About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2017
>>
[2017] ZAGPPHC 842
|
|
Nkadimeng v S (A894/2015) [2017] ZAGPPHC 842 (15 March 2017)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
15/3/2017
CASE
NO: A894/2015
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
DLOZI
DAVID
NKADIMENG
Appellant
and
THE
STATE
Respondent
JUDGMENT
MANAMELA,
AJ
Introduction
1.
The Regional Court for the Regional Division of Gauteng, Benoni (the
Trial Court) convicted the appellant on 27 May 2015 on a
charge of
rape.
[1]
The appellant was sentenced by the Trial Court to life
imprisonment.
[2]
He launched this appeal against both conviction and sentence in the
exercise of his automatic right to appeal.
2.
The appellant was accused of raping […] (who was under the age
of 16 years at all material times), between 04 February
2013 and 13
February 2013 at or near Etwatwa, Benoni. Section 51(1) of the
Criminal Law Amendment Act 105 of 1997 (the Minimum
Sentences Act)
[3]
and its accompanying schedule 2 was found to be applicable to the
charge and conviction, hence the sentence of life imprisonment.
[4]
3.
The appellant pleaded not guilty to the charge and was legally
represented throughout the proceedings before the Trial Court.
As
part of his plea explanation, he among others, admitted in terms of
section 220
of the
Criminal Procedure Act 51 of 1977
to have had
sexual intercourse with the complainant. However, the appellant
qualified his admission by stating that on the particular
day he was
"tricked" or seduced by the complainant, whilst drunk and
sleepy, into having sexual intercourse with her.
4.
The complainant died from natural causes on 27 October 2014,
[5]
before commencement of the proceedings before the Trial Court.
However, by the time of her death, she had already deposed to an
affidavit or sworn statement by the police when she laid criminal
charges against the appellant. The affidavit was ruled admissible
by
the Trial Court in terms of
section 3(l)(c)
of the
Law of Evidence
Amendment Act 45 1988
[6]
without demur by the appellant.
5.
Further, the following documents were handed in as exhibits before
the Trial Court by agreement between the parties: the report
by
medical practitioner (colloquially referred to as the J88 Form);
statement by forensic analyst and reporting officer of the
Forensic
Science Laboratory of the South African Police Service in terms of
section 212
of the
Criminal Procedure Act confirming
that the
appellant fathered the complainant's unborn foetus; complainant's
abridged birth certificate stating her birth as on 30
November
1997.
[7]
6.
The appeal came before us on 14 November 2016. After hearing oral
submissions by Mr Adv. F. Van As, on behalf of the appellant,
and
Adv. M.J. Makgwatha, on behalf of the respondent, we reserved this
judgment. We called upon counsel to file heads of argument
by 18
November 2016 on the limited issue of whether a conviction on a
charge of rape of a minor constitute rape as contemplated
by
provisions of the Minimum Sentences Act. We are grateful to counsel
for the heads of argument received. I will deal with this
issue at
the appropriate stage later in this judgment. Next I deal with the
grounds of appeal.
Grounds
of appeal
7.
It is argued, on behalf of the appellant, in terms of both written
and oral argument that the Trial Court erred in finding that
the
State or the respondent had proved its case beyond reasonable doubt
and consequently convicting the appellant. The following
are, among
others, the reasons or grounds advanced by the appellant in support
of this contention:
7.1. by accepting inadmissible
hearsay evidence during the trial;
7.2. by failing to apply the
cautionary rule relating to single witnesses and accepting the
complainant's testimony from her sworn
statement, and versions of
other witnesses on behalf of the State despite various contradictions
and inconsistencies, and
7.3. by finding that the State
had proved the case against the appellant beyond reasonable doubt.
8.
Regarding sentencing the following is submitted as grounds to
challenge the life imprisonment sentence imposed by the Trial Court:
8.1. the sentence of life
imprisonment is shockingly harsh and inappropriate under the given
circumstances of this matter;
8.2. the Trial Court erred in not
finding that substantial and compelling circumstances existed for
deviation from the prescribed
minimum sentence;
8.3. the Trial Court misconstrued
remarks
[8]
by the appellant whilst in the dock regarding feeling responsible for
the death of the complainant in its sentencing of the appellant;
[9]
8.4. there is no evidence that
excessive violence was involved in the incidences and the complainant
also suffered no injuries.
