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[2016] ZANCHC 11
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Smit v S (CA&R43/2016) [2016] ZANCHC 11 (4 August 2016)
SAFLII
Note:
Certain personal/private
details of parties or witnesses have been redacted from this
document in compliance with the law
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SAFLII
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IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape High Court, Kimberley)
Reportable:
NO
Circulate
to Judges: YES
Circulate
to Magistrates: NO
Circulate
to Regional Magistrates: NO
CASE
NO: CA&R43/2016
DATE
HEARD: 01/08/2016
SIGNED:
04/08/2016
In
the matter between:
EDWARD
SMIT
Appellant
and
THE
STATE
Respondent
Coram:
Olivier J
et
Erasmus AJ
REASONS
Olivier
J
[1.]
The
appellant appeared in the Regional Court, Postmasburg, on a charge of
having committed an act of sexual penetration with the
15 year old
complainant, in contravention of the provisions of section 15(1) of
the
Criminal
Law (Sexual Offences and Related Matters) Amendment Act
[1]
(“
the
Act
”).
The appellant, according to the charge sheet a 40 year old male,
pleaded not guilty to the charge and in explanation
of his plea
stated that his defence was a denial of all allegations and that
everything was placed in dispute. The appellant
was convicted
as charged and was sentenced to 5 years imprisonment, conditionally
suspended for a period of 5 years. Leave
to appeal against the
conviction was granted on petition and after the hearing of the
appeal the following orders were made:
“
1.
The appeal succeeds and the conviction and sentence are set aside.
2.
The Clerk of the Regional Court, Postmasburg and the Registrar of
this Court are directed to ensure
that the name of the appellant is
removed from the National Register for Sexual Offenders in terms of
Act 32 of 2007.
”
What
follows are the reasons for those orders.
[2.]
On the day of the alleged incident,
31 January 2014, a sport day was held at the school at which the
appellant was a teacher
and the complainant a learner. The
appellant had been tasked with photographing the events. The
complainant was on
her way to the school when the appellant picked
her up in his vehicle and took her with him to his home. This
much was common
cause. It was what happened at that house, and
how long the appellant and the complainant had been there before
returning
to the school, that were the issues in dispute.
[3.]
In cross-examination it was put to the
complainant that the appellant had been on his way home in his
vehicle to fetch a camera
when he came across the complainant and
picked her up. It was put to the complainant that they merely
had a cool drink at
the appellant’s house before leaving and
that they were back at the school by 09:00.
[4.]
The complainant’s version was that
the fact that she was picked up by the appellant had not been a mere
coincidence.
According to her it had been arranged between the
two of them by means of text messages. In cross-examination she
testified
that it was “
Past 08:00
”
when the appellant picked her up. She admitted having been
given a cool drink at the house of the appellant, but she
denied that
that was all that had happened there. According to her she and
the appellant in fact had sexual intercourse in
various ways, and
over a prolonged period of time and in different rooms of the house,
until they eventually arrived back at the
school at about 11:30.
[5.]
The appellant did not himself testify, but
the evidence of two witnesses was presented on his behalf. Mr.
G. R., also a learner
at the particular school, testified that he had
seen the appellant standing at the tuck shop at the school at 09:04
that morning.
He remembered the time, because he had gone to
fetch a cell phone and had noticed the time on the cell phone.
[6.]
Ms Erika Beukes apparently operated a
mobile tuck shop at the sport day. According to her she saw the
appellant standing there
at 08:50. She explained that she was
sure about the time, because she had been waiting for her husband to
deliver something
there at the time.
[7.]
The evidence of Mr Roman and Ms Beukes was
not discredited, or even seriously challenged. On their
evidence the appellant
could clearly not have been at his house from
“
Past 08:00
”
until approximately 11:30, as testified by the complainant.
[8.]
The complainant, on the other hand, was
clearly not a good witness and in her evidence she deviated from the
contents of her police
statement in several respects.
[9.]
It is, with respect, difficult to discern
from the judgment exactly why the appellant was convicted despite the
evidence of Mr Roman
and Ms Beukes. When regard is, however,
had to the subsequent proceedings in the application for leave to
appeal, and to
the questions put to the appellant’s attorney,
it would appear that the attitude of the Regional Magistrate to their
evidence
was that it did not exclude the possibility that the
appellant may have been with the complainant at his house before
being seen
by Mr Roman and Ms Beukes, or thereafter. If this
had indeed been the approach adopted by the Regional Magistrate it
would,
with respect, have been fundamentally wrong.
9.1
In the first place it was, as already mentioned, in any event common
cause that the
appellant and the complainant had been at his house at
some stage that morning.
9.2
The Regional Magistrate seems to have lost sight of the fact that, on
the complainant’s
version, it would not have been possible for
the appellant to have been seen at the school at either 08:50 or
09:04.
9.3
It would in any event not have been good enough if, on the evidence
of Mr Roman and
Ms Beukes, there was “
a
possibility
” that the appellant
may have been with the complainant at his house after 09:00.
