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[2016] ZAGPPHC 1169
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Solwandle v S (A612/14) [2016] ZAGPPHC 1169 (28 October 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
(GAUTENG
DIVISION, PRETORIA)
28/10.2016
CASE
NO: A612/14
Reportable:
NO
Of
interest to other judges: NO
REVISED
In
the matter between:
SAMKELO
SOLWANDLE
Appellant
and
THE
STATE
Respondent
JUDGMENT
TEFFO,
J
:
[1]
The appellant was convicted in the Regional Court, Benoni on 8
February 2013 on one count of rape of a 14 year old girl in
contravention of section 3 of the Sexual Offences and Related Matters
Act, 32 of 2007 read with the provisions of sections 51 and
Schedule
2 of the
Criminal Law Amendment Act 105 of 1997
. He was sentenced to
imprisonment for life. He now appeals against his conviction and
sentence with the leave of the court below.
[2]
The background facts giving rise to the conviction and sentence are
summarised as follows: T S (the complainant) alleged that
she was
raped by the appellant who was known to her. On the day of the
alleged incident her mother and stepfather were at work.
She did not
go to school. She was at her homestead with her two siblings who are
younger than her. The appellant visited them.
He asked her about the
whereabouts of her mother and stepfather and subsequent to her
informing him that they were at work, he
asked L, one of her
siblings, to show him their bedroom. Immediately thereafter he gave L
50 cents and sent her to go and buy chips.
After L had left to buy
chips, he dragged T S to the bedroom and raped her. She bathed after
she observed some white stuff and
blood coming from her vagina.
[3]
The incident happened on a Tuesday. She kept quiet about it until on
Saturday after her mother decided to check her private
parts and
started asking her questions. She still did not report anything to
her. Her mother could see that something was wrong
with her. She
threatened to beat her. It was only after being threatened that she
reported that she was raped by the appellant.
Eventually the matter
was reported to the police. While the appellant admitted that he
visited the complainant's homestead on the
day in question, he denied
his involvement in the commission of the offence.
[4]
The conviction of the appellant was challenged on the basis that the
trial court did not properly admonish the complainant in
terms of
section 164
of the
Criminal Procedure Act 51 of 1977
prior to her
testifying. It was argued that even if the evidence of the
complainant had been properly received by the trial court,
it was
riddled with contradictions and inconsistencies. It could not, so it
was argued, sustain a conviction of the appellant.
It was accordingly
submitted that the conviction of the appellant fell to be set aside.
[5]
Although the state disagreed with the submissions made on behalf of
the appellant, at some stage counsel for the state conceded
that
there were contradictions in the evidence of the complainant.
[6]
In considering this issue, a careful scrutiny of what transpired in
the court below is required.
[7]
Before the complainant testified the following was recorded:
"COURT: Your
full names? Madam the full names of the victim?
Your full names please, the victim,
the witness?
WITNESS: My
full name is T
S.
COURT: How old are you today?
WITNESS: 15
years old.
COURT: Do
you know what is it to take an oath?
WITNESS: No
I do not know.
COURT: But
you can differentiate between wrong and right?
WITNESS: Yes.
COURT: I
admonish you to tell the truth, the whole truth and
nothing else but the truth.
WITNESS: Yes.”
[8]
Section 162
(subject to
sections 163
and
164
) of the
Criminal
Procedure Act prescribes
that no person shall be examined in criminal
proceedings unless he/she is under oath.
[9]
Section 163
provides for the making of an affirmation
in lieu
of
an oath if there is an objection to taking the oath.
Section 164
allows for the admonishment of a witness by a judicial officer to
speak the truth where it is found that such a witness did not
understand the nature of the oath or affirmation.
[10]
The need for evidence to be given under oath, affirmation or
admonishment was summed up by the Constitutional Court in
OPP,
Transvaal v Minister of Justice and Constitutional Development
2009
(2) SACR 130
(CC) at para [166] as follows:
"The reason for evidence to be
given under oath or affirmation or for a person to be admonished to
speak the truth is to ensure
that the evidence given is reliable.
Knowledge that a child knows and understands what it means to tell
the truth gives the assurance
that the evidence can be relied upon.
It is in fact a precondition for admonishing a child to tell the
truth that the child can
comprehend what it means to tell the truth.
The evidence of a child who does not understand what it means to tell
the truth is
not reliable. It would undermine the accused's right to
a fair trial were such evidence to be admitted. To my mind, it does
not
amount to violation of
s
28(2)
to exclude the evidence of
such a child. The risk of a conviction based on unreliable evidence
is too great to permit
a
child who does not understand what it
means to speak the truth to testify. This would indeed have serious
consequences for the administration
of justice."
