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[2016] ZAKZPHC 20
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Mathenjwa v S (AR509/2014) [2016] ZAKZPHC 20 (19 February 2016)
IN THE HIGH
COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
JUDGMENT
NOT REPORTABLE
CASE NO: AR509/2014
In the matter
between:
MBONGISENI
NJENGENJA MATHENJWA
APPELLANT
and
THE STATE
RESPONDENT
Coram
: Gorven et Seegobin JJ
Heard
: 11 February 2016
Delivered
: 19 February 2016
ORDER
On appeal
from the Regional Court, Pongola (Mr S.B. Msani, sitting as a court
of first instance):
The
appeal is upheld and the conviction and sentence are set aside.
JUDGMENT
SEEGOBIN J
(Gorven J concurring):
[1] The
appellant, a 40 year old male, was charged in the Regional Court,
sitting at Pongola, with one count of rape. It was
alleged that
upon or about 11 July 2011 and at or near Itshelejuba, Pongola, in
the Regional Division of KwaZulu-Natal, the appellant
unlawfully and
intentionally had sexual intercourse with a female person, to wit
MN
[1]
,
a 10 year old girl, without her consent. The charge had to be
read with the relevant provisions of the Criminal Law Amendment
Act
105 of 1997 (CLA Act).
[2] The
appellant, who was legally represented, pleaded not guilty and denied
all the allegations against him. At the conclusion
of all the
evidence he was duly convicted. He was sentenced to life
imprisonment. The present appeal against conviction
and
sentence serve before this court by virtue of the appellant’s
automatic right of appeal in terms of s309 of the Criminal
Procedure
Act 51 of 1977 (CPA).
[3] Mr
Marimuthu
, who
appeared on behalf of the appellant, raised two preliminary issues:
the first was that the trial court had failed to establish
and record
the competence of the intermediary appointed in terms of s170A(4)(a)
of the CPA, and the second was that the trial court
failed to comply
with the provisions of s164 of the CPA by failing to ascertain
whether the complainant understood the nature and
import of the oath
and that she was capable of distinguishing between truth and lies.
[4] Dealing
with the first issue, it is apparent from the record that at the
commencement of the trial, the prosecutor applied for
the use of an
intermediary in terms of s170(A) of the CPA. There was no
objection to this by the defence. Before the
intermediary was
sworn in, she confirmed that she was employed by the Department of
Justice as an intermediary, that she was stationed
at the Pongola
Court and that she had acted as an intermediary in that court on 28
previous occasions. Having satisfied himself
that the
intermediary in question was a fit and proper person to carry out
such duties, the learned magistrate proceeded to swear
her in.
[5] Section
170(4)(a) of the CPA provides that the Minister may by notice in the
Gazette determine the persons or the category or
class of persons who
are competent to be appointed as intermediaries. There was
nothing in the present matter to suggest
that the intermediary
concerned was not such a person. In my view, the provisions of
s170(A)(4)(a) were complied with.
Mr Marimuthu quite fairly and
correctly in my view, accepted that this was the position and was
accordingly prepared to abandon
the point.
[6] As for as
the second issue, section 162 of the CPA provides:
“
(1)
Subject to the provisions of sections 163 and 164, no person shall
be examined as a witness in criminal proceedings unless
he is under
oath, which shall be administered by the presiding judicial officer
or, in the case of a superior court, by the presiding
judge or the
registrar of the court, and which shall be in the following form:
I
swear that the evidence that I shall give, shall be the truth, the
whole truth and nothing but the truth, so help me God.
(2)
If any person to whom the oath is administered wishes to take the
oath with uplifted hand, he shall be permitted to do so.
And s
164 provides:
'(1)
Any person, who is found not to understand the nature and import
of the oath or the affirmation, may be admitted to give
evidence in
criminal proceedings without taking the oath or making the
affirmation: Provided that such person shall, in lieu of
the oath or
affirmation, be admonished by the presiding judge or judicial officer
to speak the truth.
(2)
If such person wilfully and falsely states anything which, if
sworn, would have amounted to the offence of perjury or any
statutory offence punishable as perjury, he shall be deemed to have
committed that offence, and shall, upon conviction, be liable
to such
punishment as is by law provided as a punishment for that offence.”
[7]
A reading of s 162(1) makes it clear that, with the exception
of certain categories of witnesses falling under either s
163 or
164, it is peremptory for all witnesses in criminal trials to be
examined under oath
[2]
.
