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[2016] ZAKZPHC 4
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Cele v S (AR191/13) [2016] ZAKZPHC 4; [2016] 2 All SA 75 (KZP) (12 January 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION,
PIETERMARITZBURG
CASE
NO: AR191/13
DATE:
12 JANUARY 2015
In
the matter between:
T.I
CELE
.............................................................................................................................
APPELLANT
Vs
THE
STATE
....................................................................................................................
RESPONDENT
JUDGMENT
Date
of hearing: 04 November 2015
Date
of judgment: 12 January 2016
D.
Pillay J (dissent)
[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.
[1]
Children are
both ‘highly imaginative’ and open to ‘suggestions
by others’.
[2]
Caution in
the context means applying common sense to assess whether the truth
has been told and the evidence is trustworthy.
[3]
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’
[4]
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
[5]
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
[6]
provides a safeguard. To be relevant and material such corroboration
must point to the guilt of the accused.
[2]
Consistency
is another safeguard,
[7]
bar the
rule against self-corroboration.
[8]
Reporting the offence is not corroboration
[9]
but goes to consistency of the complainant’s version.
[10]
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.
[3]
I am in respectful disagreement with Chili
J. As the nature of the disagreement turns largely on findings of
fact and the inferences
drawn from them I pen my own judgment for
clarity and coherence but alas at the expense of brevity.
[4]
The appellant appeals against his
conviction only for rape. He was sentenced to a term of fifteen (15)
years imprisonment. The charges
arise from a complaint that he raped
a child of five years in 2008. The trial proceeded three years later.
No explanation is evident
from the record for this lengthy delay in
prosecuting the complaint, especially as the complainant reported the
incident immediately
after she was medically examined about 9 days
later.
[5]
The grounds of appeal or rather the attacks
against the prosecution’s case at the hearing of the appeal
were as follows:
1.
There was no medical corroboration for the
complainant.
2.
The complainant’s evidence in court
that she wore a pair of pyjama pants contradicted her statement to
the police, which recorded
her as having said that she wore a skirt
when she was allegedly raped.
3.
The complainant’s mother Ms Magwaza
coached the complainant to report to the police.
4.
The complainant did not make a first report
to Nokthula Cele, her paternal aunt.
5.
Notwithstanding the contradiction in 2
above the learned magistrate misdirected herself by finding the
complainant to be a ‘very
credible and impressive witness’.
6.
The magistrate failed to analyse the
evidence of the appellant.
7.
The complainant went twice to report to the
police station.
8.
Ms Magwaza’s evidence that the
complainant had a rash is not supported by medical evidence.
9.
The complainant did not identify the
appellant in court.
I
will deal with each point in the order presented and respond to the
judgment of Chili J along the way.
Medical
Evidence
[6]
Ms Sikhakhane who represented the appellant
in the trial court consented to the J88 being ‘handed in as
part of the record’
at the commencement of the proceedings when
she tendered a plea of not guilty in terms of
s 115
of the
Criminal
Procedure Act 51 of 1977
. The J88 recorded that ‘signs and
symptoms compatible with vaginal penetration cannot be excluded’
and ‘erythema
noted bruising noted’ on the schematic
drawing of the vagina. Although the appellant denied raping the
complainant he did
not dispute that she could have been sexually
abused. Unsurprisingly therefore the defence elected to admit the J88
and dispense
with leading oral evidence of the doctor who compiled
the J88.
[7]
This is the classic situation identified in
[zRPz]S v MM
2012
(2) SACR 18
(SCA) 21, 24 for dispensing with evidence of the doctor.
The SCA recommended:
‘
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.’
There
was nothing unclear about the doctor’s observations that there
was vaginal penetration, erythema and bruising. The appellant
did not
challenge these observations. On the facts
S
v MM
is also distinguishable. In that
case it was unclear whether penetration had occurred.
[8]
Equally unsurprising therefore senior
counsel, Mr Snyman, who represented the appellant on appeal, did not
rely on
S v MM;
neither
did he criticise the learned magistrate for not calling the doctor to
testify.
The learned magistrate correctly
identified
‘
the
only issue in question that the court (had) to decide (was) who did
this to the child once it became common cause that the child
had been
sexually abused.’
[11]
[9]
The
appellant speculated suggesting that men who drank with Ms Magwaza at
her house might have abused her. Ms Cele introduced evidence
of
glands she allegedly found in the complainant’s ‘inner
thigh close to the private part’.
[12]
Her speculation that these glands somehow caused vaginal penetration,
erythema and bruising has no factual, anatomical or medical
foundation. On being ‘told’ from the bar in the course of
discussion the court heard for the first time that the injuries
might
have ben self inflicted. Respectfully, Chili J speculates from this
that ‘the bruising and erythema could have been
self-inflicted
’
by
the complainant scratching herself. None of these speculations were
put to either of the prosecution witnesses. Significantly,
it was
never an issue at the trial. If self-infliction caused the bruising
and erythema it does not explain away the vaginal penetration.
If
self-infliction were a reasonable possibility then the defence would
have raised it upfront and would not have consented to the
J88 being
handed in as evidence of the doctor’s observations.
