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[2015] ZAFSHC 12
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P v S (A94/2014) [2015] ZAFSHC 12 (29 January 2015)

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Certain
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FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case
No. : A94/2014
In
matter between:
M[…]
J[…] P[…]
…..................................................................................
Appellant
and
THE
STATE
............................................................................................
Respondent
CORAM:
LEKALE, J
et
MOTLOUNG, AJ
HEARD
ON: 1 SEPTEMBER 2014
DELIVERED
ON:29 JANUARY 2015
JUDGMENT
BY: MOTLOUNG, AJ
Introduction
[1]
This is an appeal against both conviction and sentence imposed by
the Welkom regional court on the 27 February 2014. The appellant
was
convicted of rape of his young daughter aged approximately 13 years
on the 30 March 2013, and sentenced to life imprisonment.
The court
also ordered that the appellant’s name be included in the
register of sexual offenders, and he was automatically
declared unfit
to possess a firearm. The appeal comes to this court in terms of the
accused’s automatic right of appeal as
provided for in section
10, read with section 43 of the Judial Matters Amendment Act 42 of
2013.
[2]
The respondent (hereafter referred to as “the state”)
alleged in the charge sheet that the accused had raped his
daughter
more than once without her consent between the years 2011 (when she
was still 11 years old) and the 30 March 2013. The
accused pleaded
not guilty to the charge.
[3]
The state, on the one hand, led the evidence of the complainant
herself and her mother, and also handed in the complainant’s

birth certificate as proof of her age, and the medical report (J88)
regarding the findings of the doctor who examined the complainant

(exhibit “A”). On the other hand, the accused, who was
legally represented throughout the trial, testified in his defence

and closed his case without calling any witness.
Evidence
led by the state and the defence
[4]
In brief, the state’s case was that the mother of the
complainant left with a friend at around 17h00 in order to go and

borrow some money from the said friend, leaving the complainant alone
with her father (the appellant) in the house (the home of
the
complainant). Thereafter, the accused instructed the complainant to
look through the window in order to check whether the complainant’s

mother was on her way back or not. The complainant complied and as
she was busy looking through the window, the accused went to
the
bedroom and returned with a pillow that he used to cover the
complainant’s face, and then carried her to her bedroom,
where
he threw her onto the bed, undressed her and raped her by sexually
penetrating her with his penis.
[5]
The appellant denied the allegations and stated that he found the
complainant alone at home, asked her if she was not hungry,
she said
she was not but only needed chips. He gave her R1.50 to go buy the
chips and also asked the complainant to look for her
mother at her
friend’s place. As the complainant was about to leave the
premises of the common home, next to the gate, the
complainant
indicated to him that her mother was coming. After the complainant’s
mother arrived, they (appellant and complainant’s
mother)
argued after he raised her neglect of household duties like cooking
for the family, and the complainant’s mother
would not let the
matter pass without staking her case. He spoke to her in a loud
voice, and as he did so, the complainant returned
from buying the
chips, and was distressed by the ongoing argument or fight. The
complainant even asked him not to assault her mother
and he indicated
that he was not going to do so and even apologized to her
(complainant) for what was going on. He subsequently
got arrested on
the 31 March 2013 on the trumped up charges of rape, and he was
informed by his wife (the complainant’s mother)
on one of her
prison visits that she actually coached the complainant to falsely
implicate him of rape.
[6]
The trial court found that the state had succeeded in proving its
case beyond reasonable doubt and found that the appellant’s

defence was not reasonably possibly true, and dismissed it as false.
It then convicted him and sentenced him as stated above.
[7]
The appellant is represented in this appeal by Mr Makhene whilst Mr
Sampisi appears for the state. The appellant submitted in
his grounds
of appeal that the trial court erred in finding that the complainant
had no reason or motive to falsely implicate him,
and that the
contradictions between the state witnesses were not material. When
the appellant’s heads of argument were subsequently
filed, it
was submitted that, as far as the conviction was concerned, the state
had failed to prove its case beyond reasonable
doubt, and that as
regards the sentence, the trial court over-emphasized the seriousness
of the offence and conversely under-emphasized
the personal
circumstances of the accused. As regards the sentence, it was
submitted that the court erred in finding that the accused’s

