasons for its decision in due course.
Those
appear from this judgment.
[2]
This is an appeal in terms of s 309(1) of Criminal Procedure Act 51
of 1977 (‘the CPA’). The appellant was charged
and
convicted on a charge of rape of a ten year old girl and was
sentenced to life imprisonment. He appeals against both conviction
and sentence.
[3]
The appellant raised two main points as the basis for his appeal. The
first one relates to compliance with s 164 of the CPA.
In respect of
this point, it is contended that the elementary questions asked by
the court a quo to the complainant fell short
of the requirements set
out in s 164. In order for the court a quo to satisfy itself
that the complainant, who was eight
years old at the time of her
evidence, could distinguish between the truth and untruths, a proper
enquiry had to be held to establish
her competence. Relying on
Mhlongo v S
(AR272/14) [2015] ZAKZPHC 16 (27 February 2015),
Ms
Hulley
, counsel for the appellant
submitted that it was the responses provided from the enquiry
which would demonstrate whether the child understands and can
differentiate
between the truth and untruths and the consequences of
telling untruths.
[4]
Ms
Hulley
contended that the duty on the presiding officer is
to consider the maturity of the child, the intelligence and whether
the child
possesses a proper appreciation of the duty to speak the
truth. She referred to
S v Raghubar
2013 (1) SACR 398
(SCA).
She submitted that the court a quo failed to satisfy itself that the
complainant understood the nature and import of the
oath as required
in s 162 of the CPA and failed to conduct a competency test.
[5]
Mr
Xaba, counsel for the respondent
argued that all persons
are competent witnesses in terms of s 192 of the CPA. It is common
cause that no person may testify unless
under oath. See S v
Raghubar
and
S v Matshivha
2014 (1) SACR 29
(SCA). Mr
Xaba
submitted that there are exceptions to the norm being the failure by
the witness to understand the import of the oath. It is contended
that this was apparent to the court a quo after it conducted its
enquiry in terms of s 164 of the CPA.
[6]
It is apparent from a reading of the provisions of s 162 of the CPA
that compliance with the section is compulsory except where
s 163,
alternatively s 164 of the CPA are complied with. The relevant part
of the record with the exchange between the court a
quo and the
complainant reveals that the court a quo enquired from the
complainant if the complainant knew what it meant to take
the oath
and her response was that she did not. There was no decision by
the court a quo in respect of compliance with s
162 and nothing to
state that, in view of the complainant’s inability to comply
with the provisions of s 162, it was embarking
on an enquiry in
accordance with s 164.
[7]
Section 164(1) of the CPA provides as follows:
‘
(1)
Any person who, is found not to understand the nature and import of
the oath or the affirmation, may be admitted to give evidence
in
criminal proceedings without taking the oath or making the
affirmation: Provided that such person shall, in lieu of the oath
affirmation, be admonished by the presiding judge or judicial officer
to speak the truth.’
[8]
I conclude from the questions that followed the complainant’s
response in respect of the oath that the court a quo embarked
on an
enquiry to admonish the complainant. Amongst the questions asked by
the court a quo to the complainant, having established
that she was
wearing a pink jacket, was whether it was true to say that she was
wearing a white jacket, which she said would be
a lie. She was asked
whether it was good to lie and she replied that it was not. She was
asked if it was a good thing to tell the
truth and she agreed that it
was. She was then told that the court expected her to tell the truth
in respect of what she saw and
not what she heard, which she agreed
to. Following from this, she was admonished to tell the truth and her
evidence was led.
[9]
As stated in
Director for Public Prosecutions,
Transvaal v
Minister of Justice and Constitutional Development & others
2009 (2) SACR 130
(CC) and
S v Raghubar
the purpose of
testifying under oath, affirmation or admonishment is to ensure that
the evidence given is reliable.
[10]
In
Director for Public Prosecution
para 167, the court stated
that where a child witness cannot convey the appreciation of the
abstract concepts of truth and falsehood
to the court, the solution
does not lie in allowing them to testify but lies in proper
questioning to determine whether the child
understands what it means
to speak the truth.
[11]
In
Matshivha
para 10, the court stated that where a witness
testifies without taking the oath properly, or making a proper
affirmation or being
properly admonished, their evidence lacks the
status and character of evidence and is inadmissible. This principle
was followed
in
S v Machaba & another
[2015] JOL 33133
(SCA).
[12]
In
Matshivha
para 11
,
Zondi AJA stated that for s 164
to be triggered, there must be a finding that the witness does not
understand the nature and import
of the oath. This finding had
to be preceded by some form of an enquiry to determine a witness’s
capacity to understand
the nature and import of the oath. Where it is
found that the witness lacks such capacity, the judicial officer
should establish
whether the witness can distinguish between truths
and lies. If such capacity exists, then the witness should be
admonished.