And the testimony of a witness, who has not been placed under oath
properly, has not made a proper affirmation or has not
been properly
admonished to speak the truth as provided for in the Act, lacks the
status and character of evidence and is
inadmissible
[3]
.
[8]
Section 164(1) is resorted to when a court is dealing with the
admission of evidence of a witness who, from ignorance arising
from
youth, defective education or other cause, is found not to understand
the nature and import of the oath or the affirmation.
Such a witness
must, instead of being sworn in or affirmed, be admonished by
the judicial officer to speak the truth. It is
clear from the reading
of s 164(1) that for it to be triggered there must be a finding that
the witness does not understand the
nature and import of the oath.
The finding must be preceded by some form of enquiry by the judicial
officer, to establish whether
the witness understands the nature
and import of the oath. If the judicial officer should find after
such an enquiry that the witness
does not possess the required
capacity to understand the nature and import of the oath, he or she
should establish whether
the witness can distinguish between truth
and lies
[4]
and, if the enquiry yields a positive outcome, admonish the witness
to speak the truth.
[9] Having
regard to the provisions of section 164,
supra
,
the following exchange is recorded between the learned magistrate and
the young complainant when the latter was called to testify:
“
COURT
How old are you MN?
WITNESS
I am 10 years old.
COURT
Do you go to school?
WITNESS
Yes.
COURT
What grade are you in this year?
WITNESS
In Grade 4.
COURT
What school do you go to? What is the name of your school?
INTERPRETER
Come again?
WITNESS
Sizakahle[?].
COURT
Is it Sizakahle Primary School?
WITNESS
Yes.
COURT
Where is that school?
WITNESS
It is at Kwbhembe[?] area.
COURT
Is that in Pongola?
WITNESS
Yes.
COURT
Who is your class teacher?
WITNESS
Ma’am Ntshangase.
COURT
Who is the principal of your school?
WITNESS
It is Mrs Ntshangase.
COURT
Is that the same teacher who is your class teacher?
WITNESS
No.
COURT
So, it is a different one?
WITNESS
Yes.
COURT
I see. What subjects do you do in Grade 4 this year?
WITNESS
IsiZulu, Maths, Afrikaans, L.O, EMS and Natural Science, Social
Science and Technology as well.
COURT
Okay, that is enough now. Can you count?
WITNESS
Yes.
COURT
Do you know the months of the year?
WITNESS
yes.
COURT
Just say these for us so that we can hear.
WITNESS
January, February, March, April, May, June, July, August, September,
October, December. …
[spoke in English].
Court
Yes. Do you know the colours? Just tell us the few colours that
you know.
WITNESS
Red, blue, white, black, yellow, purple, pink. … [spoke in
English]
COURT
Okay. Do you know the difference between the truth and lies?
WITNESS
No.
COURT
Do you know what it means to tell lies?
WITNESS
Yes.
COURT
Just tell us.
WITNESS
If you lie about your parents.
COURT
Is it good to do that?
WITNESS
No.
COURT
What happens if you tell lies, do you know? What happens to you?
WITNESS
I do not know.
COURT
You do not get punished?
WITNESS
You get punished.
COURT
Is it a good thing to tell lies?
WITNESS
No.
COURT
Do you know where you are today?
WITNESS
Yes.
COURT
Where are you?
WITNESS
I am in court.
COURT
Do you know that you are supposed to tell the truth in court?
WITNESS
Yes.
COURT
Are you going to tell us the truth today?
WITNESS
Yes.
COURT
You must please do so, you must speak freely, nothing is going to
happen
to you, you must tell us the truth only, you understand that.
You promise to tell us the truth? Please do not tell us
anything that another person may have told you to come and tell us.
Tell us only what you know, do you understand that? Not
what another
person told you to come and tell us.
MN
(admonished)
COURT
I am satisfied that the witness is competent to testify and she has
been duly admonished to tell the truth. You may proceed, Mr
Prosecutor.”
[10] In my
view, the above exchange indicates adequately that the learned
magistrate went far enough in his questioning to form
the opinion
that the young complainant possessed sufficient intelligence to
testify and had a proper appreciation of the duty to
speak the
truth. It was only after he had satisfied himself fully on
these aspects that he proceeded to admonish the complainant
to speak
the truth. In the circumstances, I do not consider that there
is any substance in the argument advanced on behalf
of the appellant
on this aspect.