chances of rehabilitation were limited.
[8]
The state opposed the appeal on the grounds that, as far as the
conviction is concerned, the state succeeded in proving its
case
beyond reasonable doubt, the trial court correctly analysed the
evidence in that, although the complainant was a single and
child
witness, the trial court correctly applied the cautionary rules in
approaching her evidence, her testimony was corroborated
by the
medical report (exhibit “A”), there were no
contradictions in the evidence of the complainant, and the court
was
correct in finding that the accused’s defence could not be
reasonably possibly true. Furthermore, this court should not
lightly
interfere with the findings of the trial court in respect of the
credibility of the state witnesses. As regards the sentence,
the
state submitted that the trial court correctly found that there were
no substantial and compelling circumstances justifying
the imposition
of a lesser sentence than the prescribed minimum sentence of life
imprisonment.
Concession
made by Mr Makhene during argument
[9]
When the appeal was argued before us, Mr Makhene made the concession
that, from his study of the heads of appeal – compiled
by
himself – he was of the view that no grounds existed for the
appellant to successfully challenge the conviction, and indicated

that he was persisting with the appeal against sentence only.
[10]
When Mr Makhene was asked by the court whether he had instructions to
abandon the appeal against conviction
,
he indicated that the
issue was never
discussed with the appellant, and that it was something that he was
raising for the first time during argument in
court.
[11]
Mr Sampisi, in his argument, supported the concession made by Mr
Makhene and submitted that it was correctly made in his view.
[12]
In my view, counsel must always make sure that they act on
instructions from their clients, and it is clear, from the answers
of
Mr Makhene, that he had no mandate from the appellant to limit the
appeal to sentence only. In my view, the abandonment was,
therefore,
incorrectly made, as it had the effect of drastically and adversely
changing the appellant’s case on appeal, and
did so without the
appellant’s knowledge and approval. As I see it, the situation
was that the appellant, who was in prison
serving his sentence, was
under the impression that his counsel was going to argue against his
conviction on appeal – whereas
unbeknown to him his counsel was
executing a different mandate. In my view, this would be grossly
unfair against the appellant
and could amount to a serious
miscarriage of justice.
[13]
This being so, the abandonment was wrongly made and could be safely
ignored, and it was left up to this court to consider the
matter as
if the appeal against conviction was never abandoned – as it
did. The same applies to the concession made which,
in our view was
incorrectly made regard being had to the totality of evidence before
the trial court as appears below.
Issues
to be decided
[14]
This court has to determine, as a court of appeal, whether the
accused was correctly convicted and / or sentenced.
Approach
by a court of appeal
[15]
It is trite law that a court of appeal will not interfere with or
temper with the trial court’s judgment or decision
regarding
either conviction or sentence unless it finds that the trial court
misdirected itself as regards its findings of facts
or the law. See
R
v Dhlumayo & Another
1948
(2) SA 677
(A).
The
principle was
also
restated in
S v
Mlumbi
1991 (1) SACR 235
(SCA)
at
247g,
as follows:
“
Dit
is gevestigde reg dat indien daar geen wanvoorligting op die feite is
nie, die vermoede bestaan dat die verhoorhof se evaluering
van die
getuienis korrek is, en dat ‘n Hof van appel alleenlik darmee
sal inmeng indien dit oortuig is dat daardie evaluasie
verkeerd is”.
[16]
When evaluating or assessing evidence, it is imperative to evaluate
all the evidence, and not to be selective in determining
what
evidence to consider. As Nugent J (as he then was) in
S v Van der
Meyden
1999 (1) SACR 447
(W)
stated at 450:
“
What
must be borne in mind, however, is that the conclusion which is
reached (whether it be to convict or to acquit) must account
for all
the evidence. Some of the evidence might be found to be false, some
of it might be found to be unreliable, and some of
it might be found
to be only possibly false or unreliable, but none of it may simply be
ignored.
”
[17]
T
he facts found to be proven and the
reasons for the judgment of the trial court must appear in the
judgment of the trial court.
If there was relevant and material
evidence led during the trial, but such evidence is not dealt with in
any way in the judgment,
it is safe for a court of appeal to assume
that such evidence was either disregarded or not properly weighed or
even forgotten
about at the time of delivering the judgment.
[18]
Stated differently, this court must consider whether the magistrate
considered all the relevant evidence, weighed it correctly
and
correctly applied the law or legal principles to it in arriving at
his judgment in respect of both the conviction and sentence
(if
necessary). This exercise necessarily entails a close scrutiny of the
evidence of each witness within the context of the totality
of
evidence, and what the trial court’s findings were in relation
to such evidence.
[19]
If the court of appeal finds that there was a misdirection by the
trial court, it must then consider whether the misdirection,
viewed
either on its own or cumulatively together with any other
misdirections, is so material as to affect the judgment, in the
sense
that it justifies interference by the court of appeal.
[20]
It is also trite that if the trial court misdirected itself either on
the facts or the law, a court of appeal will be at large
to interfere
and deal with the matter as it deems fit, including substituting its
own order or decision for that of the trial court,
which may include
an order for the setting aside of a conviction or the altering of the
sentence.
[21]
Where there is an appeal against both conviction and sentence, and
the court of appeal sets the conviction aside, ordinarily
that would
be the end of the matter, as there would be no need to examine
whether the sentence imposed would have been appropriate.
[22]
In order to apply the above-mentioned legal principles to the facts
of this case, this court must determine, as regards the
conviction in
the first place, what the evidence of the state witnesses was, as
understood within the totality of the evidence
led, including
evidence led on the part of the defence, and compare it to the
factual findings made by the trial court in relation
to that
evidence, and then determine whether the trial court applied the law
or applicable legal principles correctly to the said
facts in coming
to its decisions / findings or judgment.
Applying
the above-mentioned legal principles to the facts of this case
[23]
I deal below with some of the findings of the trial court in order to
show that it, in my view, misdirected itself in several
respects.
23.1.
The trial court found that when the complainant’s mother asked
why the complainant was crying, the appellant answered
and made up
the story that the complainant was crying because he had asked her to
go to the shop and she refused. In making this
finding the trial
court lost sight of the fact that this was not the only evidence led
on this aspect. The complainant’s
mother gave contradictory
evidence on the same aspect by testifying that  the appellant
answered that she was crying because
she refused to be sent to go and
look for her (the mother). This shows that the trial court did not
take this contradiction into
account in assessing the complainant’s
or the state’s case, but accepted only one version for purposes
of its judgment
without stating its reasons for doing so. The trial
court also lost sight of the evidence given by the complainant’s
mother
when asked during cross-examination as to why would the
appellant hit the wall with fists in anger, in respect of which she
answered
that “
I thought maybe he was angry because he send
the child to go and look for me”
(quoted without
amendation). This answer was quite strange or bizarre in my view, as
it, in no small measure, significantly indirectly
confirmed that the
appellant said he had sent the complainant to go and look for her,
and lent more credence to the appellant’s
version that the
fight or argument was over her absence or neglect of duties.
Therefore, the trial court did not take all material
evidence led
into account as regards the answer that the appellant allegedly gave
when asked why the complainant was crying –
which amounts to a
misdirection in terms of the
van der Meyden
decision referred
to above.
23.2.
The trial court found that the complainant testified that she
reported the rape to her mother on the next day. This is incorrect
as
it was not the complainant, but her mother, who stated that the
complainant reported the rape to her on the next day. Furthermore,