[11]
Section 192
of the
Criminal Procedure Act declares
generally that
unless specially excluded, all persons are both competent and
compellable witnesses. A witness is competent to testify
if his or
her evidence may properly be put before the court. If a child does
not have the ability to distinguish between truth
and untruth, such a
child is not a competent witness. It is the duty of the presiding
officer to satisfy himself or herself that
the child can distinguish
between truth and untruth. The court can also hear evidence as to the
competence of the child to testify.
Such evidence assists the court
in deciding (a) whether the evidence of the child is to be admitted;
and (b) the weight (value)
to be attached to that evidence. The
maturity and understanding of the particular child must be considered
by the presiding judicial
officer, who must determine whether the
child has sufficient intelligence to testify and a proper
appreciation of the duty to speak
the truth. The court may not merely
accept assurances of competency from counsel. The language used in
all three sections is peremptory.
[12]
Before proceeding with the evidence of the complainant, the
prosecution handed the report of the psychiatrist, Dr B A Pangela,
to
the court with the consent of the defence. Para 4 of the report
reads:
"ASSESSMENT RESULTS
Due to T's poor cooperation and an
extremely sluggish pace,
a
psychometric assessment could not
yield reliable results. A clinical assessment indicates that T is
mentally retarded and appears
to be functioning below the age of 10
years. This indicates that T's ability to distinguish between right
and wrong is compromised
to the age below 10 years."
[13]
The Supreme Court of Appeal in
S v Matshivha
2014 (1) SACR 29
(SCA), at para [11] analysed the provisions of
section 164(1)
as follows:
"
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 and, if the enquiry yields
a
positive outcome admonish the witness to speak the truth."
[14]
It was clear from the enquiry by the magistrate that the complainant
who was 15 years old at the time she testified, did not
understand
the nature and import of the oath. It follows that for such a child
to be considered a competent witness, she must be
able to demonstrate
that she understands the difference between the truth and lies. There
was no attempt whatsoever by the magistrate
to establish whether the
complainant could differentiate between the truth and lies. There is
no indication on the record that
before the complainant was
admonished to tell the truth, the magistrate satisfied himself upon
proper enquiry that the complainant
knew the difference between the
truth and lies.
[15]
The magistrate was obliged to satisfy himself before admonishing the
complainant to tell the truth that she was a competent
witness in
that she could distinguish between the truth and lies especially if
one takes into account the contents of Dr Pangela's
report who
concluded after assessing the complainant that she was mentally
retarded, appeared to be functioning below the age of
10 years and
that her ability to distinguish between right and wrong was
compromised to the age below 10 years.
[16]
It was argued on behalf of the state that the report by Dr Pangela
was handed in to determine whether the complainant was capable
of
testifying in court. It was further pointed out that whereas the
report stated that the complainant's ability to distinguish
between
right and wrong was compromised to the age below 10 years, she could
distinguish between right and wrong, was a capable
witness and that
the court was expected to apply the same level of caution when
evaluating her evidence as it would when evaluating
the evidence of a
child under the age of 10 years.
[17]
In my view there is no merit in the argument on behalf of the state.
The handing in of the report did not take away the duty
of the
magistrate as judicial officer to satisfy himself prior to
admonishing the complainant to tell the truth that she was a
competent witness. Instead the report required more from
the magistrate. He failed to conduct a proper enquiry as was
required
of him in terms of the provisions of
section 164(1).
He did
not ensure that the evidence given by the complainant was reliable.
He did not determine whether the complainant had sufficient
intelligence to testify and a proper appreciation of the duty to
speak the truth. The evidence presented by the complainant at
the
court below is therefore not reliable. The absence of an enquiry into
whether a child witness understands the meaning of telling
the truth
results in such evidence being inadmissible (see
Mangoma v
S
[2013] ZASCA 205).
Admitting such evidence would undermine the
accused's right to a fair trial (see Constitutional Court in
OPP,
Transvaal v Minister of Justice and Constitutional Development
supra).