[13]
In my view, the process set out in
Matshivha
, in determining
whether to apply the provisions of ss 162, 163 and 164, is that there
must firstly be an enquiry by the judicial
officer to determine
whether the witness understands the nature and import of the oath.
Secondly, a finding must be made from that
enquiry, which finding
would determine whether or not to admonish the witness. The court a
quo did not follow this route and without
enquiring sufficiently on
issues related to s 162 and making its findings, it proceeded to
implement s 164.
[14]
Since the court a quo admonished the complainant, the question is
whether its failure to conduct an enquiry and issue a ruling
in terms
of s 162 constitutes an irregularity. In my view, it does not. I say
so because the provisions of s 162 provide compliance
with s 164 as
an option. However, this court must be satisfied that the provisions
of s 164 have been complied with. The enquiry
conducted by the court
a quo is sufficient compliance, as the court a quo was satisfied ino
established whether the complainant’s
capacity to understand
the nature and import of the oath or their ability to distinguish
between truth and lies. The
Director of Public
Prosecutions
and
Raghubar
set out that the purpose of ss 162, 163 and 164
are to ensure that evidence is given reliably.
[15]
In
Mangoma v S
(155/13)
[2013] ZASCA 205
(2 December 2013),
the court preferred a flexible approach in the establishment of
competence and administration of the oath to
children. The magistrate
was satisfied that the witness was competent to give reliable
evidence. In view of this and the cases
referred to above, I am of
the view that the finding of the magistrate that the complainant was
a competent witness and therefore
that her evidence was admissible,
was correct.
[16]
The second issue in respect of conviction relates to the identity of
the accused and the application of the cautionary rule
on the basis
of the complainant being a single child witness. The complainant, who
was six years of age at the time of the rape,
testified that on the
day of the incident, during or about 5 October 2010, she left her
home to buy snacks when an unknown person
asked her to show him a
place called Canaan. Having directed him to that place, the male
asked that she accompany him there.
[17]
According to the complainant, when the accused approached her, there
were nearby homesteads but the people in those homesteads
were unable
to see them as they were inside the houses. On their way there, they
walked through a forest. The male unzipped his
trousers and strangled
her. He told her to undress herself while he undressed himself
lowering his trousers and underwear to knee
high. He then lay on top
of her, moistened his penis with his saliva and inserted his penis
into her vagina and raped her. She
felt excruciating pain. She was
rescued by her aunts whom she heard calling out for her. The man
dressed up and she dressed up
and went to her aunts.
[18]
The complainant could not recall whether she had told her aunt about
what the unknown male did to her. She could not
describe the
man’s height but mentioned that he was light in complexion. She
attended a pointing out where she pointed the
accused as the person
that raped her. She also made a dock identification. She could not
recall her aunt asking her anything about
the incident on their way
home. On arrival at home, she could not remember if she was asked
anything about the unknown male. Her
aunt and other ladies who were
in their company inspected her vagina to see if she had any injuries.
The complainant’s evidence
was that she did not tell her aunt
as to what happened to her.
[19]
When the accused was arrested, the complainant was not present. Her
evidence was, however, that the police passed her home
to fetch her
and her aunt. They were taken to the police station. She could not
deny that the appellant was photographed at the
time of his arrest
and that the photographs were shown to her and said that she did not
remember. She accepted the proposition
that it was easy for her to
identify the accused as she had seen the photos.
[20]
The evidence of the accused’s aunt, Ngcobile Bridget Mncwango,
confirmed the events of the day. In addition to this,
she stated that
she became worried when she realised at 17h00, 30 minutes after the
complainant left the house, that she had not
returned and went out to
look for her. Her immediate neighbours had not seen the complainant.
Since it was sunset and getting dark,
she told all her neighbours
that the complainant was missing and they went out in numbers to
search for her. They shouted out her
name and she responded downwards
from a bushy area and was found at 19h30. As the complainant
approached, Mncwango observed that
she was shaking and she kept
falling down.
[21]
According to Mncwango, she asked the complainant why she was there
and the complainant relayed to her of her encounter with
the unknown
male person. She added that the complainant informed her that while
on top of her, the unknown male had moved several
times. She carried
the complainant on her back and they returned home. On their arrival,
she and another lady inspected the complainant
and found a swelling
and some tears showing that something was either inserted or pushed
into the complainant’s vagina. Although
the complainant did not
complain of pains, she was shaking. She corroborated the
complainant’s version that there was no
blood on her panties.
[22]
Upon questioning the complainant, Mncwango was told that the male was
wearing white trousers and black shoes and had her father’s
stature. One of the ladies who was present said that there was
someone that she had seen around at the time when the complainant
disappeared and she suspected that person to be the perpetrator.