the trial court lost sight of the fact that the complainant gave
contradictory evidence on the same aspect, by stating that she

reported the rape to her mother on the same day. The trial court also
lost sight of the fact that, significantly, related to the
same
aspect was the contradictory evidence of the complainant and her
mother. Whereas the complainant testified that it was only
herself
and her mother present when she reported the incident, her mother
contradicted her and stated that they were three –
herself, the
complainant and a lady by the name of S[…] – and that
the complainant did not want to report the incident
to her until
after S[…] arrived. Again, this shows that the trial court did
not take this material evidence and contradictions
into account in
assessing the complainant’s or the state’s case –
which amounts to a misdirection in my view.
23.3.
Furthermore, as the trial court lost sight of the evidence that the
complainant would not tell until S[…] arrived,
it consequently
failed to consider what role, if any, S[…] played in getting
the complainant to tell. The evidence that
the complainant would not
tell until S[…] arrived suggests that S[…] played a
role in getting the complainant to
tell. This being so, the court had
to examine this aspect in order to exclude the possibility of undue
influence or pressure having
been made to bear on the complainant to
make her report the alleged rape, which it did not do, and this
constitutes another misdirection
in my view.
23.4.
The trial court found that the complainant’s mother testified
about how the incident adversely affected the complainant
in respect
of her performance at school and her behaviour, which resulted in her
overall behaviour deteriorating and her becoming
troublesome, and
would go out at night and return home late. This finding is incorrect
as it fails to take account of all the material
evidence led on the
same aspect – which is both contradictory to the magistrate’s
finding and also irregular in terms
of how the magistrate dealt with
the aspect after asking the complainant’s mother about the
complainant’s behaviour
after the alleged rape.
23.5.
Contrary to the trial court’s finding, when the prosecutor
expressly posed the following question to the complainant’s