[10]
Instead, the high water mark of Mr Snyman’s
submission regarding the J88 was that it did not corroborate the
complainant’s
version because it was done nine days after the
incident. Furthermore the doctor did not indicate whether the
injuries were old
or recent.
[11]
The
fact that the complainant was taken to the doctor on 11 August 2008
nine days after the event, which occurred on 2 August 2008
was no
fault of the complainant or Ms Magwaza. The complainant testified
that she reported the rape to Ms Cele first but the latter
did not
take her for a medical examination. Nor did Ms Cele ‘hit’
the appellant as said she would. Significantly, under
cross-examination the complainant denied that Ms Cele took her to
Kwamakhuta Clinic.
[13]
Therefore Chili J’s findings about Ms Cele that
‘
(s)he
gave undisputed evidence that the child was examined by the doctor….
it was never suggested that she lied about having
taken the
complainant to the doctor’
are
not correct.
It
was her maternal aunt ‘Lungile’ who took her to the
doctor eventually.
[14]
[12]
Ms
Magwaza testified that Ms Cele had informed her telephonically that
the child was bleeding when she urinated and that she suspected
that
the child might have bilharzia. Ms Cele informed Ms Magwaza that she
would take the child to the clinic and Ms Magwaza believed
that she
had indeed done so. When Ms Magwaza called again Ms Cele informed her
that the child was fine.
[15]
As the trial court correctly found that Ms Cele was ‘trying to
protect the accused’
[16]
it is unlikely that Ms Cele would have taken the complainant for a
medical examination. The appellant accepts and relies for its
defence
on the fact that the first time that the complainant was examined was
on 11 August 2008. The contradictions in Ms Cele’s
testimony,
her vagueness about having the complainant medically examined and her
overall performance as a witness discussed more
fully below convinces
me that she did not take the complainant to be medically examined for
rape.
[13]
Ms Cele’s evidence conflicts with the
complainant’s evidence. I note that Mr Snyman does not rely on
Ms Cele’s
evidence at all. When Ms Magwaza had asked Ms Cele to
take the complainant to the doctor, Ms Magwaza was not aware that the
complainant
had been abused as she had not seen her at that stage and
she had not reported to Ms Magwaza. Furthermore as Ms Cele had told
her
that the complainant was fine she would not have seen the urgency
to have the complainant examined immediately. It was Ms Cele’s
duty to have the complainant medically examined. Consequently no
adverse inference against the prosecution witnesses can be drawn
from
the delay of 9 days in seeking a medical examination. As to whether
the injuries were old or recent goes to timing, not that
they did not
exist. The fact that the complainant’s hymen was intact does
not discount penetration.
Consistency
[14]
The primary challenge to the reliability
and credibility of the complainant’s evidence is levelled at
differences between
the complainant’s evidence and her
statement to the police. The only difference the appellant relies on
in its Heads of Argument
relates to what she said she had worn when
she was allegedly raped. Another difference related to where the rape
occurred. The
complainant testified that the rape occurred in a shack
occupied by the appellant. The statement records her as saying that
he
raped her in his house. After the appellant confirmed that he
lived in a shack his counsel correctly abandoned this line of
attack.
However, Chili J takes up two more differences not
pursued as
grounds of appeal. I will also
have to deal with them.
[15]
The complainant testified that the
appellant pulled down her pyjama pants when he raped her. In her
statement to the police she
is recorded as having said that he pulled
down her skirt.
[16]
Under
cross-examination the complainant confirmed that the African police
officer who took her statement read it to her, that he
had written
down what she had told him, and that she had made the statement of
her own free will.
[17]
Notwithstanding the fact that she was 5 years, in grade 1, her
literacy seriously in doubt and the value of her signature
questionable,
the defence asked her about whether she had signed or
written anything on the statement. She denied this but acknowledged
the name
‘Cele’ alongside the space for the ‘victims’
signature where Ms Magwaza’s signature appeared.
[17]
Although the defence meant to hand in the
statement as an exhibit it does not form part of this record.
However, Ms Sikhakhane had
read out the statement to the complainant.
It consisted of about five short sentences. If there were more to the
statement the
parties would have brought it to the attention of the
court. It became common cause and not disputed that her statement
recorded
that the appellant had pulled down her skirt.
[18]
Three
years later when asked to explain differences in the statement and
her evidence she stated ‘when this was being written
down I was
still young, I didn’t know’,
[18]
and ‘I wasn’t talking properly because I was crying.’
[19]
Her response ‘I didn’t know’
[20]
related to the difference between ‘house’ in her
statement and ‘shack’ in her evidence that the appellant
helped to clarify.
[19]
There could be cogent explanations for the
other differences including the skirt-pants difference. For instance,
a person making
a statement to a policeman in a highly emotional
state may not be fully attentive to every word in the statement when
it is read
back to her. If the statement is made in an unfamiliar
language
she might miss some details or nuances. There is no evidence that the
statement in English was translated into IsiZulu
for the complainant.
And when the complainant agreed that the statement read out to her
contained what she said to the policeman
it could be an assumption on
her part on the basis that she would not have expected a policeman to
write anything that she had
not said and attribute it to her. All
these are reasonable possible inferences but they were not fully
explored in evidence.
[20]
The
complainant corrected her cross-examiner saying that she was not
wearing a skirt but a pair of pants when the incident occurred.