Following from this, Mncwango phoned the police who arrived at
her
home and took them to the police station and then to the hospital the
next morning.
[23]
Ms Mncwango confirmed that she was present at the identity parade and
witnessed the complainant pointing out the accused who
was unknown to
her. Her evidence was that she and the complainant were not present
when the accused was arrested. The arrest was
pursuant to the father
reporting the rape to the induna. Although she did not attend the
scene of the incident, she was aware that
a handkerchief was found
there together with the 50 cent coin she had given to the complainant
to buy snacks. Mncwango’s
evidence was that after the incident,
the complainant developed loose bladder syndrome, meaning she cannot
control her bladder
and urinates on herself.
[24]
Since Mncwango was not present when the accused was arrested, she
could not deny his version that there were members of the
public who
took photographs of the appellant with their cellular phones and that
these people were allowed to board the police
van with the appellant
and had continued photographing him.
[25]
The second point relates to the issue of the identity of the
appellant as the perpetrator of the offence. The provisions of
s 208
of the CPA provide that an accused may be convicted on the evidence
of a single witness if the evidence given is satisfactory
and given
by a competent witness. In
S v Chabalala
2003 (1) SACR 134
(SCA) which provided that when dealing with a young single witness,
the correct approach was to weigh up all the elements pointing
towards the guilt of the accused against those which are indicative
of his innocence, taking proper account of the inherent strengths
and
weaknesses, probabilities and improbabilities on both sides and
decide whether the balance weighs heavily in favour of the
State. See
S v Sauls &
others
1981 (3) SA 172
(A) and
S v Van der
Meyden
1999 (1) SACR 447
(W).
[26]
As argued by Ms
Hulley
, the complainant was a single witness
and in terms of the cautionary rule, her evidence must be clear and
satisfactory on all material
respects. The complainant’s
evidence that she had been raped was supported by the medical
evidence. Ms
Hulley’s
argument that the injuries to the
complainant’s vagina were as a result of the examination
conducted by Mngcwango cannot
be sustained since this was raised with
the doctor and was refuted.
[27]
There was no evidence led by the State to say how the appellant was
identified as the perpetrator of the offence which resulted
in his
arrest. The appellant was unknown to the complainant and the only
means of identification she tendered was that he was wearing
white
trousers and was built like her father. There was no evidence to
suggest that there were any distinct features on the complaintant’s
father which would have resulted in the appellant being identified as
the perpetrator.
[28]
The complainant accepted that she had seen the photographs depicting
the appellant prior to attending the identity parade.
It was of
course worrying that when she attended the identification parade,
despite there being at least nine people in the room,
when she was
allowed into the room, she walked straight to the appellant without
looking at the other people who were participating
in the
identification parade.
[29]
In
S v Mthethwa
1972 (3) SA 766
(A) at 768, the court set out
the criteria to be applied in identification cases. Holmes JA
accepted the need for caution when
dealing with evidence of
identification and said that due to the fallible nature of human
beings, it was not enough that the identifying
witness was honest.
The reliability of his observation must be tested. Factors to
consider include lighting, visibility,
eyesight, the proximity
of the witness, his opportunity for observation both as to time and
situation, the extent of this prior
knowledge of the accused,
mobility of the scene, corroboration, suggestibility, the accused’
face, voice, built, gait, dress,
identification parade and the
evidence on behalf of the accused. See also
S v Maphumulo &
another
2010 (2) SACR 550
(KZP).
[30]
In respect of dock identification, in
S v Mdlongwa
2010 (2)
SACR 419
(SCA), it was held that generally this carries little weight
but that it cannot be discounted altogether. Taking into account the
fact that the complainant had seen the appellant’s photographs,
had participated in an identification parade and was of course
seeing
the appellant in the dock, are all factors which would have
influenced her dock identification.
[31]
On the facts of this matter,
it cannot be said
that the state had proved the guilt of the appellant beyond a
reasonable doubt.
I find that the decision arrived at by the
magistrate was wrong and that there was no evidence to link the
appellant to the commission
of the offence. Consequently, I find that
the court a quo misdirected itself in convicting the appellant.
Thus the order
of 9 November 2018.
MASIPA, J
OLSEN,
J
APPEARANCES
:
For
the Applicant:
Ms
Hulley
Instructed
by:
Justice
Centre – Legal Aid South Africa, Durban.
For
the Respondent:
Mr Xaba
Instructed
by:
Director of Public Prosecution, Durban.
Matter
heard on:
9
November 2018.
Judgment
delivered:
9 November 2018.
Reasons
for Judgment:
27 November 2018.