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[2016] ZAGPPHC 186
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Mkhari v S (A433/15) [2016] ZAGPPHC 186 (4 April 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
(GAUTENG
DIVISION, PRETORIA)
REPUBLIC
OF SOUTH AFRICA
04/04/2016
CASE
NO: A 433/15
Not
reportable
Not
of interest to other judges
Revised
In
the matter between:
ALBERT
SHAKA
MKHARI Appellant
and
THE
STATE Respondent
JUDGMENT
JANSE
VAN NIEUWENHUIZEN J
[1]
The appellant was convicted in the Nelspruit Regional Court,
Mpumalanga on a count of rape of a minor child and was sentenced
to
life imprisonment.
[2]
The appeal is against both conviction and sentence.
POINT
IN LIMINE
[3]
The appellant contends that the State failed to comply with the
provisions of section 162 of the Criminal Procedure Act, 51
of 1977
("the Act"), which section prescribes the administering of
the oath to witnesses. According to the appellant,
failure to
properly administer the oath in terms of section 162, renders the
proceedings irregular.
[4]
The point
in limine
pertains to the evidence of two state
witnesses and two defence witnesses.
[5]
Firstly and in respect of the evidence of the complainant the
following appears from the record:
"
COURT
:
How old are
you?
WITNESS
:
On the 8
th
of September I am
turning
16.
COURT
: Ja.
Thank you swear her in.
…………………………………………………………
.
INTERPRETER
:
This witness is sworn in your Worship."
[6]
The second state witness, T. X. Z. ("T…"), testified
through an intermediary and the following appears from
the record:
"
COURT
:
Thank you the full names of the witness.
WITNESS
: T. X.
Z.
COURT
:
Thank you, how old are
you?
WITNESS
:
(indistinct)
COURT
: We
cannot hear you, how old are you?
WITNESS
: Eleven
COURT
: That is
better thank you where do you stay?
WITNESS
:
Barberton
COURT
: Thank
you and how many brothers and sisters do you have?
WITNESS
:
I have one brother I do not have
a
sister.
COURT
: Thank
you do you go to school?
WITNESS
: Yes.
COURT
: Which
grade are you?
WITNESS
:
Grade
7.
COURT
: And do
you go to church?
WITNESS
: Yes
COURT
: And are
you taught about God?
WITNESS
: Yes.
COURT
:
Now if you go home today and you say you were here with Ms Mthethwa
will that be the truth or will it be
a
lie?
WITNESS
: The
truth.
COURT
: And are
you allowed to tell lies?
WITNESS
: No.
COURT
: Now do
you realise that if you tell lies you can be punished?
WITNESS:
Yes.
COURT
:
Now if you take the, or let
me
put it this way do you believe
in God?
WITNESS
: Yes
COURT
:
Now if you take
the oath and you call God as
your
witness that you speak the truth and nothing else but the truth do
you understand it?
WITNESS
: Yes
COURT
: And if
you tell lies you can be punished?
WITNESS
: Yes.
COURT
: Thank
you swear him in.
WITNESS
: So
help me God."
[7] Thirdly and in
respect of the appellant, the record reflects the following:
"COURT
:
Full names?
WITNESS
: Albert
Mkhari
COURT
: Swear
him in. Thank you mister, is he sworn in?
WITNESS
:
So
help me God."
[8] Lastly, the
appellant's wife, Dorah Tivani, was sworn in as follows:
"COURT:
Full names?
WITNESS
: Dorah
Tivani before Court.
COURT
: The
surname is?
WITNESS
: Tivani
Your Worship.
COURT
: Please
swear her in.
WITNESS
: So
help me God."
[9] Mr Van As, counsel
for the appellant, referred to several reported cases in support of
the point
in limine.
In
Mashaba and Another v The State
(20401/2014) [2015] ZASCA 16, the Supreme Court of Appeal
explained the necessity of deducing evidence under oath in para 10 of
the judgment:
"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.
(footnotes omitted)"
[10] In
Motsisi v The
State
(513/11) [2012] ZASCA 59, the Supreme Court of Appeal dealt
with the provisions of section 165 of the Act, which section reads as
follows:
"Where the person
concerned is to give his evidence through an interpreter or an
intermediary appointed under 107A (1), the
oath, affirmation or
admonition under 162, 163 or 164 shall be administered by the
presiding Judge or Judicial officer or the Registrar
of the court,
as
the
case
may be, through the interpreter or intermediary or
by the interpreter or intermediary in the presence or under the eyes
of the presiding
Judge or Judicial officer as
the case may
be."
[11] In the
Motsisi
matter,
supra,
the complainant in the matter was mentally
retarded and after asking the complainant a few questions, the
following appears in para
13 of the judgment
'
COURT
: Tell me
L, how old are you?
MS K
: I
am
17
-
years old [her mother had testified that
she
was born 22 June 1982 which meant that she was approximately 24
years
at the time].
COURT
:
Can you give
me
the date on which you were born, do you know
it?
M
S K: No Your Worship, I do not know.
COURT
:
Now tell me
what to do? Do you attend school or do you work,
or
do you merely stay at
home
or what do you do?
MS K
: Your
Worship no, I do [am] not attending school at this moment, but I was
attending at l[…] School.
COURT:
What are
you doing presently?
MS K:
I am
staying at home.
COURT
:
Yes now L, you are going to be asked questions relating to something
that transpired some time ago, something that happened to
you which
is what we are going to ask about. Now
as
you should answer
the questions freely without any fear as nothing is going to happen
to you and that relates to the accused, between
yourself and the
accused.