[21]
Throughout her testimony the complainant was unwavering in her
evidence that she wore a pair pyjama pants and not a skirt. Whether
she or her mother told the police that she wore a skirt or the police
recorded that in error was not tested fully. Neither party
called the
officer to testify about the circumstances in which he recorded the
statement. The defence who relied on it as a previous
inconsistent
statement ought to have called the policeman. In the circumstances
there is no confirmation that he had recorded the
statement
correctly.
[21]
Notwithstanding
her testimony during examination in chief that she was not wearing
panties but a pair of pyjama pants, under cross-examination
Ms
Sikhakhane unfairly asked her whether there was blood in her panties.
The intermediary reminded Ms Sikhakhane that the complainant
had
already testified that she was not wearing panties.
[22]
A girl of five years wearing a pair of pyjama pants without panties
is more likely than her wearing a skirt without panties, which
is
probably why she was sure of her evidence in court.
[22]
Statements taken by the police are
notoriously imprecise. The purpose for which the police take
statements is to ascertain whether
a crime has been committed, who
the offender is and whether he should be arrested, charged and
prosecuted. Manifestly, given the
brevity and content of the
statement of the prosecution witnesses, they were taken for the
limited purpose of establishing that
a crime had been committed.
Police officers do not necessarily have in mind the production of
such statements during the
trial. To properly prepare a statement by
a witness for trial requires considerably more skill and resources
than most police officers
have.
[23]
Her
evidence that she was crying when she gave her statement
[23]
and that she was too upset when she was taken to make a statement to
the police on the first occasion were not challenged under
cross-examination. Nor did the appellant challenge her emotional
state on appeal. However Chili J appears to doubt this evidence
of
the complainant at paragraph 16 of his judgment because the doctor
recorded on the J88 that the complainant was ‘co-operative
and
calm’. The doctor was based at Prince Mshiyeni Hospital, which
was in the same precinct as the police station. As the
J88 was
completed on the same date (11 August 2008) as the prosecution
witnesses testified that the applicant was too upset to
make a
statement to the police on the first visit, Chili J infers that the
complainant was not genuinely upset.
[24]
Respectfully,
I distance myself from his line of reasoning. Neither the complainant
nor Ms Magwaza were cross-examined as to why
the complainant
presented as “co-operative and calm”
[24]
to the doctor but emotional and crying when she had to make a
statement to the police. In fact the defence did not challenge the
evidence for the prosecution that she was upset on both occasions
when she went to report to the police. I infer from this that
the
defence correctly accepted that a child of 5 years having to give an
account of sexual abuse would predictably be upset. Accordingly,
the
appellant conducted his defence on the tacit assumption that the
complainant had been abused, the only question being: who
abused
her? Furthermore, policemen are more likely to instil fear than
medical doctors. The complainant would also not have
had to recount
the degree of detail to the doctor as she would have when she spoke
to the police. On these facts I cannot draw
an adverse inference
against the complainant as Chili J does.
[25]
At most her statement to the police amounts
to no more than a previous inconsistent statement. The reasons for
the inconsistency
she explained under cross-examination as best as a
child of five could possibly do. She can hardly be expected to
account for what
the policeman wrote. Nor could she as a child
who did not speak English account for what Ms Magwaza narrated to the
police
in English.
In the circumstances to
reject the complainant’s evidence because her statement to the
police, which she did not make under
oath, and which was not properly
proven to be what she said to the police, would be unfair.
[26]
It does not necessarily follow therefore
that the only reasonable inference to be drawn from the inconsistency
is that the complainant
was mendacious or even mistaken when she was
testifying. The inconsistency has to be weighed in the context of all
the evidence.
In the circumstances it cannot be said that the
inconsistency amounts to a contradiction. Furthermore what the
complainant wore
is immaterial to whether the appellant committed the
offence.
[27]
The next difference not raised by the
defence but by Chili J at paragraph 12 of his judgment relates to the
complainant’s
evidence that the appellant followed her into the
shack and her statement that the appellant called her into his house
and that she found him in the house. Other than
showing the difference between the complainant’s evidence and
the statement,
the cross-examination and re-examination did little to
establish the reason for the difference. At least the cross-examiner
should
have attempted to show that the complainant appreciated the
difference before any adverse inference can be drawn. My observations
above in relation to the skirt-pants difference apply equally to the
followed-called/found difference. To expect a clear explanation
from
anyone let alone a child of 8 years why she said ‘called me’
three years earlier is unlikely to yield a reliable
response if for
no other reason but the loss of memory over the passage of time.
Apart from the lapse of time the complainant did
not speak English;
she could not account for the police officer’s choice of words
when he wrote her statement.
[28]
The last difference, which was also not a
ground of appeal but which Chili J regards as a contradiction relates
to the complainant’s
evidence that the incidence occurred
‘during the day.’ Chili J finds that
‘
in
evidence in chief she had testified that the rape incident occurred
in the morning’. The complainant did not testify in
chief about
what time the incident occurred. Neither did she ‘amplify that
version’ nor recant ‘her earlier version
’
.
