About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2016
>>
[2016] ZAKZPHC 12
|
|
Chili v S (AR754/14) [2016] ZAKZPHC 12; [2017] 3 All SA 358 (KZP) (12 February 2016)
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
KWAZULU-NATAL
DIVISION,
PIETERMARITZBURG
CASE NO:
AR754/14
DATE: 12
FEBRUARY 2016
In the
matter between:
SIBUSISO
RICHARD
CHILI
..........................................................................................
APPELLANT
V
THE
STATE
....................................................................................................................
RESPONDENT
JUDGMENT
Date of
hearing: 27 January 2016
Date of
judgment: 12 February 2016
D. Pillay J
(Koen J et Van Zyl J concurring)
Background
and evidence
[1]
With the leave of the Supreme Court of
Appeal this appeal is against both conviction and sentence. The
appellant was charged and
convicted of rape committed between 2000
and 2003 upon a child of eleven years. He was sentenced to life
imprisonment.
[2]
The complainant aged fourteen testified in
chief that her stepfather raped her one morning six years earlier in
2000. She was in
grade one at the time. Against her will he removed
her clothing and penetrated her. He threatened to hit her if she
reported him.
Hence she did not report him. The last occasion that
the appellant raped her was on a night in 2003 when she was in
standard two.
Her mother was asleep in another room. When the
complainant tried to scream he stuffed her mouth with a cloth.
On both occasions
the complainant felt pain.
[3]
The morning following the last rape [V……]
a woman who lived in the neighbourhood questioned the complainant
indicating
that she was already aware that the appellant was abusing
the complainant. The complainant reported that the appellant had
raped
her. This was her first report to anyone that she had been
raped. [V…...] undertook to report the matter to the
complainant’s
mother.
[4]
After the last rape the complainant escaped
to her father’s house. There her stepmother noticed that the
complainant was walking
awkwardly, that she was isolating herself
from other children and that her panties were different from her
sister’s. She
had her medically examined. Testifying three
years later the appellant could not recall how long after the last
incident she had
reported to her stepmother. After school closed she
had collected her report and ran off to her stepmother because after
the first
rape she had reported to her mother who chose to ignore
her. Later she testified that she reported to her mother that she had
been
raped many times.
[5]
The doctor noticed white stuff emerging
from her. She could not recall how long after her report to her
stepmother she was taken
for a medical examination. Nor could she
recall the other incidents when the appellant had raped her, but they
were more than five
times.
[6]
She did not do well at school because she
was ‘heartbroken’ thinking about being raped. Her mother
did not know that
she was not attending school and that she was alone
at home while her mother and the appellant would be at work.
[7]
Under cross-examination she testified that
the appellant raped her in 2002 when her mother had gone to the rural
area. She could
not recall what the appellant did after he had raped
her. She noticed a ‘whitish thing’ when she went to
bathe. She
reported to her mother after the first incident. The
appellant was in another room at the time.
[8]
By 2003 there was a bed in the kitchen for
the complainant and her brother but on the night the appellant raped
her she was asleep
on a floor bed. She acknowledged that the
appellant’s sister [S……..] occupied the new bed.
She had forgotten
to mention this in chief. Before he gagged her with
the cloth she made a little sound. She did not see but felt that he
was dressed.
He lowered his pants to his knees when he raped her.
After this rape she went to sleep with her brother. The next morning
she saw
‘the whitish stuff’ on her vagina.
[9]
She did not know how [V…..] knew
that she had been raped before the complainant could report to her.
She started visiting
her father and stepmother in 2004 but later said
that she did not recall. She conceded that she had started going to
them since
she was six years in 1998. She changed her evidence that
she gave the previous day to say that her stepmother had also
examined
her.
[10]
She could not recall anything about the
incidents between the first and the last rape other than that they
occurred in the kitchen
either on the new bed or on the floor with no
one else but her younger brother present. She conceded that her
mother had refused
to let her go to her father until the appellant
persuaded her that she should allow the complainant to do so. Since
about September
or October she stayed mostly with her father. In
October or November 2003 her mother refused to allow her father to
take her to
visit his family. A month later she went with the police
to arrest the appellant.
[11]
[B……..] [N…….]
[N……], the complainant’s stepmother testified
that the complainant
came to live with them during the final
examinations. She noticed the complainant walking awkwardly and
isolating herself in the
bedroom away from other children who were
watching television. On hearing that the complainant felt pain in her
vagina Ms [N……]
examined her without touching her and
found a white substance. The complainant said that the appellant had
slept with her the day
before she had arrived at her stepfather’s
place. She was not in attendance when the doctor examined her but he
did tell
her later that the complainant had ‘slept with a male
person’.