[18]
Although the above issue is regarded as a procedural issue, concerns
were also raised that even if the complainant's evidence
was properly
received by the trial court, there were inconsistencies in her
evidence and the evidence of the other state witnesses,
in
particular, Sister Christina Ronald who examined her after the
alleged rape and who compiled the J88 medical report. Reference
was
also made to the psychosocial report compiled by Ms Matsimela in
respect of the appellant and it was argued on behalf of the
appellant
that although the complainant disclosed to Ms Matsimela, according to
the report, that the appellant had been raping
her since 2008 and
that he had threatened to kill her should she report the rape to
anyone, the appellant reported to Ms Matsimela
that he suffers from
HIV/AIDS and according to Ms Matsimela the complainant tested
negative for HIV. If one is to accept that the
complainant was raped
by the appellant since 2008 until 2009, she would have contracted the
disease (HIV), so was it argued. The
fact that the complainant did
not report the rape at her first available opportunity but only after
her mother threatened her,
was one of the other concerns raised on
behalf of the appellant.
[19]
I have already indicated that the state conceded that there were some
contradictions in the evidence of the complainant but
submitted that
it should be determined whether the contradictions are material or
not. Further to this it was argued on behalf
of the state that the
criticism of the complainant's evidence relating to what she reported
to Ms Matsimela is without merit because
the judgment was handed down
on 08 February 2013 and the report of Ms Matsimela although it forms
part of the record is dated 12
April 2013.
[20]
It is correct that although the complainant testified that she was a
virgin at the time of the alleged rape, Sister Christina
Ronald who
examined her after the alleged rape and who compiled the J88 medical
report, concluded that there was evidence of previous
and recent
forceful penetration. In my view these discrepancies in the state's
evidence are material. Further to this the fact
that the complainant
disclosed to Ms Matsimela who compiled the psychosocial report in
respect of the appellant for purposes of
sentence, that the appellant
raped her more than once, puts her credibility into question. This
issue was raised for the first
time in the psychosocial report. It
was never raised in court and neither did the complainant report this
to her mother when she
reported the alleged rape to her. If it is
true that the alleged rape started in 2008 as she had reported to Ms
Matsimela, there
is no explanation why she did not report this to her
mother all along. I say this taking into account how it came about
that the
complainant reported the alleged rape to her mother. She was
allegedly raped on a Tuesday and she reported the rape on a Saturday
after her mother threatened to beat her up subsequent to examining
her and noticing that something was wrong with her.
[21]
The complainant's report about the rape is not convincing as it did
not happen voluntarily. She had to be threatened. It had
to be
suggested to her by her mother that she was no longer a virgin and
that it meant that something happened to her. The appellant
never
disputed that the complainant was raped. What he disputed was that he
was the perpetrator. The evidence of the complainant
taking into
account also the discrepancies between her evidence and that of
Sister Ronald should have created doubt in the mind
of the trial
court as to whether the appellant was the perpetrator or whether the
sexual intercourse was without consent. In my
view the trial court
misdirected itself in finding that the appellant raped the
complainant. I do not find it necessary to refer
the matter back to
the court below because apart from the admonition issue, it is clear
based on my reasoning above that the state's
evidence was
insufficient to convict the appellant. I am persuaded that the state
failed to prove its case beyond a reasonable
doubt against the
appellant. The conviction of the appellant, in my view, falls to be
set aside. It is therefore not necessary
to address the issue of
sentence.
[22]
In the result I propose the following order:
22.1 The appeal is upheld.
22.2 The conviction and sentence of
the appellant is set aside.
22.3 The appellant is found not guilty
and discharged.
__________________
M
J TEFFO
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
I
agree:
___________________
P
MABUSE
JUDGE
OF THE HIGH CO RT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
I
agree
___________________
C
PRETORIUS
JUDGE
OF HIGH COURT OF
SOUTH
AFRICA GAUTENG DIVISION, PRETORIA
MABUSE
J,
[23]
I have read the judgment by my colleague, Teffo J, in which Pretorius
J concurred and feel impelled to comment on 164 (1) of
the CPA. My
burning desire to comment arises, firstly, from the point
in
limine
raised by advocate LA van Wyk, the appellant's counsel, in
the appeal before us. In paragraph 5.3 of her heads of argument, and
the argument with which she persisted at the hearing of the appeal,
she stated that:
"TS
(my own abbreviation) was simply admonished by the trial magistrate
to tell the truth without
a
proper examination of her
understanding of what the truth is versus
a lie."
Mrs.
van Wyk found the admonition of the witness T.S. by the presiding
officer in the court a quo insufficient and submitted that
the trial
court misdirected itself in not establishing for itself whether the
complainant had all
"the ability to distinguish between truth
and falsity."
[24]
In support of her submission she relied on
S v Tshimbudzi
2013 (1)
SACR 528
(SCA),
in which the Supreme Court of Appeal, so she
stated in her heads of argument, held that it was essential that a
court makes some
enquiries so as to satisfy itself that a juvenile
witness understood and appreciated the distinction between the truth
and a lie.