Linking the pyjamas to the morning Ms Sikhakhane cross-examined the
complainant as follows:
‘
In
your evidence you said that this incident whilst you were wearing
your pyjamas. Was it still in the morning? … It
was
during the day.’ (
sic
)
The
J88 notes that the incident occurred in the morning. ‘In the
morning’
and during the day’
are not mutually exclusive. Unsurprisingly, considering that the J88
was prepared 9 days after the incident
the complainant was more
precise then than she was three years later.
[29]
Whilst on the topic of contradictions it is
convenient to deal with the differences that Chili J finds between Ms
Magwaza’s
evidence, her statement and the complainant’s
evidence. These are also not the appellant’s grounds of appeal.
The fact
that Ms Magwaza’s statement to the police consisted of
only one sentence and her evidence a more detailed account of what
she understood from the complainant’s report cannot amount to a
contradiction. Her single sentence statement to the
police
records the most relevant information to justify arresting the
appellant. Ms Magwaza was at pains to remind the court repeatedly
that she was not present and could therefore not give a personal
account of how the rape occurred. If it was her plot to falsely
implicate the appellant to snatch an advantage in divorces
proceedings against the complainant’s father she would have had
a lot more to say to establish her plot without having to rely on a
child of 5 years. Respectfully, I distance myself from the
adverse
inference that Chili J seeks to draw from the brevity of her
statement to the police and her evidence in court.
[30]
Chili
J takes up as contradictions the issue that Ms Magwaza persisted with
her stance that the complainant had reported to her
that she had
‘found’ the appellant in the shack and that the
prosecution did not lead evidence of the complainant’s
report
to Ms Magwaza. Ms Magwaza’s account of the rape is
hearsay; its relevance is only to establish whether previous
statements by the complainant were consistent with her evidence.
The report to Ms Magwaza was not the first report of the
abuse.
Neither the prosecution nor the defence asked the complainant whether
she reported the incident to her mother. Only the
magistrate asked
her whether Ms Cele was the ‘first’ person she reported
to and she replied ‘Yes’.
[25]
If either party had considered the differences in Ms Magwaza’s
statement, her evidence and that of the complainant to be
material
they would have teased this out during the trial and addressed the
court accordingly on appeal. The fact that they have
not done so
accords with my own view that such differences were immaterial and
should not be elevated to contradictions.
Coached
[31]
Mr Snyman submitted that Ms Magwaza told
the complainant what to say to the police. He conceded at the hearing
that this is not
born out by the evidence. It was also submitted for
the appellant that Ms Magwaza
did not need
to assist the complainant as an IsiZulu speaking police officer had
taken the statement. There is neither evidence
of an IsiZulu speaking
police officer taking the statement from the complainant nor indeed
that an IsiZulu statement was taken.
The only evidence and
explanation for Ms Magwaza
assisting the
complainant emanated from the complainant herself.
[32]
The prosecution witnesses were adamant that
Ms Magwaza did not tell the complainant what to say. She merely
assisted the complainant
as her child especially as she did not speak
English. That this evidence emerged spontaneously during
cross-examination of a child
witness eschews any inference that such
evidence might be false. Further, Ms Magwaza’s reluctance to
comment on the rape
during her testimony because she was not present
fortifies her evidence that she did not coach the complainant. If she
did coach
the complainant as alleged by the defence then this should
have been obvious to the police officer recording the statement. If
the police had reason to doubt the authenticity of the report they
would not have risked a malicious prosecution.
[33]
At paragraph 17 of his judgment Chili J
assumes that Ms Magwaza assisted the complainant in the interview
with Dr Naidoo because
she knew English better. On this assumption he
seems to suggest that Ms Magwaza might have given Dr Naidoo false
information about
the complainant being sexually abused. This was
never canvassed in evidence and certainly not the case for the
defence. Underpinning
Chili J’s assumption is his further
assumption that Dr Naidoo communicated in English hence Ms Magwaza
would have assisted
the complainant to communicate with the doctor.
This assumption arises from stereotyping Dr Naidoo as a person does
not speak IsiZulu
because he or she does not have a Zulu name. There
is no basis for such an assumption. To draw any inference from
unsubstantiated
facts is manifestly a misdirection.
[34]
For proof that the complainant was coached
the appellant pointed to the complainant’s description of the
rape. Appellant’s
counsel contended that the police had coached
complainant to say that the appellant inserted his penis and made up
and down movements.
Given the prevalence of this description in
sexual abuse cases counsel correctly attributes the vocabulary to the
police.
This is typically the description
of rape that surfaces in many statements. Otherwise what vocabulary
does a child of five years
have to describe rape, a trauma that no
human let alone a child should ever experience? Assisting the
complainant with vocabulary
to describe her ordeal is not on its own
evidence of coaching. I find that the complainant was not coached
when she reported the
offence to the police.
The
complainant ‘a very credible and impressive witness’
[35]
Although
the appellant testified through an intermediary her cross-examination
was robust. On several occasions the learned magistrate
had to ask Ms
Sikhakhane to simplify her questions reminding her that the witness
was a child. The complainant withstood the cross-examination
stoically. She answered every question. Her evidence in court was
without contradiction whatsoever and entirely coherent and
consistent.
Counsel for the appellant had to concede that the
complainant testified without contradicting herself or being evasive.
She also
took care to be as precise as possible. For instance she
corrected herself to say that she was staying with her granny not her
mother in 2008. She listened carefully to the questions and
occasionally corrected the versions put to her by the prosecutor.
