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[2015] ZAGPPHC 80
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De Klerk v S (A434/2011) [2015] ZAGPPHC 80 (25 February 2015)
REPUBLIC
OF SOUTH AFRICA
IN THE GAUTENG
DIVISION OF THE HIGH COURT, PRETORIA
CASE No. A434/2011
DATE: 25 FEBRUARY
2015
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
DATE HEARD:
13/02/2014
In the matter
between:
PIETER
JOHANNES DE
KLERK
................................................................................................
Appellant
and
THE
STATE
.................................................................................................................................
Respondent
JUDGMENT
J W LOUW J
[1] The appellant
was convicted on 20 December 2007 in the Regional Court, Evander on
two counts of indecent assault of a fourteen
year old girl during
April 2006. He was sentenced on 27 February 2008 to ten years
imprisonment on count one and to two years imprisonment
on count two.
The sentence on count two was ordered to run concurrently with the
sentence on count one. Leave to appeal against
the convictions and
sentences was granted by the trial court on 6 March 2008.
[2] The reason why
the appeal is only now, 7 years later, being heard, is partly that
problems were encountered in obtaining a transcript
of the full
record and that parts of the record had to be reconstructed. It,
however, appears from a document signed by the magistrate
who
presided at the trial that the reconstructed record, which was
prepared by the learned magistrate assisted by the prosecutor
and the
defence attorney, was received by the clerk of the court at Evander
during March 2011 and has been lying there ever since.
It appears
therefore that the excessive delay of a further four years may have
been caused by the failure of the clerk of the court
to do his or her
work. This is clearly unacceptable and not in the interests of
justice.
[3] The complainant
was sixteen years old at the time of the trial. She attended a school
for handicapped children and children
with learning disabilities. The
evidence of one of the complainant's teachers, a Ms Oosthuizen, was
that the complainant was a
slow learner and that she could not read
properly. Although she was 16 years old, she had only progressed to
grade 6.
[4] The complainant
gave her evidence through an intermediary and in camera. It was
submitted by the appellant's counsel that the
trial court comitted a
serious irregularity by allowing a social worker, Ms van Rensburg, to
sit with the complainant in a room
from where the complainant gave
her evidence as the complainant was already assisted by an
intermediary. It, however, appears from
the transcribed record of the
proceedings that the complainant had requested the court to allow Ms
van Rensburg, who accompanied
the complainant to court, to sit with
her in the room. The court ordered Ms van Rensburg to sit on a chair
behind the complainant
and the intermediary and further ordered Ms
van Rensburg to sit still and that she should not at any stage say
anything. There
is no indication on record that the complainant was
in any way assisted or influenced by Ms van Rensburg when she gave
her evidence.
In my view, there is no merit in the submission that an
irregularity was committed.
[5] The evidence of
the complainant was that the appellant and his wife were friends of
her parents. On the day in question, at
about 16:00, the appellant's
wife asked the complainant's mother whether the complainant could
come and visit them and stay over.
The purpose apparently was so that
she could play with the appellant's and his wife's two small
children. The appellant and his
wife then fetched the appellant with
their motorcar.
[6] That evening,
the two children went to bed first. A bed was made for the
complainant on a mattress which was placed in the lounge.
The
appellant's wife went to sleep in their bedroom. The appellant told
the complainant he was going to watch television, which
was in the
bedroom. After the complainant went to sleep, the appellant came to
her while she was lying on her stomach and penetrated
her anus with
his penis. She demonstrated the incident in court by using dolls
which were provided to her. Her evidence was that
when the appellant
heard his wife move in the bedroom, he jumped up and ran to the
bathroom and thereafter went to the bedroom.
[7] The complainant
testified about a second incident when the appellant turned her on
her back and then put his hand inside the
boxer short she was wearing
and proceeded to put his finger into her vagina and moving it quicker
and quicker. After taking his
finger out, he did the same thing
again. When the complainant thereafter went to the bathroom, she saw
what she called white stuff
("wit goeters") running down
her legs. She wiped it off and went back to bed.