[12]
In 2003 she started noticing that the
complainant walked awkwardly and that she had marks on her body,
which suggested that the
complainant had been beaten. The complainant
explained to her that her mother and the appellant beat her when she
did not do the
dishes. This caused Ms [N…….] to become
suspicious. Since 2003 the complainant was not doing well at school.
She
was forgetful. She developed the problem of bedwetting after she
came to live with her father in 2003. Before 2003 she was not a
shy
child.
[13]
Under cross-examination she testified that
the complainant started visiting them from 1994 when she was six
years. (In 1994 the
complainant was two years having been born on 2
January 1992.) Since 2000 the complainant stayed with her stepfather
overnight
or sometimes as long as a week. In 2002 she had noticed
that the complainant was no longer jovial and her underwear was no
longer
bright. She persisted that the complainant had told her that
her mother and the appellant had hit her when she did not wash
dishes.
[14]
She disputed that the appellant and the
complainant’s mother were agreeable to the complainant visiting
her father. The complainant
had remained with her ever since she had
reported the rape to her. The complainant informed her that whenever
she reported it to
her mother the latter ignored her. Her mother had
not attempted to speak to Ms [N…….] nor had the
complainant returned
to see her mother.
[15]
The appellant testified that he knew the
complainant since she was three years. He was arrested on 8 December
2003. When the police
arrived at his home they informed him that the
complainant had said that she was lost. They took the appellant
purportedly to show
them where the mother was at work. Instead they
drove him to the police station where he learnt that the complainant
had reported
that he had raped her.
[16]
The appellant surmised that the complainant
accused him falsely because her father wanted her to live with him
and her mother was
refusing to allow her to do so because a relative
of the father had once raped the complainant. He disputed the
complainant’s
evidence that the mother was working in 2000.
According to him she started working in 2003. He denied that the
complainant stayed
alone with him. She had been allowed to stay with
her father eventually but returned occasionally to visit her mother.
[17]
Under cross-examination he testified that
in 2000 he had persuaded the complainant’s mother to let her
visit her father. He
had a good relationship with the complainant. It
was he who put her into grade one. Her mother had not told him but he
had assumed
that she did not want the complainant to stay with her
father because a member of his family had raped her. What the mother
did
say was that the father had abandoned her with the complainant
and if he needed to see the complainant he had to pay damages first.
Later he added that the father wanted to take the complainant to the
rural areas. Her mother did not know where that was. He learnt
of the
father’s wish to have her from the complainant herself and
thereafter from her half siblings on her father’s
side, who
also wanted her to stay with them. Before she was allowed to visit
her father she appeared to be a child without a father.
He
wanted the complainant to visit her father because it was not the
father who had raped her previously and the father had punished
the
person who did rape her; moreover her father needed her.
[18]
He did not disclose the rape by another
person to his attorney because he was confused. Hence it was not put
to the complainant.
He remembered that rape when he learnt that
morning that the doctor had confirmed that the complainant had been
abused.
[19]
The complainant was away from him staying
with her father for three months before he was arrested. The
complainant would not have
known about his attempts to persuade her
mother to allow her to visit her father. She had reported to them
that she was going with
her father to the rural areas. Her mother had
refused permission. The complainant stayed the night and went to her
father’s
house the next day. She returned three months later in
December 2003 with the police.
[20]
He assumed that it was a fabrication
because the father wanted the complainant. She was allowed to visit
but not to go with him
to the rural areas. He disputed the
complainant’s evidence that she was left alone with him when
her mother went to the rural
areas because her mother always took
her.
[21]
The defence reopened its case to call the
complainant’s mother to testify. [G…..] [Z…..]
[Z…..] denied
that the complainant ever brought to her
attention that the appellant had raped her between 2000 and 2003.
Neither did she notice
anything wrong with the complainant over this
period. She testified that she was not employed in 2000 but started
working in April
2003.
[22]
She knew [V……] as her
neighbour. [V…..] had not mentioned to her that the appellant
or anyone else had raped
the complainant. She denied ever observing
the complainant walking awkwardly or being withdrawn. Whenever the
complainant stayed
away from school Ms [Z…..] was aware of it.
The complainant had a problem of bedwetting ever since she was born.
Other than
that Ms [Z……] did not notice anything in her
underwear.