mother, “
Would you say the personality of the complainant
has changed since the incidents have become known”
, she
answered that “
She is still the same”
.
23.6.
Furthermore, after she had testified in her answer to the magistrate
that the complainant’s behaviour had changed after
the rape
incident (of the 30 March 2014), and the magistrate asked the state
and the defence if they had any questions arising
from the mother’s
testimony, the prosecutor – clearly realizing that the matter
needed to be clarified – asked
her “
Was her behaviour
different before the incident?”,
the magistrate intervened
and stated, inappropriately in my view (as he changed the question
that the prosecutor put to the complainant
and stated what question
should have been put to the witness) that “
You should say
after the incident, sorry the court didn’t hear your question”.
The prosecutor persisted by stating that “
I just wanted to
know Your Worship was her behaviour before the incident different
from the way it’s now because now she seems
to be coming in
later it’s not clear that ….”
, and the
magistrate, again, intervened before the prosecutor could even finish
his question, and stated that “
No she said only after this
incident”.
Obviously still not satisfied but constrained to
pursue the point further, the prosecutor then left the point by
stating that “
Is it only the change after, as it pleases the
court then the state has nothing Your Worship”.
23.7.
The passages quoted above show that the magistrate, having asked the
state and the defence whether they had any questions
arising from his
question regarding the behaviour of the complainant, actually did not
allow the state to ask questions regarding
the said aspect, and in
fact went even further in providing the answer to the question posed
by the prosecutor – instead
of affording the complainant’s
mother the opportunity to answer the question. This exchange gave the
impression, correctly
or incorrectly, that the magistrate did
everything possible to avoid the witness giving an answer different
to that already given
to him, as it would have weakened the state’s
case, and by implication, strengthened the appellant’s case.
23.8.
The trial court found that the complainant was able to recollect the
last incident (of 30 March 2014) and narrated it with
sufficient
detail, and also gave intelligent answers
.
In my view, it is
not correct that the complainant narrated the incident of 30 March
with sufficient detail or gave intelligent
answers. I am of the view
that the complainant gave incoherent answers when she was repeatedly
asked (in her evidence-in-chief)
a simple question of repeating to
the court what report she made to her mother. She repeatedly could
not provide an answer to the
question and ended up answering the
question by a simple “yes” to a leading question after
the court stood the matter
down when she was battling with answering
the question. I think that it is worth quoting the relevant part of
the record to demonstrate
this point:
“
Okay
tell us how did that come about that you told your mother? …My
mother asked me what’s going on and I told her,
and she asked
me did your father send you to the shop; I said no he did not.
Yes
and what did you tell her? …I said to her my father send me to
peep through the window and asked me to peep through the
window to
look if you are not coming.
What
else did you say?
Interpreter:
At first she mentioned something about the police Your Worship and I
asked her again I did not hear but now she is
telling that the police
arrived and they asked where is my father and he was coming.
Okay
we’ll still get to that, we are still at the place in your
testimony when you reported to your mother about the incident
where
your father had asked you to check the window to see if mother is not
coming … I told her that he asked me to peep
through the
window to look if my mother was not coming, whilst I was peeping he
then came with the pillow and he covered my face
with the pillow.
Did
you tell her what else happened? … He covered my face with a
pillow.
And
then? You can just explain to us if you can remember what you told
your mother, whether you told her about the incdent between
you and
your father or not, if you cannot remember if you told her you can
explain to us.
Court:
The court just wants to place on record that the child appears very
disturbed so much so that Mrs Malgas has to also place
her arm around
her, the court just feels it’s essential to place it on record
but she may answer.
Prosecutor:
Your Worship I don’t know it seems as if she’s maybe
upset I wonder …
Court:
What did she say now?
Interpreter:
No Your Worship she’s starting to talk but very softly I cannot
hear she’s like mumbling.
Court:
Yes it seems if she’s, is she disturbed Mrs Malgas?
Mrs
Malgas: It appears like that.
Court:
Let’s just give her some time madam Prosecutor. She doesn’t
have to discuss this case with anyone but just have
a few minutes to
herself and then we continue with it. … Yes Your Worship.
Prosecutor:
Your Worship, I understand from the (inaudible) officer that she
cried a lot this morning so I would assume we might
just be patient
with her today.
Court:
That’s no problem
COURT
ADJOURNS.
COURT
RESUMES.
Court:
….Continue madam Prosecutor.
Prosecutor:
As it pleases the court Your Worship. All we want to know M is
whether you at a later stage told your mother about the
sexual
intercourse that your father had tried or had with you that’s
all we want to know whether you had told her about that.
… Yes
I did”
(quoted without
amendation).
23.9.
In my view, the above excerpt shows that everyone involved in the
court proceedings – the prosecutor, the interpreter,
the
intermediary and the magistrate – battled to get the
complainant to answer a very simple, clear and straight-forward