[8] The complainant
was taken back home the next day by the appellant and his wife. She
did not tell her parents about the incident
because she was afraid
that they would give her a hiding. On the second day, she decided to
tell Ms Candice Hamburg about what
had happened to her. Ms Hamburg
was at that stage residing with the complainant's parents and had a
good relationship with the
complainant. Ms Hamburg then informed the
complainant's mother. The mother's evidence was that she only
informed the complainant's
father a week later because of fear and
denial on her part that this could have happened to her child. The
complainant's father
then went to the appellant's house and accused
him of raping the complainant. The appellant testified that the
complainant's father
wanted to assault him and that he then suggested
that they go to the father's house to sort out the problem or that
they go to
the police station. They ended up going to the police
station and the appellant was then arrested.
[9] The complainant
was examined medically ten days after the incident. The doctor who
examined her, and who gave evidence, recorded
in the form J88 which
he completed that the complainant was emotionally disturbed but
physically fit. He found no physical lesions
but her hymen was absent
for which, he said, there could be many reasons, such as sexual
intercourse or accidental rupturing during
physical exercise or
cleaning by putting a finger inside the vagina. The medical evidence
was therefore of no assistance.
[10] The complainant
did not see the appellant or his wife again. When she went to the
appellant's sister in law, with whom she
had a good relationship, to
collect her teddy bear, she was given a letter which had been written
by the appellant's wife. The
complainant gave the letter to her
mother. The letter is addressed to the complainant. In the letter the
appellant's wife apologises
for what the appellant had done to her.
The appellant's wife says in the letter that the complainant had done
nothing wrong and
that the appellant was the cause of what had
happened. She also apologises to the appellant's father on behalf of
the appellant.
She further says that although she felt that she
should hate the appellant, she couldn't, and still loved him.
[11] The complainant
was asked by the court why she did not cry out for help. She answered
that the appellant had said to her that
if she called out, he would
hurt her with a cigarette.
[12] It is not clear
from the complainant's evidence when the second incident occurred.
During her evidence in chief she first said
that when the appellant
went to the bedroom after the first incident, he came back after a
while and was then busy with his finger.
She immediately added that
this did not happen on the same night. She was asked how long after
the first incident the second incident
occurred, but was unable to
say. The complainant's evidence was that she did sleep over at the
appellant's house on a second occasion.
She said that the reason why
she again went there was because the appellant's wife had asked her
mother whether the complainant
could sleep over to look after their
children as she and the appellant had to go out for the evening.
During cross-examination
she said that the second incident occurred
two or three days after the first incident when she went to sleep at
the appellant's
place for the second time. Later she said that the
first incident happened in January and the second on 18 April and
that she only
made a report after the second incident. The trial
court found that, in view of the complainant's limited mental
capacity, it was
not surprising that she could not remember the
events in detail or to express herself logically and chronologically
about exactly
what happened.
[13] It was put to
the complainant that the appellant would testify that she wanted a
relationship with the appellant and on the
night of the incident she
put her hand on his private parts. He then took out her hand and
asked her not to do that. The complainant
denied this.
[14] Ms Hamburg's
evidence was that the report by the complainant was made to her the
day after the incident, which she said was
a Tuesday. Her evidence
was that the complainant told her that the appellant had fiddled with
her from the front and the back.
She did not give her much detail,
but told her that the appellant had put his finger inside her vagina
and that he had turned her
around and lay on her back and that his
penis was behind her. She did not tell her that the appellant
penetrated her anus with
his penis. The complainant was sad when she
related to Ms Hamburg what had happened. She did not ask the
complainant many questions.
Ms Hamburg then informed the
complainant's mother the same evening of what she had been told by
the complainant.
[15] The
complainant's mother testified that when the complainant returned
home the day after sleeping over at the appellant's house,
she was
withdrawn and very quiet. She asked the complainant what was wrong,
but the complainant did not tell her anything.
[16] It was put to
the complainant's mother that the appellant would testify that the
complainant's father offered to withdraw the
case on condition that
the appellant paid an amount of R50 000.00. She denied that and said
that while the appellant was in jail,
he phoned the complainant's
father and asked what it would cost to withdraw the case. She and her
husband never said that they
would accept any amount of money.