[23]
She did object to the complainant staying
with her father at the beginning because he did not support the
complainant financially
and had insisted that she bring her to stay
with him. Ms [Z…..] decided to raise the complainant on her
own. Another reason
for keeping the child with her was that when the
complainant was five years she was raped and the father merely gave
the rapist
a hiding. Ms [Z……] was not happy that he did
not want to report the matter to the police. The complainant did not
want to live with her father but was happy to visit him. She allowed
the complainant to visit her father after her siblings from
her
father’s side sought permission from Ms [Z….] to allow
her to visit them. She felt sorry for the children after
they
repeatedly asked her to allow the complainant to stay with them.
[24]
She went to the rural area in December
taking her children with her. The complainant had informed her that
her father wanted to
ask Ms [Z…..] permission to take the
complainant to his rural area. Ms [Z…..] waited but no such
request came. She
denied hitting the complainant if she did not do
her chores. She did not notice any marks on the complainant’s
body.
[25]
The complainant got along well with the
appellant; she would run to him when he returned home. She surmised
that the complainant’s
father and her stepmother had influenced
her to falsely implicate the appellant because they wanted to take
her away.
[26]
After a short interval Ms [Z…..]
returned to be cross-examined. She learnt from Ms [N…….]
who, it emerges for
the first time, was also the appellant’s
maternal aunt, that the appellant had been arrested the previous day.
[27]
She started living with the appellant in
1998. The complainant was eight years old. The complainant was six
years when she started
a relationship with the appellant. It was
pointed out to her that the complainant would have been six years in
1998 having been
born in 1992. She corrected herself to say that she
met the accused in 1997 and they started living together in 1998. She
surmised
that the appellant was confused when he testified that the
complainant was three years when they started living together. The
complainant
was five years when she was raped.
[28]
She last spoke to the complainant’s
father when the complainant was eleven months. The next occasion she
spoke to him was
when the complainant was five years old and had been
raped. She had to contact him because the child was in danger and
because
she wanted his advice about whether to report the matter and
go to court. When she decided to break communication with the
complainant’s
father she was casually employed to wash laundry.
She worked carrying her child on her back.
[29]
The boy of eleven years who had raped the
complainant was from the neighbourhood. When the complainant’s
father was assaulting
him that is when the boy’s mother
summoned the police and the dog unit arrived. Even though she was
unhappy with the father’s
advice not to pursue the complaint
she did nothing further about it because he had threatened to kill
her if she did anything against
his will. He threatened to shoot her
when she applied for maintenance from him and when she insisted that
he open a case against
the rapist.
[30]
She did not take the child to the doctor
because she did not have money and the complainant’s father
refused to give her any.
She did take the child to the clinic a week
later but the clinic did nothing for the complainant. She could not
take the complainant
to a clinic immediately because she had to work
in order to feed her.
[31]
The complainant was in her second year of
school at eight years when Ms [Z…..] allowed her to visit her
father. The complainant’s
siblings had approached her on three
occasions to ask permission for the complainant to visit them.
Whenever the complainant
stayed over at her father’s Ms [Z…..]
would look for her at school the following day to check why she had
not come
home. It was only in October that the complainant stayed
away over many days with her father. About that time she also
requested
permission to go with her father to the rural area. Ms
[Z……] did not respond to the request; hence the
complainant
would not have known whether she had permission. Ms
[Z…..] was adamant that she did not respond to the
complainant’s
request but waited for her father to approach
her. If the appellant had said that she had refused the complainant
permission that
would not be true.
[32]
After the appellant was arrested he was
released on bail and returned to live with her. In re-examination she
testified that she
tried to see the complainant but was not allowed
to do so. The social worker told her that she would have to wait
until the case
was over. The complainant never disclosed to her that
the appellant had assaulted her. As far as she knew they were close.
Analysis
[33]
In this case as in most other sexual
offence prosecutions it is difficult to establish where the truth
lies. Compounding the difficulty
is the fact that the complainant was
a child of eleven years when the last incident allegedly occurred and
fourteen years when
she was testifying. The unexplained delay in
prosecuting the complaint assisted neither the complainant nor any of
the other witnesses.
In these circumstances the watchwords for
analysing the evidence are: caution, common sense and meticulous
application of the rules
of evidence to assess credibility.
[34]
For some perspective of the time frame the
following evidence can be relied on: Ms [N…….]
testified that the complainant
arrived to stay with them during the
final examinations. The complainant testified that she collected her
report from school and
went to live with her father. The police CAS
number on the J88 records the date of reporting as November 2003.