When
it was put to her that she informed Ms Cele that she was
urinating blood she responded with the correction that had she also
told
Ms Cele that the appellant had ‘put his penis’.
[26]
When it was put to her that the appellant would say that he was
away from home from 6am to 6pm she replied rhetorically:
‘He
was there, if he wasn’t there and he didn’t do this where
would I get this from?
’
[27]
Her explanation that her mother assisted her because her mother could
speak English is evidence given convincingly under cross-examination
showing that the complainant was a thoughtful, truthful witness
giving her own account of her own unfortunate experience.
[36]
The
appellant deliberately denied the complainant an opportunity to
respond to suggestions about her motive for falsely implicating
the
appellant whom she loved. In addition to corroborating the
complainant, Ms Magwaza dispelled any suggestion of an ulterior
motive for falsely implicating the appellant. It is common cause that
Ms Magwaza learnt of the complainant’s problem from
Ms Cele. Ms
Magwaza was not aware of the alleged rape until after ‘Lungile’
had taken the complainant to the private
doctor. Whatever that doctor
had reported to ‘Lungile’ prompted Ms Magwaza to question
the complainant.
[28]
Ms
Magwaza learnt of the cause of the bleeding when she attended with
the complainant at Prince Msheyeni Hospital.
[29]
So the medical evidence of possible abuse came before any questions
about who the perpetrator was. She was never asked whether
she had
scratched herself.
[37]
Furthermore, until the incident Ms Magwaza
had a good relationship with Ms Cele and the appellant. Ms Cele’s
evidence also
bears this out. If there was discord in her marriage it
had nothing to do with the appellant. If Ms Magwaza or the
complainant
falsely implicated the appellant then the real culprit
would be at large with the risk of repeated abuse ever present for
the complainant.
[38]
Some
corroboration also emerged from Mandlenkosi Richard Cele, the father
of the complainant. Testifying for the appellant he stated
that he
learnt of the allegations of abuse when ‘Lungile’ had
taken her to the clinic where it was found that the complainant
had
been raped.
[30]
[39]
The
gist of his evidence was that Ms Magwaza, his wife, had instituted
divorce proceedings against him because he had not supported
the
complainant when she reported that the appellant, his nephew had
raped her.
[31]
It was also his
evidence that they had not lived well together as husband and wife
since 2006. On his own version their marriage
had already broken down
long before the alleged rape. In response to the first question under
cross- examination he stated that
he was still living with Ms
Magwaza.
[32]
He stated
unequivocally that the reason for the divorce was his nephew’s
rape of his child.
[33]
If the
rape triggered the divorce then it supports the prosecution’s
case. But for the rape and Mr Cele’s failure to
support his
child Ms Magwaza would not have instituted divorce proceedings. Ms
Magwaza had to merely establish irretrievable breakdown
of the
marriage which she could have done easily as the couple were living
apart. She did not need to falsify evidence, perjure
herself
and her child, and have a youth of 20 years sent to prison for 15
years just so that she can get divorced. If the suggestion
is that
making a false accusation of rape gave Ms Magwaza an advantage in
relation to custody of the complainant then this angle
was never
canvassed in evidence or argument in any proceedings. For all one
knows Ms Magwaza who was a security guard who worked
shifts preferred
to leave the complainant in the care of the Celes instead of her
mother in Inanda with whom Ms Magwaza did not
live.
[40]
Therefore
the trial court’s finding that the complainant was ‘a
very credible and impressive witness
’
was
not hyperbolic. Furthermore, an appeal court should be slow to
overturn a trial court’s findings on credibility.
[34]
The
appellant ‘not a great witness…evasive’
[41]
For the appellant it was submitted that the
trial court’s finding that the appellant was ‘not such a
great witness’
and that he was ‘quite
evasive at times
’
is a misdirection.
Chili J is also critical of the trial court’s finding for the
further reason that the ‘learned magistrate
advanced no reasons
at all for arriving at a conclusion
’
(sic)
.
Respectfully, I do not share his view that the record does not show
the appellant to be evasive.
[42]
The
failure to give reasons for finding that the appellant was evasive at
times is not necessarily a misdirection if such finding
is borne out
by the record of the proceedings. When cross-examined about the
complainant’s visits to Thembile the appellant
avoided
answering whether the complainant was allowed to visit the shack.
[35]
Yet earlier he had testified that the complainant would come over to
play with other young children. He whittled this down to saying
that
she would only come to drink water and be there for a short while. I
find that the appellant was evasive when he answered
questions about
the complainant and her movements in the vicinity of the alleged
rape.
[43]
For
the rest the appellant answered the questions directly until he was
asked if he knew of any reason why the complainant would
implicate
him. He then proffered that Ms Magwaza had influenced the
complainant.
[36]
[44]
When
the complainant was being cross-examined the court enquired whether
the defence was going to forward a motive as to why the
complainant’s
mother would influence the complainant. The defence declined to do
so.
[37]
Declining to
put one’s version
[38]
is
damaging to one’s case as the only reasonable inference to be
drawn in the absence of an explanation is that one does
not want to
subject one’s version to scrutiny probably because one is not
confident of its merits. In this case the failure
to put the defence
version as to motive was not an inadvertent omission because the
magistrate invited Ms Sikhakhane to do so.