[17] The appellant's
evidence was that from the first day he and his wife started visiting
the complainant's parents, the complainant
flirted with him by
winking her eyes and that she then started asking to sleep over at
their house. Eventually the complainant's
mother asked that the
complainant sleep over so that they could give her a hiding to
discipline her as she didn't listen to her
parents. While he was
working on his car in the garage, the complainant started touching
her private parts. According to the appellant
this happened when the
complainant visited them during the day. He then said that she must
go home and he took her home. In regard
to the night about which the
complainant testified, the appellant said he was not even close to
her, he was in his bedroom with
his wife watching television. He went
to the bathroom and when he came out the complainant took his hand
and tried to put it on
her private parts. He took her hand away and
told her to go to sleep. He went back to bed. His wife was asleep
before him but she
was a light sleeper.
[18] The appellant
was asked what the reason might be why the complaint was laid against
him. He said that he thought that the complainant's
parents wanted to
get money from him and that they tried the same thing with his
brother. During cross-examination, he said that
on the day he was
incarcerated they obtained what he called a letter from an attorney
according to which they would settle the
matter for R100 000.00 and
one of his Golf motorcars. They then reduced the demand to R50 000.00
and the car. They did not give
his wife a copy of the letter. His
father told him about this while he was in jail. His wife then asked
her grandfather for the
money but his father said they should not
give the money and that they should fight the matter in court. The
appellant also didn't
think they should give the money and the car as
the parents could still proceed with the case. He said that two weeks
before, the
complainant's parents also tried the same thing with his
brother by threatening to lay a charge against his brother for doing
similar
things to the complainant. His brother however threatened to
take the complainant's father to court for something which the father
had done at work on the mine. The parents then didn't lay a charge
against his brother.
[19] The appellant
was asked in cross-examination about his evidence that the
complainant flirted with him. He said that she winked
her eyes at him
and rubbed her hands over her breasts and pulled her hand through her
legs. She did this when she could not easily
be seen by other people.
[20] The appellant
further testified that he told his wife about the complainant
grabbing his hand and trying to put it on her private
parts
approximately two days after this happened. His wife then asked him
why he didn't tell her immediately, then they would have
taken the
complainant home the same evening. He didn't tell his wife the same
evening because he didn't know what her reaction
would be.
[21] The appellant
said he knew about the letter which his wife had written, but that
she had told him that she wrote the letter
because she had been
through a similar experience and not to say that he was guilty.
[22] The appellant's
wife testified on his behalf. She was asked what the reason was for
the letter which she wrote. She said that
she was upset because the
appellant had been charged with rape and she wrote that she was sorry
if this had happened, but that
she did not believe he did it. The
whole tone of the letter was that it did happen and she profusely
apologised to the complainant
and to the complainant's father for
what had happened. When asked about this in cross-examination, her
explanation was that she
had been molested as a child and that she
was upset. Her evidence was that the first time that she heard about
the complainant
being raped by the appellant was when the
complainant's father came to their house and accused the appellant of
raping the complainant.
[23] It was argued
on behalf of the appellant that there was no evidence which indicated
that the appellant had admitted to his
wife that he had raped the
complainant. In this regard, reference was made to a paragraph in the
letter in which she wrote that
the appellant should admit to the
complainant's parents that he did it, and that she would go to the
appellant the following day
so that he could tell her and tell her
why he had hurt the complainant in that way. I agree that it is
therefore possible that
the appellant's wife, after hearing the
complainant's father accusing the appellant of raping the
complainant, assumed that it
had in fact happened and that she did
not again speak to the appellant after him being arrested and before
writing the letter.
[23] The appellant's
wife denied during cross-examination that the appellant told her
about the alleged conduct of the complainant
of grabbing his hand and
trying to put it on her private part. She said he told her nothing
about this. This contradiction between
the evidence of the appellant
and that of his wife causes one to doubt the appellant's version of
what happened.
[24] The appellant's
wife was asked whether she knew about the money and the motorcar
about which the complainant's parents had
approached the appellant's
father. She said that the complainant's mother telephoned her and
said that she had drawn up a settlement
agreement and asked her to
come and look at it and tell her what she thought of it. She went
there and looked at the agreement.
The car which was mentioned was
still subject to a hire purchase agreement and she was not able to
pay the R100 000.00. She was
promised a copy of the agreement, but
she never received one. The appellant's wife then went and discussed
the settlement agreement
with the appellant's father. He wanted to
reach a settlement, but when he heard what the terms were, said that
they should rather
fight the court case.