The J88 was
completed on 24 November 2003, after the complainant made
a statement to the police. Whether this was on her first or second
visit
to the hospital is not clear. The alleged last rape would have
occurred around November 2003. Since then she had been living
permanently
with her father. She must have been living with her
father from about November 2003.
[35]
The complainant’s and her mother’s
evidence under cross-examination and the appellant’s evidence
in chief was
that she gone to live with her father in September or
October 2003 about three months before his arrest on 8 December 2003.
In
contrast Ms [N……] denied that the complainant came
to live with them in September or October 2003. If September or
October 2003 is correct then the delay between October and reporting
to the police in November 2003 is unexplained. The appellant
was not
reliable as far as assessing time went. For instance, he testified
that he came to live with Ms [Z……] and
the complainant
in 1998 when the latter was three years. The complainant was
six years by then. It is possible that the complainant
and her mother
are also mistaken about the September/October dates. Linking her
arrival to the examinations and collecting her
report puts the date
closer to November 2003.
[36]
When did the appellant allegedly rape the
complainant? The complainant testified that it began in 2000 when she
was in grade one.
Her mother was at work. The last rape occurred one
night in 2003 when her mother was asleep in another room. She
corrected her
cross-examiner to say that the appellant raped her when
her mother was away in the rural areas in 2002, not 2000. So she did
recall
three occasions when she was raped even though she recalled
little else about that occasion and the five or more other
occasions.
Regrettably why she did not mention the 2002
incident in chief was not canvassed further. It is possible she
forgot to do
so; equally she might have been constructing her version
as she went along.
[37]
Did Ms [N……] corroborate the
complainant? Ms [N…….] gave a straight-forward account
of the report the
complainant made to her. She did not elaborate on
the complainant’s report that the appellant had ‘slept
with her’.
She was not in attendance when the complainant gave
her statement to the police. Nor was she present during the
complainant’s
medical examination. When the court put the
defence version to her she responded quite simply without defending
the complainant
that she had to ‘act reasonably’ on the
complainant’s report. The complainant was corroborated to
some
extent by Ms [N…..] who had observed that the complainant
had walked awkwardly, was withdrawn and was wetting the bed, all
of
which are typical symptoms of an abused or disturbed person. However
she did contradict the complainant materially.
[38]
In chief Ms [N…….] testified
that she noticed the complainant’s odd behaviour in 2003. Under
cross-examination
she changed this to 2002. The complainant’s
behaviour became obvious in 2003. If the complainant had been raped
from 2000
it should have been obvious to Ms [N……..] as
the complainant testified she was in pain after each rape. Her
explanation
that she had not noticed anything odd about the
complainant before 2002 possibly because she was not paying
attention, has to be
weighed cumulatively with all the evidence.
[39]
In chief Ms [N…….] testified
that in 2002 when she saw marks on the complainant’s body the
latter had told her
that her mother and the appellant had hit her
when she did not wash dishes. Yet the complainant had stated when she
was examined
to determine her competence that they never punished
(hit) her but only scolded her. Her father brushed away the
report as
being the mother’s way of disciplining the
complainant.
[40]
Under cross-examination she denied that the
appellant had persuaded the mother to allow the complainant to visit
her father because
the complainant had informed her that both of them
were opposed to her visiting her father. Furthermore, the
mother and the
appellant had confirmed this one day when they met at
the supermarket. This evidence conflicts with the appellant’s
concession
that the appellant did persuade her mother to allow her to
visit her father.
[41]
Did the complainant report to her mother
about being raped by the appellant? In chief she testified that after
the first rape she
did not report it to anyone because the appellant
threatened to hit her. After the last rape [V……] was
the first
person to whom she had reported being raped. Later she
testified that she ran off to her father because she had reported to
her
mother that the appellant had raped her many times
but
her mother had ignored her. In response to questions from the court
the complainant replied that her mother had said that she
was not
truthful about her complaint against her stepfather.
[42]
In response to questions from the court Ms
[N……] stated that the complainant had informed her that
she did not report
the matter because the appellant would give her R1
and tell her to remain quiet; sometimes he threatened her. It
was never
the complainant’s testimony that the appellant
silenced her with R1. Ms [N…..] also testified that the
complainant
had reported to her that her mother would remain quiet
whenever she reported the appellant to her. The complainant’s
evidence
about reporting to her mother varies. Her mother denied ever
receiving such a report from the complainant. Her testimony that
[V……]
already knew before she could report the alleged
rape to her seems genuine but the court has no explanation as to why
[V……]
did not testify. The first report is material in
sexual offence cases. Given the contradictions and variations in the
complainant’s
evidence the court has no reliable evidence that
she reported to her mother and what the latter’s reaction was.