What the prosecution needed to prove,
not as a mere possibility but
indeed beyond a reasonable doubt, was that the appellant and the
complainant had indeed been at his
house not only around 09:00 that
morning, but indeed for a long time thereafter.
[10.]
We were of the view that, on this basis
alone, the appeal against the conviction should succeed. There
was, however, another
and even more fundamental problem in the
evidence upon which the Regional Magistrate convicted the appellant.
[11.]
The relevant provisions of section 15(1) of
the Act read as follows:
“
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, ……..”
[12.]
The age of the complainant was therefore an
essential element of the crime with which the appellant had been
charged. Despite
the fact that it appears from the record that
at least the father of the complainant had been present at court at
the time that
her evidence was presented, the only evidence presented
by the prosecution as regards the age of the complainant was her
own.
She testified that her date of birth was 10 February
1998, which would have meant that the incident had taken place less
than
2 weeks before her 16
th
birthday.
[13.]
The
problem is, however, that “
a
statement by a person as to the date when he was born is
hearsay
”
[2]
.
No explanation was proffered by the prosecutor for not presenting
better evidence than this regard the complainant’s
age.
As I have already mentioned, the appellant had placed everything in
dispute in his plea-explanation, which would obviously
include this
element of the crime.
[14.]
The
fact that this evidence had not been objected to or challenged did
not render it admissible
[3]
.
Even if it could, evidence like this would obviously not have had any
evidential value
[4]
.
[15.]
The
facts of this matter are easily distinguishable from those in
S
v Waldeck
[5]
.
In that matter the source of the hearsay evidence had been the
deceased, and therefore unavailable to testify. In
the present
case at least one of the parents of the complainant was available as
a witness. Unlike in the
Waldeck
case, the defence was not in the present matter warned beforehand
that the prosecution intended relying on hearsay evidence.
Lastly, it appears that the court in the
Waldeck
matter was, on the rest of the evidence presented by the prosecution,
satisfied that the deceased would have been a credible source
of the
information. In the present case there is simply no other
evidence than that of the complainant.
[16.]
There had therefore quite simply been no
admissible evidence that the complainant had at the time of the
incident been under the
age of 16 years old. That the
appellant, as a teacher at the school attended by the complainant,
may have been aware of the
age of the complainant, is not the point.
What was concerned here was what the age of the complainant had
indeed at the particular
time been; not what the appellant had
thought it to be.
[17.]
Even in cases like these, where the
interests of young complainants in sexual matters are concerned, the
rules of evidence should
be complied with –
“
Courts
in civil or criminal cases faced with the legitimate complaints of
persons who are victims of sexually inappropriate behaviour
are
obliged in terms of the Constitution to respond in a matter that
affords the appropriate redress and protection. Vulnerable
sections of the community, who often fall prey to such behaviour, are
entitled to expect no less from the judiciary. However,
in
considering whether or not claims are justified, care should be taken
to ensure that evidentiary rules and procedural safeguards
are
properly applied and adhered to.
”
[6]
[18.]
Here the prosecution failed the
complainant. It could, on the face of it, quite easily have
presented better, and indeed admissible,
evidence of the
complainant’s age. It failed to do so, or to explain why
it could not be done.
[19.]
Also
in other respects the manner in which the prosecution of the case was
conducted left much to be desired. The evidence
of a
number of other witnesses, whose evidence could possibly have
assisted, was not presented. This included the family
member to
whom the complainant had made a report
[7]
and people who had according to the complainant apparently been in
possession of incriminating pictures. We trust that Ms
Ilanga,
counsel for the respondent, and her office will take appropriate
steps in this regard.
______________________
C
J OLIVIER
JUDGE
NORTHERN
CAPE DIVISION
I
concur
.
______________________
S
L ERASMUS
ACTING
JUDGE
NORTHERN
CAPE DIVISION
For the
Appellant: Mr R R Bode
(Engelsman
Magabane Inc.)
For the Respondent:
Adv K F Ilanga
(Office
of the Director of Public Prosecutions)
[1]
32
of 2007
[2]
R
v C
1955
(1) SA 380
(K) at 381 G; Compare also
Rex
v Lakhoo
1943 GWLD 10
at 11 – 12;
Rex
v Corris
1931 TPD 471
at 474 – 475;
S
v Mbelo
[2001] JOL 8225
(NC) para 8
[3]
Compare
R
v C
[1955] 1 All SA 297
(C) at 300;
S
v Koralev and Another
2006 (2) SACR 298
(N) at 304a-d;
Kaputuaza
and Another v Executive Committee of the Administration for the
Hereros and Others
1984 (4) SA 295
(SWA) at 312F;
Rex
v Chabane
1948 (1) SA 272
(O) at 276
[4]
Compare
Mapule
v S
[2012]
JOL 29242
(SCA) para [6]
[5]
2006
(2) SACR 120 (NC)
[6]
S
v Stevens
[2005]
1 All SA 1
(SCA) para [1]
[7]
Although
not spontaneously, and only about two weeks after the events.