She made no reference whatsoever to
S v B 2003 (1) SA
SV 52 HHA,
to which I will refer later in this part of the
judgment.
[25]
The second reason I needed to comment was the manner in which my
colleagues have expounded the meaning of
s 164
(1) of the CPA.
[26]
In the record of the proceedings in the court a
quo
the
following transpired:
"Court: How old
are
you
today?
Witness:15 years old.
Court: Do you know what it is to
take an oath?
Witness: No, I do not know.
Court: But can you differentiate
between wrong and right?
Witness: Yes.
Court: I admonish you to tell the
truth, the whole truth and nothing else but the truth Witness: Yes."
[27]
The child was, without much ado, allowed by the court a quo to
testify.
In
my view, the child was allowed to testify not because she could
distinguish between right and wrong nor because the presiding
officer
had made an enquiry in which he satisfied himself that the child
could distinguish between right and wrong but because,
after she had
told the court that she did not know what it was to take an oath, she
was allowed to testify.
Section 164(1)
provides as follows:
"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
a
person shall, in view of the oath or
affirmation, be admonished by the presiding judge or judicial officer
to speak the truth."
[28]
The court a
quo
made a finding after the witness had indicated
to it that she did not understand the nature and import of the oath.
It admonished
the witness to speak the truth and admitted her to give
evidence. If the child does not understand the oath, he or she ought
to
be admonished to speak the truth. In
S v B 2003(1) SA SV 52 HHA
paragraph 30
the Court stated that:
"[13]
Artikel 164(1) van die Wet het betrekking op 'n persoon wat weens
onbekende voortspruitend uit jeugdigheid, gebrekkige
opvoeding of 'n
ander oorsaak, bevind word
om
nie die aard of betekenis van
die eed of die bevestiging te begryp nie.
So 'n persoon
kan. nadat hy op die voorqeskrewe wvse gewaarsku is
om
die
waarheid te praat. toegelaat word
om
te getuig
sander
om
dit onder eed te doen of dit te
verstaan.
(my own underlining)"
My
understanding of this paragraph is that it is sufficient that the
presiding officer is satisfied that the witness does not understand
the oath. The presiding officer does not have to enquire into why
such a witness does not understand the oath nor does he have
to
enquire as to whether the witness knows the distinction between right
and wrong. As soon as the witness responds that he or
she does not
understand the oath, the presiding officer may, without much ado,
warn such a witness to speak the truth.
[29]
This correct legal procedure is supported by what appears in
paragraphs (15] and (16) of the said authority of
S v. B
supra. I will quote these two paragraphs copiously and highlight the
heart of the matter. In paragraph 15 the Court stated as follows:
"(15) Dit is duidelik dat
artikel 164 'n bevinding vereis dat 'n persoon weens onkunde
voortspruitende uit jeugdigheid, gebrekkige
opvoeding of ander
oorsaak nie die aard en betekenis van die eed of die bevestiging
begryp nie.
Soos
in die geval van 'n aantal vroi3ere
uitsprake, het die Hof
a quo
bes/is dat die feit dat 'n
bevinding vereis word, noodwendig inhou dat 'n ondersoek die
bevinding moet voorafgaan. (Sien
S
v. Mashava (supra) op 228
G-H);
S
v. Vuma Zonke 2000 (1)
SA SV
619 (K) op 622
FG).
Na my mening is dit 'n te enge uit/eg van die
artikel. Die artikel vereis nie uitdruklik dat so 'n ondersoek gehou
word nie en 'n
ondersoek is nie in a/le omstandighede nodig dat u nie
so 'n bevinding hoef te maak nie.
Dit kan byvoorbeeld
gebeur dat, wanneer gepoog word om die eed op te le of om 'n
bevestiging te kry, dit aan die lig kom dat die
betrokke persoon nie
die aard en betekenis van die eed of die bevestiging verstaan nie.
Die blote jeugdigheid van 'n kind kan so 'n bevinding
regverdig. Na my mening word niks meer vereis as dat die voorsittende
regtilike
amptenaar 'n oordeel moet fel dat 'n getuie weens onkunde
voortspruitend uit ieugdigheid. gebrekkige opvoeding of 'n ander
oorsaak
nie die aard of betekenis van die eed of bevestiging begryp
nie. Hoewel verkieslik word geen formele genotu/eerde bevinding
vereis
nie.
Sien
S
v. Stefaans
1999 (1)
SA
CV
182
J op 185 I).