MS K
: Yes Your
Worship.
COURT
: Yes, now
you should try and tell us all that happened?
MS K
: Yes, L
admonished (through the Interpreter)
COURT
: Yes the
witness has been admonished. You may proceed Mr Prosecutor."
[12]
The Court commented in para [14] on the above excerpt from the
record:
"The above
questions were irrelevant and clearly did not demonstrate to the
court whether the complainant was able to testify
and importantly,
whether she was able to distinguish between truth and falsehood.”
[13]
The function of the presiding officer in respect of witnesses, whose
evidence falls within the purview of section 165, was
described as
follows in para [15]:
"The duty to
ensure that
a
witness has properly taken the oath, affirmation
or admonition is imposed on
a
presiding judicial officer. It
is the judicial officer who has to be satisfied that the witness
comprehends what it means to speak
the truth. The fact that
a
judicial officer may utilise the services of an interpreter or an
intermediary or
a
registrar of the court to communicate with
a
witness does not relieve the judicial officer of the duty to
perform this function, but what it does is that it provides the
judicial
officer with
a
means of utilising the assistance of
the functionaries to perform his or her functions ...:
A
judicial
officer cannot simply abdicate his or her responsibilities and hope
that an interpreter or intermediary will be able to
admonish
a
witness, as it appears to have been the case in this particular
matter."
[14]
Mr Mnisi, counsel on behalf of the state, argued that the Motsisi
matter is distinguishable from the facts in the present matter.
In
the present matter, the court a
quo
firstly satisfied itself
that the child witness knew what it meant to tell the truth and only
thereafter requested the intermediary
to swear him in.
[15]
It is important to bear in mind that section 165 provides for two
distinct situations. Firstly a presiding official may administer
the
oath through the interpreter or intermediary and secondly the oath
maybe administered by the interpreter or intermediary as
long as it
transpires in the presence of or under the eyes of the presiding
judicial officer.
[16]
In the present instance, the court a
quo
administered the oath
by requesting the intermediary, in respect of the child witness and
the interpreter, in respect of the other
three witnesses, to
administer the oath. The oath was duly administered in the presence
of and under the eyes of the magistrate.
The magistrate clearly did
not simply abdicate these duties to the intermediary and interpreter,
but remained in control of the
administering of the oath.
[17]
In the premises, I am satisfied that there was due compliance with
the requirements of section 162 read with section 165 of
the Act.
[18]
In my view, the point
in limine
should be dismissed.
CONVICTION
[19]
It appears from the evidence that the complainant, T., a friend C. M.
("C.") and the appellant were all living on
a farm in
Baberton in 2009. The complainant testified that on the day in
question she went with T., C. and the appellant to a sugar
cane field
on a nearby farm. I pause to mention that the complainant was twelve
years of age in 2009 and that both T. and C. were
younger than her.
[20]
Upon their arrival at the sugar cane field the appellant ordered T.
and C. to go to another side of the sugar cane field, leaving
the
complainant alone in his company. As soon as the complainant and the
appellant were alone, the appellant unzipped his trousers
and raped
the complainant.
[21]
The complainant cried out for help, whereupon T. and C. came running
towards the complainant and the appellant. According to
the
complainant, the appellant stood up and walked away.
[22]
T.,
in essence
confirmed the version of the complainant and
testified that the complainant was crying upon their arrival at the
scene. She was
busy putting on her underwear and told Trevor that the
appellant had raped her. There were minor contradictions in their
versions,
which contradictions were properly considered by the court
a
quo
in its judgment.
[23]
Dr Carl van Ramesdonk, who examined the complainant, testified that
the complainant had a sexually transmitted disease and
that she had
three tears in her hymen.
[24]
The appellant denied any knowledge of the rape and testified that he
was living in Bushbuckridge at the time. He stated that
he moved to
Bushbuckridge during 2009 because of a quarrel he had with the family
of the complainant. The appellant's wife testified
in his defence,
but differed with his evidence in respect of the timeline of events.
[25]
The court a
quo
correctly accepted the complainant's version,
which version was confirmed by T. and the medical facts. The
appellant and his wife
endeavoured to convince the court a
quo
that the charge was falsely laid against the appellant due to the
quarrel they had with the complainant's family. In view of the
reliable evidence produced by the State and the inherent
improbabilities in the version of the appellant, the appellant's
conviction
followed.
[26]
I am satisfied that the conviction is in order.
SENTENCE
[27]
Having found no substantial and compelling circumstances, the court a
quo
imposed
the minimum sentence of life imprisonment.
[28]
The complainant was a mere 12 years old at the time of the offence.
Save for the inherent trauma and emotional scarring that
accompanies
rape, she also contracted a sexually transmitted disease, which
disease had still not cleared up at time of the trial,
some four
years later.
[29]
The appellant's personal circumstances were not of such a nature that
it outweighed the seriousness of the offence and the
interests of the
community. Having regard to all the circumstances, I am satisfied
that the sentence is not disproportioned to
the crime committed. I am
of the view, that the appeal against sentence should be dismissed.
ORDER
I
propose the following order:
The appeal against
conviction and sentence is dismissed.
_____________________________
N
JANSE VAN NIEUWENHUIZEN
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA
I
agree.
_____________________________
D
T SKOSANA AJ
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA
It
is so ordered.
Appearances:
Counsel
for the Appellant: Advocate F Van As
Instructed
by: Pretoria Justice Centre
Counsel
for the state: Advocate Mnisi
Instructed
by: The State