[25] The appellant's
wife was asked whether she at any stage saw the complainant rubbing
over her breasts and over her private parts
and winking at the
appellant. She said that she saw it happen once while in the company
of people.
[26] The trial court
took into account that the complainant was a single witness, but
found that, taking her mental abilities into
account, it was not
surprising that she was not able to remember the events in fine
detail or to express herself logically and
chronologically about what
had happened but that, in essence, her version was very clear. The
court found that, having regard to
the complainant's mental
capabilities, there were aspects of her evidence that she would not
have been able to fabricate, e.g.
that when she went to the bathroom
after the appellant had penetrated her anally, she saw white stuff
running down her legs.
It also referred to
her evidence that when it sounded as if the appellant's wife was
waking up, the appellant jumped up and ran
to the bathroom.
[27] The court
further found that the evidence of Ms Hamburg was to the point and
that her credibility could not be questioned.
The complainant's
mother impressed the court as a credible witness and accepted her
evidence that the ' complainant was quiet and
withdrawn the day after
the incident. The court also took account of the evidence of the
complainant's teacher Ms Oosthuizen that
the complainant was not able
to consistently persist with a lie.
[28] The court
rejected the allegations of the appellant that the complainant's
father had attempted to falsely incriminate the
appellant's brother 2
weeks before in order to make money. The court found that if that
were true, it would have been expected
that a full incriminating
version would have been placed before the court.
[30] It was argued
on behalf of the appellant that the trial court did not apply the
cautionary rule in respect of the evidence
of the complainant who was
a single witness as the court did not find that her evidence was
clear and satisfactory in every respect.
Reference was made in this
regard to the contradictions in the complainant's evidence about when
the two incidents took place,
to which I have referred above.
Reference was also made to the complainant's first statement to the
police in which she said that
the two incidents happened on the same
occasion, and to her third statement to the police in which she did
not mention that the
appellant had penetrated her anus with his
penis, but stated that he used his finger. The statements which the
complainant made
to the police were not objected to by the prosecutor
and were admitted in evidence by the court.
[31] Further
contradictions in the complainant's evidence were the following. In
her evidence in chief she said that when the appellant
put his finger
into her vagina, he pulled her short down. Then she said that he
didn't pull the short down but put his hand inside
the short. Her
evidence was also contradicted in important respects by that of Ms
Hamburg. The complainant's evidence was that
the first incident
occurred on a Saturday night which, if her evidence that the second
incident occurred on 18 April 2006 was correct,
would have been on 15
April 2006. Ms Hamburg's evidence was that the incident occurred on
the Monday night, which would have been
the 17
th
of April,
and that the complainant reported it to her the following day. Her
evidence was further that the complainant told her
that the appellant
had put his finger inside her vagina and that he had turned her
around and lay on her back and penetrated her
anus with his penis.
The complainant's evidence in cross-examination was that when she
made the report to Ms Hamburg, she was referring
to the first
incident and that she did not tell her about the second incident.
[32] In my view, the
trial court did not pay sufficient regard to the contradictions in
the evidence presented by the state and
erred in its finding that the
state proved its case beyond reasonable doubt. The evidence of the
complainant was not clear and
satisfactory in every material aspect.
It was not simply a question, as was found by the court, of the
complainant, because of
her mental capacity, not being able to
remember the events in fine detail or to express herself logically
and chronologically about
what had happened.
[33] Although I have
serious doubts about the veracity of the appellant's version, it is
trite that there is no onus on an accused
to convince a court that
his version is true. All that is required is that it must reasonably
possibly be true. He must be given
the benefit of the doubt even if
the court does not believe him. In this regard, it must be pointed
out that the court found that
the appellant and his wife were not
mendacious witnesses and that there were no material contradictions
in their evidence. The
court, however, rejected their evidence as
being improbable. That, of course, is not the correct test to be
applied.
[34]In the result,
the appeal must in my view succeed. I propose that the following
order be made:
[i] The appeal is
upheld.
[ii]
The conviction and sentence imposed by the court
a
quo
are
set aside and replaced with the following order:
"The accused is
found not guilty and is discharged"
I agree
E.M. KUBUSHI
JUDGE OF THE HIGH
COURT
J.W. LOUW
JUDGE OF THE HIGH
COURT