The defence made a clear
and conscious choice not to test the motive with the complainant.
This must count against the appellant.
[45]
When
it was put to him that the medical report confirmed that ‘she
had been sexually abused
’
and
that she was not making up a story he then speculated that according
to his aunt, Ms Cele, Ms Magwaza drank alcohol with men
at her house
and that when the complainant complained about her private parts
being painful Ms Magwaza took no heed.
[39]
This information was never put to Ms Magwaza when she testified.
Finally the appellant had no comment to the prosecution’s
version when it was put to him.
[46]
The appellant’s version that he was
in school when the incident occurred could easily have been
corroborated by evidence from
the school that he was present in
school on 2 August 2008. Teachers and learners would have seen him
there. However, as he was
not cross-examined about his failure to
secure corroboration that was genuinely independent to support him I
do not draw any adverse
inference. An accused is not obliged to
lead the evidence of an alibi. Furthermore he has a right to silence
and against
self-incrimination. However as a matter of common sense
he could so easily have spared himself the risk and expense of a
prosecution
had he simply informed the police when he was arrested
that there were independent people who would confirm that he was at
school
on the day in question. He could have saved himself the risks
and trauma of a trial.
[47]
Although it is not hard to maintain a bare
denial defence in a sexual offence in which the complainant is a
single witness, there
are serious weaknesses in the defence case.
Most damaging to the defence are the flaws in the evidence of Ms
Cele.
Denial
of First Report
[48]
Although the appellant relies on the
evidence of Ms Cele to deny that the complainant reported to her
first, he does not analyse
her evidence. Nor was it submitted for him
that she was a credible witness. Respectfully I disagree with Chili
J’s analysis
of Ms Cele’s evidence. A credibility
analysis is needed to resolve the conflict as to whether the
complainant reported first
to Ms Cele.
[49]
Nokuthula
Cele began her testimony by mentioning that she had observed in April
of 2008 when the complainant came to live with her
in order to attend
school that she had glands on her inner thigh close to her private
part.
[40]
I have already
discussed the improbability of glands in the inner thighs causing
vaginal injuries and the lack of any medical evidence
about the
glands. On that occasion Ms Cele did not take the complainant to the
doctor because Mandlenkosi Cele ‘did not arrive’.
[41]
[50]
She
denied that the complainant made the first report of sexual abuse to
her.
[42]
She also denied that
the complainant told her that she was urinating blood. Significantly,
this contradicted her instructions to
Ms Sikhakhane who had put to
the complainant that Ms Cele would say that the complainant did
report that she was urinating blood.
[43]
Ms Cele persisted that she got such a report from her grandson.
[51]
She
alleged that she took the complainant to the clinic on the Friday and
was told to return on Monday the following week. She did
not return
as the complainant had already left. Subsequently she added that she
did not take the complainant back to the doctor
because Ms Magwaza
had already taken her to the clinic.
[44]
[52]
Under
cross- examination she testified about seeing a discharge in the
complainant’s panty. She did not mention this in her
evidence
in chief allegedly because she had forgotten and because she was
scared.
[45]
She did not do
anything about the discharge as she awaited a date to visit the
doctor. Whether this was in April or August 2008
is unclear.
[53]
Ms
Cele contradicted other witnesses for the defence. She testified that
the complainant had not said that she experienced pain.
In
contradiction, the appellant testified that she had informed him that
the complainant was experiencing pain in her private part.
[46]
[54]
She denied reporting to Ms Magwaza that the
complainant had bilharzia. Yet both Ms Magwaza and Mr Cele testified
that Ms Cele had
informed them that the complainant had bilharzia.
[55]
Ms
Cele was evasive. The learned magistrate warned Ms Cele on several
occasions to focus on the questions when answering them.
[47]
The prosecutor had to ask Ms Cele four times if she had asked the
complainant what caused her to bleed when she urinated. Ms Cele
gave
four different contradictory answers.
[48]
[56]
Much of Ms Cele’s testimony that was
put to the complainant was denied. Presumably on instructions, Ms
Sikhakhane put questions
to the complainant about Ms Cele taking her
to Kwamakhuta Clinic and her staying with her mother when she started
Grade 0. The
complainant denied that Ms Cele took her to Kwamakhuta
Clinic and that she ever went to Grade 0.
[57]
Some
of what Ms Cele testified about was not put to the prosecution’s
witnesses. For instance it was not put to them that
the complainant
had an appointment in April 2008 allegedly for a vaginal discharge
and that appointment had not been kept because
Mr Cele had not taken
Ms Cele and the complainant to the clinic. A vital aspect of the
appellant’s case was Ms Cele’s
version that the
complainant had a virginal discharge before the alleged rape. It was
put to the complainant that according to
Ms Cele the complainant had
reported to Ms Cele when the complainant arrived to stay with Ms Cele
that she had a discharge. The
complainant replied that she had no
discharge until she bled with her urine, which was after the
rape.
[49]
The question was
repeated to Ms Magwaza who responded that she did not know that
because the complainant resided with Ms Cele.
Under cross-examination
Ms Magwaza corroborated the complainant but Ms Cele was a single
witness on this issue. Notwithstanding
its importance, Ms Cele
omitted to mention the discharge during her evidence in chief.