(16) Die hof
a
quo was ook
van mening, weereens in oorstemming met 'n aantal gewysigdes, dat
indien 'n persoon nie die aard en betekenis van die
eed of die
bevestiging verstaan nie, ook vasgestel moet word or hy artikel 164
gewaarsku kan word
om
die waarheid te praat (sien S v. L
1973
(1) SA 344
(K) op 347 H- 3498, S v. N (supra) op 229e-g,
S v.
Vumazonke (supra) op 622g-h). (In S v L is gehandel met die vereiste
van artikel 222 van die Strafproses Wet 56 van 1955, die
voorloper
van artikel 164. Die bewoording van artikel 164 verskil aansienlik
van die van artikel 222.) Of so 'n ondersoek gehou
moet word hoef
egter nie deur ons beslis te word nie aangesien die hof
a quo
bevind het dat dit wet gedoen is is die vraag of dit wil gedoen
word nie deur die voorbehoue regsvrae geopper word nie."
[30]
The enquiry is, in my view, whether the presiding officer in the
court a
quo
complied with the provisions of
s 164
(1) of the
CPA in the sense of following the law as set out in S v B
supra.
If he did,
cadit quaestio.
If he did not, the enquiry will
in that regard be, in what respect did he not comply with the said
s
164
or S v. B
supra.
In conclusion on this point I do not
agree with the submission made by counsel for the appellant that the
trial court committed
a misdirection in not establishing for itself
whether the complainant was a competent witness before admonishing
her. It was unnecessary,
according to S v B supra, to do so.
[31]
The last point that I wish to address is the aspect relating to the
report by Dr. Phangela. Despite the report by Dr. Phangela
that the
witness T.S
"is mentally retarded and appears to be
functioning below the age of 10 years",
the court made no
adverse remarks about the witness her and her evidence.
"3.
The trial judge has
advantages
-
which the Appellate Court cannot have
-
in
seeing and hearing the witnesses, in being steeped in the atmosphere
of the trial court. Not only has he had the opportunity
of observing
their demeanour but also their appearances and whole personality.
This should never be overlooked.
6.
Even in drawing inferences the
trial judge may be in
a
better position than the Appellate
Court, in that he may be more able to estimate what is probable or
improbable in relation to
the particular people whom he has observed
at the trial.
8. Where there has been no
misdirection on fact by the trial judge, the presumption is that his
own conclusion is correct; the Appellate
Court will only reverse it
where it is convinced that it is wrong.
12. An Appellate Court should not
seek anxiously to discover reasons adverse to the conclusions of the
trial judge. No judgment
can ever be perfect and all-embracing, and
it does not necessary follow that, because something has not been
mentioned, therefore
it has not been considered.”
See
in this regard
R v. Dhlumayo and Another
1948 (2) SA 678
AD at
pages 705-6.
[32]
The trial court was aware of the remarks made by Dr. Phangela in her
report about the witness. It would obviously have been
alert. Where
no adverse remarks were made by the trial court, the appeal court
should find that the trial court was satisfied with
the evidence of
the witness. That it is so, is clear from the following remarks made
by the Court a quo:
"I
do not have any reason why I should not believe that the victim told
the truth that the person who penetrated her was the
accused and I
have got no reason not to believe Zoleka's evidence and Ms. Ngose and
it was also not disputed that the accused had
the tendency of going
there even while he knew that the victim's mother may not be there."
[33]
In this regard I am therefore satisfied that the court a quo was
correct in making no adverse remarks about T.S., herself and
her
evidence and in not allowing the report of Dr Phangela to unduly
influence it.
[34]
I have already pointed out that in her heads of argument, Ms. van Wyk
did not refer to the authority of S v B
supra.
This case dealt
specifically with
s 164(1)
of the CPA whereas S v. Tshimbudzi supra
dealt with
s162
of the CPA. Accordingly the
case
of S v.
Tshimbudzi is no authority for the provisions of
s. 164
(1) of the
CPA.
[35]
I am however in agreement with my colleagues on the conclusion
arrived at.
P.M.
MABUSE
JUDGE
OF THE HIGH COURT
APPEARANCES
FOR
THE APPELLANT
L A VAN
WYK
INSTRUCTED
BY
LEGA LAID SA
FOR
THE RESPONDENT
ARNO J ROSSOUW
INSTRUCTED
BY
THE DIRECTOR OF PUBLIC PROSECUTIONS
HEARD
ON
12 AUGUST 2016
HANDED
DOWN ON
OCTOBER 2016