Although it is conceded that any form of
rape is a serious violation of another person, it is submitted that
the life imprisonment
sentence imposed is the ultimate sentence
possible and therefore inappropriate.
8.5. the Trial Court
overemphasised the interests of the community and public demand for
stringent sentences;
8.6. the appellant can be
rehabilitated, but excessively long period of incarceration would
deny the appellant the opportunity to
rehabilitate.
9.
Evidently, the appellant's grounds appear expansive, but most of them
constitutes the appellant's dissatisfaction with the actual
reasons
for judgment, rather than the substantive order made by the Trial
Court, which is not conventional practice.
[10]
In the sum, it is submitted that the Trial Court ought to have
rejected the evidence tendered by the State and discharged the
appellant. In the alternative, it is submitted that, in the event of
conviction of the appellant, the Trial Court ought to have
found
existence of substantial and compelling circumstances justifying
deviation from the ultimate sentence of life imprisonment.
Therefore,
according to the appellant this Court is entitled to interfere with
the findings of the Trial Court.
The
State's or the Respondent's Case
10.
I deem it prudent to follow the sequence in which evidence was given
at the Trial Court and commence with the respondent's case.
Obviously, this being an appeal, the appellant bears the onus to
satisfy this Court that the Trial Court erred in the respects
indicated above. Nothing, in my view, would turn on the sequence of
consideration of the submissions for purposes of this appeal.
11.
The State obviously supports the findings of the Trial Court. Its
main contention is that, the appellant admitted having sex
with the
complainant who was under the age of 16 years and therefore this led
to the impugned conviction and sentence of the Trial
Court. It is
submitted that the appellant's assertion that he was drunk and
seduced is just a desperate attempt to explain how
he fathered a
foetus with his underage […]. It is also submitted in the
alternative that the appellant ought to be at least
convicted of
statutory rape as contemplated in
section 15(1)
of the
Criminal Law
(Sexual Offences and Related Matters) Amendment Act 32 of 2007
.
[11]
12.
As indicated above, the State significantly relied on a sworn
statement deposed to by the complainant. The contents of this
statement [read out to the Trial Court by a member of the police who
took the statement
[12]
]
are briefly along the following lines. During the night of Monday, 04
February 2013, the appellant called the complainant on the
phone
about three times from within the house, but the complainant ignored
him. The appellant then went and got the complainant
from where she
was sleeping into the kitchen. He raped her and closed her mouth.
That was the first incident. The second incident
took place on
Tuesday, 05 February 2013. During the second incident, the
complainant was again asleep and the appellant woke her
up and told
her to follow him into the shack adjacent to room or house where she
was sleeping. He instructed her to undress and
lie on his jacket, and
raped her. According to the complainant's statement there were four
more rape incidents between 06 February
2013 and 13 February 2013.
The appellant threatened her not to tell anyone about the rapes.
However, she told her friends; sister
(who discussed or reported the
issue to other relatives); the school authorities and the police.
There was an argument at the hearing
of this appeal by counsel for
the appellant about the sequence of these reports and significance
thereof. I will revert to this
later.
13.
Apart from the complainant's statement, the State called a number of
witnesses to testify before the Trial Court, including
a young girl
named M.. She testified through an intermediary due to her age. She
referred to the appellant as her uncle and the
complainant as her
aunt. She confirmed essentially one incident of rape, which according
to her testimony took place in the dining
room or kitchen and at the
complainant's home. She explained to the Trial Court that the reason
why she didn't tell her mother
about her uncle's behaviour was
because she was afraid of her uncle. The uncle had previously beaten
her up and also beaten up
her [i.e. M.'s] mother. M. conceded that
she did not know what happened in the kitchen.
14.
The State also called Miss L M, a friend of the complainant to
testify.
[13]
According to this witness, the complainant reported the rape incident
to her and thereafter the school authorities were alerted.
Counsel
for the State actually submitted that the complainant reported the
incident to M first before the others, but as indicated
above the
sequence of the reports is strongly contended. I will deal with this
issue below.
15.
Regarding the fact that the appellant's assertion that he was seduced
into committing the rape, counsel for the respondent submitted
that
there is no complaint for seduction. Counsel further submits that
this version of the testimony is highly improbable for consensual
rape. I will deal with this and other submissions on behalf of the
State below.