[58]
Ms
Cele testified that she took the complainant to the clinic
immediately because she was concerned that she was bleeding. The
medical staff allegedly told her after examining the complainant that
‘they could not see anything.’ This was also not
put to
the prosecution witnesses.
[50]
She seems to suggest that she took the complainant to the clinic on
the Friday before the Monday when Ms Magwaza took the complainant
to
Prince Mshiyeni Hospital. In contrast it was Mr Cele’s evidence
that he fetched the complainant as he usually did at Ms
Cele’s
request to take her for medical attention as the latter was concerned
about the complainant having bilharzia. If she
did have the
complainant examined at all it is strange that the medical staff did
not make the same observations of sexual abuse
as the doctor at
Prince Msheyeni Hospital had done. If it is indeed true that the
clinic staff had not observed any abuse that
would have been vital
evidence for the defence case that was omitted.
[59]
Ms Cele’s statement, which forms part
of the record was not canvassed either during the trial or the
appeal. It conflicts
with her evidence in several material respects
as this summary shows: She states that in August she noticed that the
complainant
was urinating blood. She questioned the complainant who
allegedly informed her that she had no pains in her private parts. Ms
Cele
took her to the clinic in Clairwood where she received
medication to use for two weeks from 5 August 2008. Before the two
weeks
lapsed Ms Magwaza took the complainant away. On 11 April 2008
the appellant was diagnosed with ‘“glands” just
below the bladder line close to her private parts.’ Ms Cele’s
statement attested to on 30 December 2008 has fatal,
material
inconsistencies with her evidence in court, far more so than the
inconsistencies in the complainant’s statement.
It is
unsurprising therefore that the defence did not rely on Ms Cele’s
evidence but perplexing that Chili J is uncritical
of her.
[60]
As
for her demeanour, shortly into cross-examination Ms Cele started
sobbing purportedly because she was ‘coming to court
for
something (she) didn’t know.’
[51]
As the trial court correctly pointed out that was ‘nothing to
cry about’. Nevertheless the court had to adjourn
so that Ms
Cele could compose herself.
[61]
The trial court correctly rejected Ms
Cele’s evidence. Its finding that Ms Cele was trying to protect
the appellant is consistent
with the analysis of Ms Cele’s
testimony as being false and unreliable. On the one hand the
court has the evidence
of the complainant who, even counsel for the
defence concedes, was not evasive and did not contradict herself at
all during her
testimony, all of which are indicators of a truthful
witness. On the other hand Ms Cele contradicted herself and other
witnesses
for the defence. She was evasive and visibly uncomfortable
about testifying, all of which are tried and tested indicators of an
untruthful, unreliable witness. I find that the
complainant did report first to Ms Cele. If her report had not
implicated
the appellant Ms Cele would have had no reason to lie. It
follows too that if she did report first to Ms Cele then the
suggested
motive that Ms Magwaza coached or influenced her falls
away. If the appellant did little to damage his bare denial
defence,
then Ms Cele sealed his fate. A finding of reliability and
credibility favourable to the complainant and unfavourable to the
defence
is inevitable.
Twice
to Police Station
[62]
The appellant seeks to draw an adverse
inference from the fact that the complainant reported the rape only
on the second occasion.
The explanation of the prosecution witnesses
as to why the complainant was unable to report on the first occasion
is discussed
above. However Chili J thinks that the complainant
made two statements: one on 19 August 2008 and the second statement
in
2011 and that it is the latter statement that was handed into
court.
[63]
The
complainant testified that on her first visit to the police she
‘
just
cried, (she) didn’t tell’. That visit occurred on
the same day as the visit to
Prince
Mshiyeni
Hospital
for the J88.
[52]
The second
statement she made was to an African male.
[53]
The third contact with the police was with a white officer who came
to the complainant’s school.
[64]
In
cross-examination Ms Magwaza was asked to confirm ‘that that is
the statement that was made by your daughter the first
time she made
a statement on 19 August 2008.’
[54]
The statement that Ms Magwaza was being asked to confirm was the same
one that Ms Sikhakane had read into the record previously
for the
complainant and again for Ms Magwaza.
[55]
[65]
Contrary to Chili J’s finding that
the complainant made a statement to the police in 2011, the year in
which the trial commenced,
I find no evidence on the record that the
complainant made a statement to the white police officer who came to
her school in 2011.
Neither does the defence make such a submission.
It follows that Chili J’s view that the trial court should have
explored
the possibility that the complainant was coached into making
allegations in 2011 has no factual foundation and is not contended
for by the defence.
[66]
Chili J is clearly wrong in finding that
the case against the appellant was only registered in 2011. He relies
on the case number
of the regional court summons for this conclusion.
The police docket number is CAS41/08/2008 indicating that the crime
was reported
in August 2008. This appears on the statement of Ms
Cele.
The
Rash
[67]
It was submitted for the appellant that Ms
Magwaza had testified that the complainant had a rash when there was
no medical evidence
to this effect. For a layperson erythema, which
presents as a redness, could appear to be a rash. In any event she
was not challenged
on this issue.
