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[2016] ZAGPPHC 782
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Oosthuizen v S (A906/2015) [2016] ZAGPPHC 782 (29 August 2016)
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
DATE:
29/8/2016
CASE
NO: A906/2015
Reportable:
No
Of
interest to other judges: no
Revised.
In
the matter between:
HENDRIK
VAN VUUREN
OOSTHUIZEN
Appellant
and
THE
STATE
Respondent
JUDGMENT
AC
BASSON, J
[1]
The appellant, a 72 year old male and […] two young children,
was arraigned in the Region Court in Nelspruit with two
accounts of
rape in that he penetrated the vagina of A. (three years old) and B.
(18 months old) with an unknown object that can
include a penis or a
finger.
[2]
The
appellant was convicted and sentenced to life imprisonment on both
counts in terms of the Criminal Law Amendment Act.
[1]
The court ordered the two life sentences to run concurrently.
[3]
Before I briefly turn to the merits of the appeal, I should point out
that the State conceded that there was not sufficient
evidence before
the Court to have convicted the appellant in respect of B. (18 months
old). The concession is in my view well made.
The appeal against the
conviction and sentencing in respect of B. is consequently upheld.
[4]
The legal representative on behalf of the appellant explained the
competent verdicts to the appellant prior to the commencement
of the
proceedings. On the request from the magistrate they were again
explained to the appellant in court whereafter he confirmed
that he
understood the charged preferred against him as well as the competent
verdicts. The appellant pleaded not guilty to both
charges and denied
that he had committed the offences.
[5]
The first witness on behalf of the state Ms C. confirmed that the
appellant is her […] and that the two children (A.
and B.) are
her children with her husband Mr D. (the … of the appellant).
[6]
She confirmed that on 19 November 2011 the appellant came to her
house and fetched the two children in order to take them with
him to
town. The children were returned to their home around midday on the
same day. Upon their return she saw that the pants of
A. were the
wrong way round and that B’s trousers were unbuttoned. She
asked A why her pants were on the wrong side to which
she responded
that “...” had taken of her pants and that he had placed
his hands between her legs. Upon hearing this
her husband grabbed A.
and ran with her to their room. Ms C. confirmed that the appellant
did not respond to these allegations.
[7]
Ms C testified that the appellant was in close proximity when A.
uttered these words but that he merely turned around and went
to his
vehicle without saying a word. She went to the bedroom where her
husband was with A. When she turned around to open the
door with the
intention of going to the Police Station, she found the appellant at
the door eavesdropping on the conversation her
husband had with B.
The appellant was, according to her, standing so close to the door
that she bumped into him. She thereafter
went to the Police Station
and reported the incident. Both children were thereafter examined by
a nurse. Ms C. confirmed that the
appellant was alone when he fetched
and returned the children.
[8]
Sister Lyesha Debbie Moodley confirmed that she is a forensic nurse
and that she worked at Baberton Hospital. She confirmed
that she
examined both children and that she completed the two J88’s. In
respect of A. she confirmed that the hymen appeared
swollen and
bruised and that she concluded that the injuries were consistent with
forceful penetration by a penis or any other
object such as a finger.
She testified that the mere fact that the hymen was not torn did not
mean that there was no penetration.
[9]
In respect of B. she testified that there was an absence of injuries
but that that did not exclude the possibility of penetration
by a
penis or any other object. B. presented with redness of the vestibule
which is just inside the labia of the vagina. She, however,
conceded
that because B. was only 18 months old at the time she could have had
some form of infection. She nonetheless did not
exclude the
possibility of a penetration. I have already pointed out that it was
conceded on behalf of the State that the evidence
in respect of B.
does not support a conviction.
[10]
The appellant denied that he had sexually assaulted the two children.
He testified that he only took B. home with him and that
she played
with his wife. According to him B. fell over in the car whilst he was
driving and that it was then that he grabbed her
in his words “op
haar vrouedele om te keer dat sy nie seerkry nie”. He admitted
that he did not tell Ms C. about the
incident when he brought her
home. He also denied that he eavesdropped at the door.
[11]
The presiding magistrate accepted the evidence of Sister Moodley that
there was penetration in respect of A. especially if
regard is had to
the injuries sustained by her. The presiding magistrate also rejected
the version of the appellant in respect
of how B. sustained the
injury.
[12]
A. was not called as a witness consequent to a competency
report stating that she had difficulty in answering questions and
that
she only remembered that her “...” took off her
trousers but that she could not give details of what happened after
that.
[13]
B.
therefore did not give evidence. Her statement to her parents
regarding to what the appellant allegedly did to her is therefore
inadmissible. The question before the court was whether the remaining
circumstantial evidence was sufficient to prove the guilt
of the
appellant beyond reasonable doubt. In deciding this question it is
useful to have regard to what the Court in
S
v Mathikinca
[2]
held:
“
[12] I should add
that I have also considered the provisions of
s 3
of the
Law of
Evidence Amendment Act 45 of 1988
, which make provision for the
admittance of hearsay evidence in certain prescribed
circumstances. However, at the trial the
state did not attempt
to lay any basis for the invocation of this statutory provision. Nor
can it be said that the defence has
specifically agreed to the
introduction of the complaint, being hearsay evidence, in terms of
the provisions of
s 3
(a)
of the
Law of Evidence Amendment Act
supra
. A reading of the record rather shows that all the parties
involved, including the presiding magistrate, simply did not
consider
the issue of the admissibility of this evidence.
[13] It follows that the
statements made by the complainant to her mother and the medical
practitioner could not be relied upon
by the state in their quest to
prove the guilt of the appellant. In the circumstances, counsel
appearing for the state at
the appeal was constrained to submit that
the remaining circumstantial evidence was sufficient to prove the
guilt of the appellant
beyond reasonable doubt. The defence, on the
other hand, submitted that a careful reading of the record shows that
the circumstantial
evidence does not exclude the reasonable inference
that the injuries to the complainant's private parts could have been
caused in
a manner unrelated to any conduct on the part of the
appellant.”
[14]
The only evidence before the court was the medical evidence
which pointed to sexual assault and the fact that the appellant
fetched
A. and took her to his house where, according to him, she
played with his wife.
[15]
I am not persuaded that the circumstantial evidence, even if regard
is had to the unsatisfactory evidence tendered by the appellant
as to
how A. may have been injured, is sufficient to conclude beyond
reasonable doubt that the appellant sexually assaulted A.
[16]
I should also briefly refer to the fact that it was submitted on
behalf of the appellant that he could not follow the proceedings
because it was conducted in English. There is no basis for this
submission. It is clear from the record that the appellant followed
the proceedings. Moreover, the presiding magistrate was aware of the
fact that the appellant was Afrikaans speaking and was at
pains to
ensure that the appellant understood English. For example, when
Sister Moodley testified the appellant was pertinently
asked by the
presiding magistrate in Afrikaans whether he understood English
whereupon he confirmed that he did understood English
(p 97).
[17]
The order that I propose is the
following:
The conviction and
sentence in respect of both B. and A. are set aside and substituted
with the following:
“
The
accused is found not guilty and is discharged.”
_________________________
AC
BASSON
JUDGE
OF THE HIGH COURT
I
agree and it is so ordered
_________________________
CP
RABIE
JUDGE
OF THE HIGH COURT
Appearances:
For
the appellant
:
Adv. R
Kriel
Instructed
by
: Legal Aid
South Africa
For
the respondent
:
Adv. PCB Luyt
Instructed
by
: The State
Attorney
[1]
Act 105 of 1997.
[2]
See the decision in
S
v Mathikinca
2-16 (1) SACT 240 (WCC) and the authorities cited therein.