Appellant's
or Accused's case
16.
As already indicated above, the appellant denied the rape incident as
stated in the complainant's statement. But, the appellant
admitted
one sexual encounter with the complainant at his place.
17.
He denied the rape incidents alleged in the complainant's statement
and other witnesses on behalf of the State. The State's
case is that,
these incidents occurred at the complainant's home. The appellant
actually denied having visited the complainant's
place during the
time the incidents are alleged to have taken place or for the length
of the period as alleged.
18.
When the appellant was asked why the complainant and other witnesses
would implicate him in the commission of rape, he told
the Trial
Court that it was due to the fact that he had reported the
complainant for missing school. He said he went to the complainant's
school to enquire about the complainant attendance of or absence from
school.
19.
When asked by the Trial Court whether or not he knew the age of the
complainant, the appellant told the Trial Court that he
could not
dispute the fact that she was 16 years old.
[14]
The following were his responses on questions by the Trial Court in
this regard:
"QUESTIONS BY THE COURT:
How old was M. [i.e. the complainant]? --- I don't know her age very
well Your Worship.
But can you estimate? --- I would
not be in a position to.
If somebody says she was below 16
years, would that be the truth?
I will not dispute that."
[15]
20.
As with the State's case, I will deal with these submissions further
and other submissions on behalf of the appellant below.
Analysis
of the submissions
21.
Further from what is stated as the respective parties' cases above,
next I discuss submissions made for purposes of this appeal
on behalf
of the parties under subparagraphs adopted from the grounds of
appeal.
Acceptance
of inadmissible hearsay evidence during the trial?
22.
Counsel for the appellant complained about the Trial Court's ruling
in terms of
section 3(1)(c)
of the
Law of Evidence Amendment Act. His
focus was pinned on these Trial Court's words in the ruling: "the
evidence of those witnesses shall be admitted because the
author of
that kind of evidence is now deceased and it is impossible for the
state to call that [sic] witnesses".
[16]
Counsel mentioned that reference to witnesses, being in plural, as
opposed to just witness was problematic.
[17]
According to him the Trial Court appeared to have accepted as
admissible evidence of all witnesses where there was hearsay in the
case. But, I don't agree with this wholesale interpretation or
treatment of the judgment of the Trial Court. It is not borne by
the
facts and it may well be that the problem arose from transcription of
the record. There is also nothing of substance pointed
out by counsel
to support his contention in this regard. Be that as it may nothing
really turns on this.
Failure
to apply the cautionary rules?
23.
As a general attack on the complainant's statement, it is submitted
on behalf of the appellant that the Trial Court should have
applied
extra caution when evaluating the evidence emanating from the
complainant's statement. Two issues are raised in this regard.
First,
is that there may have been language problems or challenges between
the police witness, who took the statement and the complainant.
Much
is made of the fact that the police witness said that although she
understood the complainant's language (i.e. Zulu), she
wasn't fluent
in the Zulu Language. Second, is that there is no testimony that the
statement was read back to the complainant at
the time it was taken
down by the police. But, there were no objections in both regards
these challenges at the Trial Court. We
raised this issue and, to his
credit, appellant's counsel appeared to appreciate this shortcoming
in the appellant's challenge.
However, my assessment didn't reveal
any evidence to suggest that the contents of the statements were
affected by language differences
or other problems. This issue, in my
view, merit to further attention.
24.
It is also submitted that the Trial Court convicted the appellant on
evidence of a single witness, being the complainant.
[18]
The Trial Court is said not to have approached the matter with the
necessary caution. The following often-quoted passage from
R
v Molwena
[19]
is a useful authority
to begin discussion of this issue with:
"the uncorroborated evidence
of a single competent and credible witness is no doubt declared to be
sufficient for a conviction
by
s 284
of Act 31 of 1917, but in my
opinion that section should only be relied on where the evidence of a
single witness is clear and
satisfactory in very material respect."
25.
The Trial Court accepted as credible and reliable the contents the
complainant's statement. The Trial Court appears to have
been always
alive to the fact that due to the death of the complainant before the
proceedings commenced, the appellant did not
have an opportunity to
cross-examine her. But, other witnesses, particularly her friend M,
who relayed what the complainant's report
before the Trial Court,
represented an opportunity for the appellant to test their evidence.