[43]
Ms [N…..] had testified that on
questioning the complainant about her panties in 2002 the latter
dismissed the subject with
the explanation that they were dirty. This
would have been an opportunity for the complainant to report to Ms
[N……]
with whom she had a good relationship and who
cared for her. There is no explanation as to shy she did not report
to Ms [N…….]
sooner than 2003.
[44]
The appellant presented a picture of a
caring stepfather who maturely encouraged the mother to allow the
father access to the complainant.
He admitted the contents of the
medical report to be ‘true and correct’. The
regional magistrate should not have
drawn inferences from the
measurement of the hymen being enlarged to 24 mm by 18 mm as being
caused by the appellant and not the
youth of 11 years without better
facts and medical evidence. The high water mark of the medical
report is that the complainant
had been penetrated. The question
remained: By whom?
[45]
Damaging to the appellant’s case was
his failure to recall the rape of the complainant by a youth in time
to put that to the
complainant when she testified. Considering that
he assumed that to be the reason for the mother refusing to send the
complainant
to her father, it is hard to accept that he forgot about
that rape. His explanation for the failure was that he had forgotten
about
it until the medical report, which had been handed in at the
end of the state’s case and just before he testified, reminded
him that day of that rape. When his representative received the J88
is not evident from the record. If she had received it a while
before
he testified the prosecution would have pressed this point. His
evidence that he had informed his previous attorney about
that rape
could also not be gainsaid. How much weight should be attached to his
omission must be assessed cumulatively.
[46]
Ms [Z……] corroborated the
appellant in the material respect that the complainant had previously
been raped and she
had initially refused to allow the complainant to
visit her father. Differences in their evidence as to whether
the youth
who raped the complainant was a relative of the father or a
neighbour can be explained away by the appellant’s mild
interest
in the issue as it had occurred before he came to live with
them. In the nature of narratives some details are sometimes lost in
the retelling. I might have found against the appellant on this point
but for Ms [Z……’s] particular reference
to the
dog squad arriving when the father was beating the youth. Ms [Z…..’s]
account of the previous rape adds weight
to the appellant’s
version.
[47]
Ms [Z…..s] evidence could not be
faulted. Whenever the complainant stayed over with her father Ms
[Z……] would
check on her at school the following day.
She did so when the complainant left to live permanently with her
father. Damaging to
the prosecution’s case was Ms [Z……’s]
denial that the complainant ever reported being raped by the
appellant
to her.
[48]
Did the appellant rape the complainant?
During the last rape in 2003 her evidence was that the appellant was
dressed, that he lowered
his pants to his knees and that he gagged
her. Although the presence of his sister [S……] asleep
in the same room
suggests that the appellant was unlikely to commit
rape, rape has occurred in families confined to sleeping in a single
room. [S……’s]
presence would explain the gag and
his being clothed. However, towards the end of her cross-examination
the appellant responded
that only [F…….] was asleep
with her in the kitchen. She must have forgotten that she had
confirmed under cross-examination
earlier the appellant’s
version that [S…….] slept on the bed in the kitchen
with her. Her evidence in cross-examination
that she slipped into her
brother’s bed after the last rape seems to have been a genuine
search for comfort or refuge.
[49]
The complainant’s testimony at the
outset that in grade one when the rapes started her siblings would
ask her why she stayed
away from school; this suggests that she
stayed away from school many times considering she was allegedly
raped more than five
times. However, at the end of her examination in
chief she testified that she stayed away from school only one or two
times. As
she went to Ms [N……] after school it is
possible that she did not stay away from school after every incident.
What
the significance of staying away from school was, was not fully
explored and I can draw no inference from this evidence.
[50]
Some flaws in the complainant’s
evidence were explained away by her youthfulness and the lengthy
passage of time. However,
the material contradictions discussed above
weigh against her.
[51]
The complainant and possibly Ms [N…….]
had a motive to falsely implicate the appellant. The complainant
wanted to
stay with Ms [N……] and her father and they
wanted her to be with them. Equally the appellant and Ms [Z……]
would do their best to spare the appellant of a life sentence. Ms
[Z……] would lose her breadwinner and partner if
the
appellant was convicted. With the facts balanced as they are applying
the proof beyond a reasonable doubt test must result
in a finding in
favour of the appellant.