[11] That
aside I have a fundamental problem with the conviction in this
matter, both insofar as the evidence is concerned as well
as the
manner in which the trial was conducted. In my view, the
evidence fell dismally short of establishing the guilt of
the
appellant beyond a reasonable doubt. There are certain clear
and blatant misdirections committed by the trial court.
These
were highlighted by Mr Marimuthu in argument and will be dealt with
hereunder.
Mr Mcanyana, for the State, was constrained to
concede that the conviction of the appellant could not be sustained
on the evidence.
In fairness to
Mr Mcanyana, it should be
pointed out that he did not draw the heads of argument on behalf of
the State.
[12] The
young complainant was a single witness to the alleged rape. As
such the cautionary rule was applicable to her evidence.
This
meant that her evidence had to be satisfactory in all material
respects. Tshiqi JA in
S v Raghubar
[5]
,
supra,
pointed out that:
“Whilst I
accept that it is not unusual for young children to experience
difficulties relating to the court what actually
happened, with the
precision expected of an adult, especially pertaining to incidents
concerning sexual behavior, as well as incidents
that occurred a
while ago, the need for caution cannot be ignored
.”
[13] In
S
v Viveiros
[6]
,
the SCA said the following with reference to young children and the
application of the cautionary rule:
“
'In
view of the nature of the charges and the age of the complainants it
is well to remind oneself at the outset that, whilst there
is no
statutory requirement that a child's evidence must be corroborated,
it has long been accepted that the evidence of young
children
should be treated with caution (
R v
Manda
1951 (3) SA 158
(A) at 163C;
Woji v Santam Insurance Co Limited
1981 (1) SA 1020
(A) at 1028B – D); and that the evidence in a
particular case involving sexual misconduct may call for a cautionary
approach
(
S v J
1998 (2) SA 984
(A) at 1009B). For reasons which will presently
emerge the present case is plainly one which calls for caution.”
[14]
A similar caution was meted out by the SCA in
S
v Stevens
[7]
,
as follows:
“[13]
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 manner 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.'
In
para 17 it further stated:
'As
indicated above, each of the complainants was a single witness in
respect of the alleged indecent assault upon her. In terms
of
section
28
of the
Criminal Procedure Act 51 of 1977
, an accused can be
convicted of any offence on the single evidence of any competent
witness. It is, however, a well-established
judicial practice that
the evidence of a single witness should be approached with caution,
his or her merits as a witness
being weighed against factors
which militate against his or her credibility (see, for example,
S
v Webber
1971 (3) SA 754
(A) at 758G
– H). The correct approach to the application of this so-called
cautionary rule was set out by Diemont JA in
S
v Sauls and Others
1981 (3) SA 172
(A) at 180E – G as follows:
"There
is no rule of thumb test or formula to apply when it comes to a
consideration of the credibility of the single
witness (see the
remarks of Rumpff JA in
S v Webber
. . . ). The trial judge
will weigh his evidence, will consider its merits and demerits and,
having done so, will decide whether
it is trustworthy and whether,
despite the fact that there are shortcomings or defects or
contradictions in the testimony, he is
satisfied that the truth
has been told. The cautionary rule referred to by De Villiers JP in
1932 [in
R v Mokoena
1932 OPD 79
at 80] may be a guide to a
right decision but it does not mean
'that
the appeal must succeed if any criticism, however slender, of
the witnesses' evidence were well-founded'
(per
Schreiner JA in
R v Nhlapo
(AD 10 November 1952) quoted in
R v
Bellingham
1955 (2) SA 566
(A) at
569.) It has been said more than once that the exercise of caution
must not be allowed to displace the exercise of common
sense.”
[15] Turning
to the matter at hand the following observations are made:
[15.1]
The first is that record in this matter comprises a total of 76 pages
of which only 23 pages make up the evidence that was
led by both the
prosecution and the defence. This, in my view, immediately
raises serious concerns about the manner in which
the evidence was
led and the lack of detail involved. Bearing in mind that the
matter involved a young complainant in a sexual
assault, one would
have expected the evidence to be led in some detail and with greater
clarity. This is not what happened
here as I proceed to
illustrate hereunder.
[15.2]
The charge sheet alleges that the rape occurred on 11 July 2011.
No attempt was made by the prosecution to establish
this fact when
the complainant testified. Nor did the court deem it necessary
to establish this fact for itself.