Further, the evidence of young child
M confirmed a single incident of
rape. M's testimony was outside of the complainant's statement.
26.
Another type of cautionary rule said to not have been applied by the
Trial Court is regarding the testimony of the minor child,
M.
[20]
Appellant's counsel submitted that the Trial Court should have
applied some caution as it is done with children, as it is possible
that M may have been influenced by discussions she had with others
before she testified before Trial Court. But nothing specific
was
brought to the attention of the Court in this regard. The Appeal
Court (as it was then known) offered this useful guide albeit
in a
civil case regarding the evidence of a minor in the decision of
Woji
v Santam Insurance Co Ltd:
[21]
"The question which the
trial court must ask itself is whether the young witness' evidence is
trustworthy. Trustworthiness...
depends on factors such as the
child's power of observation, his power of recollection, and his
power of narration on the specific
matter to be testified."
27.
M testified through an intermediary due to her age. Borrowing from
the principles laid down in the decision of
Woji,
I am
testified from a review of her evidence that she was trustworthy. Her
testimony reveal powerful observation, recollection and
narration. M
told the Trial Court what she observed and was honest enough to admit
that she did not see what happened in the kitchen
after the appellant
took the complainant there from where they were sleeping. This, in my
view, is a hallmark of trustworthiness
and honesty. Therefore, in my
view, M's evidence was correctly found admissible by the Trial Court.
28.
I am therefore satisfied with the way the Trial Court dealt with the
testimonies of the complainant (borne by the statement)
and of M, the
minor child. Nothing from the record indicates that the Trial Court
erred in accepting their testimonies under the
circumstances.
Therefore, I do not agree that the Trial Court failed to apply the
necessary caution.
Contradictions
and inconsistencies between the State's witnesses and complainant?
29.
In this regard, it is submitted on behalf of the appellant that there
were contradictions and inconsistencies in the State's
case.
30.
The main (in my view) contradiction, it is submitted, was the stage
or time in the sequence of events when the complainant told
her
sister about the rapes. According to the appellant, the complainant's
statement say the report to the sister was made before
the report to
the school and the police, but according to the complainant's sister
the report was made after the appellant had
been arrested. But,
counsel was alerted by this Court to the fact that the first report
was made to the complainant's friend M,
who testified before the
Trial Court. From her testimony, it is clear that the school
authorities were alerted and then the police.
[22]
Therefore, whatever shortcomings that may exist in the testimony of
the complaint's sister doesn't really avail the appellant.
Proof
of the charges and conviction
31.
The appellant's main view is that the State's case did not justifying
the conclusion of the Trial Court that there was proof
beyond
reasonable doubt. Apart from what is stated above, there are other
contentions that I will briefly discuss next.
32.
The appellant queried the timing of the alleged rapes, particularly
the dates on which they are said to have taken place. It
is queried
that the complainant was already one month and a few weeks pregnant,
when she was taken to hospital around the same
time when the
appellant was arrested. It is submitted that this goes to the
credibility of the complainant for not mentioning any
prior sexual
intercourse from which she will have been impregnated by the
appellant in her statement. The State's response is that
even though
the charge-sheet refers to incidents in February 2013, the
complainant statement indicates that the complainant was
raped "from
since last year".
[23]
I agree. There is no merit in this argument.
33.
Also the appellant disputes the fact that the complainant screamed
during the rapes, as no evidence confirmed that the other
occupants
of the house heard this. Even the witness M did not report hearing
any screaming and it actually appears that the complainant
was a
willing participant in the incident witnessed by M. It is submitted,
rather curiously so, I must add, that the appellant
disputes the
absence of consent, when the appellant actually disputed sexual
intercourse with the complainant as charged. These
submissions are to
be made to simply be rejected.
34.
Further, counsel for the respondent submitted that M's testimony
accords with the
modus operandi
of the appellant with respect
to the other incidents. Therefore, this strongly suggests or confirms
the commission of the other
rape incidents. According to counsel it
does not matter whether the gist of what was said before the Trial
Court had covered the
rape incident for which the appellant was
impregnated.
35.