[52]
Another crucial factor that tips the
balance in favour of the appellant is the prosecution’s failure
to call a material witness.
Neither the trial court that convicted
the accused nor the high court that sentenced him and refused leave
to appeal, considered
this omission. The material witness was [V…….]
the neighbour who the complainant testified already knew about her
being raped. There is no explanation as to why this witness was not
called. If she was not available to testify that should have
been
placed on record. If she was not willing to testify she should have
been subpoenaed.
[53]
The quality of the services rendered might
also have been compromised in other ways. The cross-examination by
both representatives
could have been more robust and thorough. The
representative for the appellant asked to cross-examine while she was
seated might
not been performing optimally. There is insufficient
information as to how it came about that she was not aware when the
complainant
testified that the complainant had been raped by the
youth when the appellant had allegedly informed his erstwhile
attorney about
this. The failure to put a version is usually
detrimental to a party. In the circumstances of this case I cannot
safely draw an
adverse inference against the appellant. Furthermore,
the prosecutor had to correct the interpreter occasionally. Whether
Ms [N…..’s]
evidence that she did not know the appellant
or Ms [Z…….’s] evidence that she was the
appellant’s maternal
aunt is a conflict cannot be resolved
because neither party questioned this issue further. It might
also be a misinterpretation
of the evidence.
[54]
The assessment of Ms [N……..]
and Ms [Z…….] is against the backdrop of no information
of their education,
their ages, their intellect and any other factors
that go to assessing their sophistication as witnesses. There
were no social
worker’s or psychologist’s reports to
support or refute the complainant’s evidence.
[55]
Litigation about a deep-seated social
scourge occurs against this backdrop. Although the constitutional
rights of the complainant
and the appellant have to determined
through litigation, solving the causes of sexual offences is
ill-suited to the forms and functions
of litigation. These
cases strain the rules of evidence beyond their traditional limits.
Constantly the court has to resist
speculating about what might
actually have happened. Applying the tried and tested
techniques of assessing credibility by
scouring the evidence for
consistency and corroboration, and the standard of proof beyond a
reasonable doubt are all that is available
to us to resolve the
dispute. Much more is needed to solve the problem.
[56]
In the circumstances I find that the state
has failed to prove the guilt of the appellant beyond a reasonable
doubt. The defence
raised two procedural and preliminary issues. In
the light of my finding above it is not necessary to deal with them.
I do so nevertheless
for the sake of completeness.
[57]
The first issue is that the regional
magistrate misdirected herself by calling on the prosecutor to
question the complainant to
test her competency as a witness. It
submitted that the substantive flaw in this approach was that the
prosecutor was leading her
own witness whom she might have
precognised earlier. Furthermore the defence had not been allowed an
opportunity to cross-examine
the complainant.
[58]
In this case the prosecutor asked questions
that the regional magistrate might herself have asked. And if the
questioning by the
prosecutor was improper the learned magistrate
cured any such improprietary when eventually she asked the
complainant whether she
understood what it meant to take the oath.
She did and she was sworn in, which is more than can be expected of
child witnesses
who are often simply warned to tell the truth.
Ideally presiding officers should question a witness to test for
competency and
offer the parties an opportunity to raise any concerns
they might have about competency.
[59]
The second procedural point that was raised
was that the charge was vague and that the appellant was not advised
fully of the implications
of the minimum sentence legislation; nor
was he advised of his right to object to the charge or to request
further particulars.
There is no substance in this challenge too. The
appellant was legally represented throughout the proceedings. His
legal representative
had ample opportunity to request further
particulars and to advise the appellant of the implications of the
minimum sentence legislation.
On the record it is clear that the
appellant was aware that he was being charged for rape of a minor of
eleven years and that a
conviction on that charge could attract a
sentence of life imprisonment. In the circumstances the appellant had
a clear presentation
of the charges and what he had to overcome to
avoid a sentence of life imprisonment.
[60]
I propose an order in the following terms:
The conviction of the
appellant by the regional magistrate and his sentence to life
imprisonment by the high court are set aside
and substituted with the
following:
‘
The appellant
is found not guilty and is discharged.’
D. Pillay J
Koen J
Van Zyl J
APPEARANCES
Counsel for the
Appellant : S.B Mngadi
Instructed by : Durban
Justice Centre
Tel: (031) 304
0100
Counsel for the
Respondent : C. Kander
Instructed by : The
Director of Public Prosecutions
Pietermaritzburg
Tel: (033) 845
4400