[15.3]
The complainant’s evidence was confusing and difficult to
follow. For instance, she creates the impression that
she
reported the incident to the witness Miss Moyo on the same day,
shortly after it occurred when she went to the stream to fetch
water. The impression is also created that Miss Moyo then took
her on the same day to the health workers who questioned her
and
thereafter the police were called and the appellant was arrested.
However, according to Miss Moyo she went to the complainant’s
homestead to check on the complainant’s mother who was ill and
it was only then that the complainant informed her that she
was raped
by her uncle. The complainant further told her that her uncle
also tried to rape Xolile but she ran away.
Once again, no
effort was made by the prosecutor or the court to ascertain when all
this took place. Miss Moyo also testified
that when she
observed the complainant on that occasion she noticed that she was
struggling to walk. It was then that she
called the police.
Miss Moyo was unable to say when the incident occurred. These
discrepancies in the evidence of the
complainant and the witness Miss
Moyo were never clarified.
[15.4]
The charge sheet alleges a single act of rape which occurred on a
specific date. The medical evidence, however, points
to three
incidents and indicates that this was the third one. The
medical report also records that the hymen was absent with
only
redness on the
labi majora
.
No swelling or tears were noted. It recorded that this was an
‘old incidence’.
[15.5]
The medical report (J88) completed by the doctor on 16 July 2011 was
admitted into evidence by agreement. The medical
doctor was not
called. In my view, the failure on the part of the prosecution
to call the evidence of the doctor leaves a
number of aspects arising
out of his examination unexplained. For instance, the doctor
concerned could have explained the
complete absence of the hymen in a
young child such as the complainant. He could have also
explained why no tears were found
or why he regarded this to be an
old incident. He could have also explained whether the redness
found might have been self-inflicted
or have arisen out of poor
hygiene. It is interesting to note from the medical report that
the doctor himself does not conclude
that the complainant was
sexually assaulted. He merely records “alleged sexually”
which could be interpreted
to mean many things.
[15.6]
It must be borne in mind that judicial officers do not have the
requisite medical knowledge or expertise to interpret these
medical
reports and to draw conclusions therefrom. It cannot be
emphasized more why medical evidence in matters of this nature
should
not be called in these cases where there is a need to clarify issues,
as happened in this case. It goes without saying
that the
medical evidence procured in such matters may make the difference
between a conviction and an acquittal or may even result
in a
conviction on a lesser charge. Perhaps it is time for the
office of the Director of Public Prosecutions to provide some
guidelines to lower courts on how to deal with matters of this
nature.
[16] The
above shortcomings in the evidence are not the only problems in this
matter. The judgment of the trial court is seriously
lacking in
detail and clarity. The learned magistrate simply paid lip
service to the cautionary rule without properly evaluating
the
evidence of the complainant to ensure that it met the requisite
standards for a safe conviction. Had the learned magistrate
conducted this exercise with some diligence he would have found that
the evidence did not go far enough to sustain a conviction.
[17] The
appellant’s version was a bare denial. This is not
surprising considering the sketchy nature of the evidence
he faced,
not least as to the date of the alleged offence. His
cross-examination was short and failed to reveal anything
of
significance. All in all, I do not believe that the State had
succeeded in proving the guilt of the appellant beyond reasonable
doubt. It follows that the conviction cannot stand and must be
set aside.
ORDER
[18] The
order I make is the following:
The
appeal is upheld and the conviction and sentence are set aside.
_______________
_______________
I agree
GORVEN J
Date of
Hearing
:
11 February 2016
Date of
Judgment
:
19 February 2016
Counsel for
Appellant
:
P Marimuthu
Instructed
by
:
Justice Centre, Pietermaritzburg
Counsel for
Respondent :
MV Mcanyana
Instructed
by
:
The Director of Public Prosecutions, Pietermaritzburg
[1]
To protect the identity of the minor child she
will be referred to as ‘MN’.
[2]
S v Mashava 1994(1) SACR 224 (T) at 228c-d; S v N
1996(2) SACR 225 (C) at 227b-c; S v Seymour 1998(1) SACR 66 (N); S v
Vumazonke
2000(1) SACR 619 (C) para10; and S v Raghubar 2013(1) SACR
398 (SCA).
[3]
DT Zeffertt & AP Paizes
The
South African Law of Evidence
(2 ed)
at 813.
[4]
S v N Supra n 1 at 229d-g.
[5]
2013(1) SACR 398 SCA.
[6]
[2000] 2 All SA (SCA).
[7]
[2005] 1 All SA (1) (SCA)