Overall, it is also submitted on behalf of the appellant that the
Trial Court heard two conflicting versions and should not
have
dismissed the appellant's version as false. The Trial Court ought not
to have reached a conclusion beyond reasonable doubt
after assessing
the probabilities of the two versions, apart from considering the
credibility and reliability of the witnesses.
[24]
But, I find nothing meriting interference with the conclusions of the
Trial Court regarding the conviction and I have no reasonable
doubt
in this regard.
Complainant's
age and statutory rape
36.
As indicated above, after oral submissions, this Court requested
counsel to furnish written heads of argument as to whether
or not
statutory rape is to be considered similar to rape. In other words,
whether statutory rape carries life imprisonment as
rape,
particularly in terms of the Minimum Sentences Act. Although as I
have indicated above that we are grateful to counsel for
the heads, I
must immediately mention that this may, regrettably, have been an
unnecessary exercise. This will become clear below.
37.
Regarding the age of the appellant, Counsel for the appellant
submitted that the appellant did not have intention to commit
statutory rape as the record clearly shows that he did not know the
exact age of the complainant. According to counsel this should
have
had an impact on the sentence imposed by the Trial Court. It is
submitted that at most the appellant should have been convicted
of
statutory rape, due to the appellant's admission of one incident of
consensual rape. But, even this is denied as the State failed
to
prove that the appellant had the necessary intention to commit
statutory rape. The complainant was the appellant's […]
over
whom he was very protective and even went to her school to make sure
she was not being truant. In my view, the Trial Court
was correct in
accepting as proven the age of the complainant, including from the
admitted certificates.
38.
As indicated above, there is no need to entertain the differences
between statutory rape and rape in this regard. Part 1 of
Schedule 2
of the Minimum Sentences Act,
[25]
read together with section 51 of the same legislation prescribes a
sentence of life imprisonment for conviction of rape of a person
under the age of 16 years
[26]
in the absence of substantial and compelling circumstances. Once the
Trial Court has accepted that the complainant was less than
16 years
old at the time of her death and therefore including when the rapes
were committed, life imprisonment starts to feature.
I do not find
anything the Trial Court could have done differently in this regard.
Sentence
of life imprisonment and substantial and compelling circumstances
39.
It was also submitted on behalf of appellant that the life
imprisonment sentence imposed on the appellant is shockingly harsh
even though there was no indication of serious violence meted out
against the complainant. Further, it is submitted that the
complainant
did not have any prior convictions; the Trial Court
overemphasised the interests of the community and public demand for
stringent
sentences; the appellant can be rehabilitated, but
excessively long period of incarceration would deny the appellant the
opportunity
to rehabilitate.
40.
On the other hand, counsel for the respondent or the State submitted
that life imprisonment is not shockingly harsh and inappropriate,
particularly when considering that the appellant is related to the
complainant; the complainant was younger than the appellant;
and the
complainant was in a vulnerable position to the appellant and the
appellant abused a position of trust, as should have
been the one
taking care of the children.
41.
Considering the factors of this matter it is submitted that the Trial
Court ought to have deviated from imposition of the prescribed
life
imprisonment due to existence of compelling and substantial
circumstances. I do not view this conclusion or submission to
be
borne by the facts. In my view, there were no compelling and
substantial circumstances to deviate from the prescribed sentence.
Conclusion
42.
Therefore, I could not find any misdirection by the Trial Court
regarding conviction of the appellant on a charge of rape with
a
person under the age of 16 years. With the application of the Minimum
Sentences Act, the Trial Court found no substantial and
compelling
circumstances and imposed the prescribed life imprisonment sentence.
Therefore, the appeal ought to fail.
Order
43.
I therefore propose that the following be ordered:
a.) The appeal against conviction
and sentence is dismissed.
b.) The conviction and sentence
of the Trial Court are confirmed.
K.
La M. Manamela
Acting
Judge of the High Court
A.A.LOUW
Judge
of the High Court
I
agree and it is so ordered
DATE
OF HEARING : 14 NOVEMBER 2016
DATE
OF FURTHER HEADS OF ARGUMENT: 18 NOVEMBER 2016
DATE
OF JUDGMENT : 15 MARCH 2017
Appearances:
For
the Appellant: Adv. F. Van As
Justice
Centre, Pretoria
For
the Respondent: Adv. M.J. Makgwatha
Director
of Public Prosecutions Gauteng Division,
Pretoria
[1]
See the judgment of the Trial Court at indexed pp 112-124 of record;
the charge sheet (i.e. exhibits "A" and "B").