Identification
of the appellant
[68]
The
point is taken for the appellant that the complainant did not
identify the appellant in court. This would have been a material
defect if the complainant did not know her alleged assailant. The
complainant testified that her cousin Thokozani raped her. Ms
Magwaza
identified the appellant as Thokozani, ‘the nephew of [her]
child’s father
’
.
[56]
The appellant
admitted in terms of
s 220
of the CPA that he knew the complainant,
mentioning her by name.
[57]
It was never put in issue that the person in court was not Thokozani
the complainant’s cousin. There is no merit
in this
ground of appeal.
Conclusion
[69]
Evidence of credibility cannot be
approached in a piecemeal manner. All the evidence for and against
each party has to be viewed
holistically. The appellant himself had
an easy row to hoe by raising a bare denial defence. In contrast the
complainant had a
traumatic experience to narrate. It was not
disputed that she had been penetrated. Speculation that her injuries
were self inflicted
or caused by Ms Magwaza’s male drinking
friends is not evidence. Speculation by the majority about the
possibility of Ms
Magwaza misinforming Dr Naidoo that the complainant
had been sexually abused is also not evidence. In the realm of
possibilities
anything is possible. To allow speculation to trump
evidence would amount to a serious misdirection. It was common cause
that the
complainant had been penetrated and had sustained vaginal
injuries. It was also common cause that she bled when she urinated.
There
is no explanation for how she came by those injuries and why
she bled other than the evidence of the complainant, corroborated by
the medical report, which the defence admitted. She knew the
appellant well; he was her cousin. Her identification of the
appellant
was not in issue. Another person was not identified as her
rapist. Is a child of five years capable of carrying out a
conspiracy
of such magnitude fashioned by her mother without once
contradicting herself during her testimony? I think not.
[70]
Accordingly I find that the conviction of
the appellant is well founded and the appeal should be dismissed.
D.
Pillay J
APPEARANCES
Counsel
for the Appellant : Advocate C.J Snyman S.C
Counsel
for the Respondent : Advocate Pillay
[1]
Hoffmann
and Zeffert
The
South African Law of Evidence
4
th
edition at 574, 581.
[2]
Hoffmann
and
Zeffert
at 581.
[3]
S
v Sauls
and
Others
1981 (3) SA 172
(A) at 180E-G.
[4]
Hoffmann
and Zeffert at 579.
[5]
S
v B
1976 (2) SA 54
(C) at 59A;
S
v MG
2010 (2) SACR 66
(ECG) at 75E-I.
[6]
Hoffmann
and
Zeffert
at 584.
[7]
S
v Hanekom
2011
(1) SACR 430 (WCC).
[8]
S
v M
1980
(1) SA 586
(B);
S
v MG
at
73B-D.
[9]
Hoffmann
and
Zeffert
at 580.
[10]
Hoffmann
and
Zeffert
at 584-585.
[11]
Page
62 lines 17-20 of the record.
[12]
Page
42 line 12-13 of the record.
[13]
Page
20 line 3 of the record.
[14]
Page
10 line 8 of the record.
[15]
Page
24 line 12-15 of the record.
[16]
Page
63 line 20 of the record.
[17]
Page
12 of the record.
[18]
Page
12 line 24-25 of the record.
[19]
Page
13 line 3-4.
[20]
Page
15 line 18 of the record.
[21]
Page
15 line 11-12 of the record.
[22]
Page
19 line 3 of the record.
[23]
Page
13 line 3-4 of the record.
[24]
See
entry made by the doctor in para 6 under “mental health and
emotions” at page 70 of the record.
[25]
Record
page 19 lines 11.
[26]
Page
19 lines 15-16 of the record.
[27]
Page
18 lines 14-15 of the record.
[28]
Page
25 lines 21-24 of the record.
[29]
Page
27 lines 15-17 of the record.
[30]
Page
55 lines 15-20 of the record.
[31]
Page
57 line 1-10 of the record.
[32]
Page
57 line 18-20 of the record..
[33]
Page
57 line 9 of the record
[34]
R
v
Dhlumayo and Another
1948
(2) SA 677
(A) at 687.
[35]
Page
37 line 17 to page 38 line 7 of the record.
[36]
Page
40 line 10-15 of the record.
[37]
Page
18 line 18-21 of the record.
[38]
S
v Scott-Crossley
2008 (1) SACR 223
(SCA) para 26.
[39]
Page
40 line 15-24 of the record.
[40]
Page
42 line 1 – page 43 line 15.
[41]
Page
43 line 13-15.
[42]
Page
43 line 17-18.
[43]
Page
19 line 12 –15.
[44]
Page
48 line 8-10
[45]
Page
51 line 25- page 52 line 3 of the record
[46]
Page
40 lines 20-24; page 49 lines 25- page 50 line 2 of the record
[47]
Page
46 line 13
[48]
Page
50 lines 2-15 of the record.
[49]
Page
21 lines 12-14 of the record.
[50]
Page
50 lines 20-24 of the record.
[51]
Page
47 lines 8-9.
[52]
Page
10 lines 25 – Page 11 line 1 of the record; Page 28 lines
13-18 of the record.
[53]
Page
11 line 13 of the record.
[54]
Page
29 lines 22-24 of the record.
[55]
Page
30 lines 15-23 of the record.
[56]
Page
26 lines 10-12; 22-23 of the record.
[57]
Page
5 lines 19-23 of the record.