[2]
See indexed pp 129-136. The Trial Court also ordered the appellant's
name to be entered and recorded in the national register
for sexual
offenders in terms of
section 50(l)(a)
of the
Criminal Law Amendment
Act (Sexual
and Related Matters) Act 32 of2007 and to be declared
unfit to possess a firearm in terms of
section 103(1)
of the
Firearms Control Act 60 of 2000
.
[3]
Section
51(1)
of the
Criminal Law Amendment Act 105 of 1997
provides as
follows in the material part: "(1) Notwithstanding any other
law, but subject to subsections (3) and (6), a
regional court or a
High Court shall sentence a person it has convicted of an offence
referred to in
Part I
of Schedule 2 to imprisonment for life.
Part I
of Schedule 2 reads as follows in the material part: "Rape as
contemplated in section 3 of the Criminal Law (Sexual Offences
and
Related Matters) Amendment Act, 2007-
(a)
when
committed- i) in circumstances where the victim was raped more than
once whether by the accused or by any co-perpetrator
or accomplice;
(ii) ... ; (iii) ... ;
(b)
where
the victim-(i) is a person under the age of 16 years".
[4]
See indexed
p I35 of record; annexure "A" to the charge sheet (i.e.
exhibit "A").
[5]
See report by medical practitioner (i.e. J88) on indexed pp 138-141;
death certificate on indexed p 147 of the record.
[6]
Section
3(l){c)
of the
Law of Evidence Amendment Act 45 1988
reads as
follows in the material part: "(1) Subject to the provisions of
any other law, hearsay evidence shall not be admitted
as evidence at
criminal or civil proceedings, unless-
(a)
...;
(b)
...
; 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.". See pp 9-10 of the
record.
[7]
See indexed
pp 138-150 of record.
[8]
The appellant said, among others, the following at the Trial Court
in his evidence-in-chief: "As we speak she is no more
in this
world and it seems as if it is my doing for her to be no more. I
greatly apologise. I am left with no words to say."
See indexed
p 86 of the record.
[9]
See indexed pp 123-124 of the record.
[10]
See
Cape
Empowerment Trust Ltd v Fisher Hoffman Sithole
2013
(5) SA 183
(SCA) at par 39, which cited, with approval, the decision
in
Western
Johannesburg Rent Board and Another v Ursula Mansions (Pty) Ltd
1948
(3) SA 353
(A) at 355.
[11]
Section 15(1)
reads as follows in the material part: "(1) A
person ("A") who commits an act of sexual penetration with
a child
("B") who is 12 years of age or older but under
the age of 16 years is, despite the consent of B to the commission
of such an act, guilty of the offence of having committed an act of
consensual sexual penetration with a child, unless A, at the
time of
the alleged commission of such an act, was-
(a)
12
years of age or older but under the age of 16 years; or
(b)
either 16 or 17 years
of age and the age difference between A and B was not more than two
years.”
[12]
See pp 11-23 of the record.
[13]
See line 23 on page 15 of the record.
[14]
See p 103 of the record.
[15]
Ibid.
[16]
See lines 9-11 on p 10 of the record.
[17]
The Trial Court's ruling is stated as follows: "The evidence of
those witnesses shall be admitted because the author of
that kind of
evidence is now deceased and it is impossible for the state to call
that witness.” See lines 9-11 on p 10
of the record.
[18]
See
section
208
of the
Criminal Procedure Act 51 of 1977
which provides: "An
accused may be convicted of any offence on the single evidence of
any competent witness." See
R
v Mokoena
1932
OPD 79
at 80.
[19]
1932 OPD 79
at 80.
[20]
See
section 170A
of the
Criminal Procedure Act.
[21]
1981 (1) SA
1020
(A) at 1028A-E.
[22]
See pp 16 to 17 and p 27 of the record.
[23]
See p 17 of the record.
[24]
S v Damgazela 2010
JDR 0577 SCA at par 12.
[25]
See footnote 3 above for a reading of
section 51
of the
Criminal Law
Amendment Act 105 of 1997
and its
Part I
of Schedule 2.
[26]
See indexed p 135 of record; annexure "A" to the charge
sheet (i.e. exhibit "A").