question – where she was being asked to proceed and tell the
court what else did she tell her mother, taking off from where
she
told the court that the appellant asked her to peep through the
window and then covered her face with a pillow. She could not
give
any coherent answer thereto but started to mention something about
the police arriving the following day and where the appellant
was
whilst he was coming.
23.11.
Furthermore, when the complainant finally answered, she merely
confirmed a leading question from the prosecutor – whereby
the
prosecutor expressly asked her if she told her mother about the
sexual intercourse. What was required was the details of what
she
told her mother – and not the mere confirmation of a conclusion
(sexual intercourse) without stating the factual details
on which the
conclusion was based – which she never did. The prosecutor had
obviously given up on getting the required detail
from the
complainant, and concluded by asking her a leading question which
entailed only the conclusion. The said leading question
cannot, in my
view, be seen as a question that was intended to remind the
complainant (as a child witness requiring special treatment)
of her
testimony already on record (as she had not given the required detail
at any stage of her testimony up to that point) or
to guide her with
the intention that she should not testify on irrelevant, prejudicial
or improper facts. Although it has been
said that a court has a
discretion to allow a leading question in cases where a witness might
be requiring special handling –
like in the case of a child
witness – it has also been emphasized that a
court
must take care to be sure that the examiner is not coaching the
witness through leading questions.
In my
view, her purported answer to the question was worthless, and she had
effectively failed to answer the question.
23.12.
However, the trial court approached this aspect differently in its
judgment, and even provided an excuse for the complainant’s

failure to answer the question. In my view, this was a misdirection
on the part of the court, as the court, instead of disallowing
the
leading questions or criticizing the complainant for her failure to
answer the questions or provide incoherent answers, it,
instead,
provided a favourable excuse for the said failure. This obviously had
a bearing on the court’s assessment of the
evidence led, and
the trial court did not properly assess the complainant’s
evidence in my view.
23.13.
The trial court found that “
it
is worth noting that,
however, that it at times appeared that the
complainant
did
have difficulty in understanding certain questions – more
especially those relating to the incidents that occurred prior
to the
year 2011. The initial impression gained by the court was that she
did not understand the questions put to her, but upon
careful
scrutiny of her evidence, and as time passed, it was obvious to the
court that she was very disturbed by the incidents
that happened, and
that after testifying about the last incident of the 30 March 2014,
she simply did not want to testify any further
about anything else.
She gave the court the impression that she was emotionally disturbed
and she was crying, so much that the
court had to adjourn several
times in order to enable her to settle down emotionally. It was
obvious to the court, and to be expected
of a child to be in such
emotional distress, especially if she had to testify against her own
father”.
In my view, there was nothing difficult or not
clear about the questions that were posed to the complainant
regarding the alleged
previous incidents of sexual abuse. She even
answered those questions very clearly – saying she could not
remember what happened.
Furthermore, the court never adjourned at any
stage, unlike what the magistrate stated in his judgment, to the
effect that the
court had to adjourn several times in order to allow
her an opportunity to settle emotionally, in relation to answering
any questions
regarding the alleged previous incidents. Whilst it is
true that the court adjourned at some stages, those adjournments were
not
related to questions relating to the alleged previous incidents.
I quote the interaction between her, the interpreter and the
magistrate
to demonstrate this point:
“ …
was
that the only incident between you and your father or was there other
similar incidents? … There was other incidents
that took place
before.
Can
you still remember what year those incidents started or can you just
tell us if you cannot remember the year how old you were
when the
incidents started? … I was 11 years old.
M
can you please explain to us how did it come about or how did the
incidents start between you and your father when you were 11?
…
I cannot recall.
Okat
that’s fine, can you just tell us what happened between you and
your father when these incidents had in fact occurred?
… I
cannot recall.
Court:
She says she can’t recall, I think just leave it unless you
wanted to have a break again because I see she’s
again getting
feeling very ….
Prosecutor:
Your Worship I’ll just try a bit more.
Court:
No but she can’t recall.
Prosecutor:
The state just wants to maybe clarify your worship, Your Worship
whether, I think the witness Your Worship, Your Worship
can the state
just try something else maybe?
Court:
Yes.
Prosecutor:
Can you just explain to us the other incidents that you are referring
to where did these incidents that you are referring
to where did
these incidents take place? …We were at home.
Was
your mother present then? … She was not present.
…
I
don’t want you to ex
plain all
the incidents that you are referring to now in detail or anything I
just want to have you to, so that we understand, just
explain to
uswhat happened to you in the other incidents just shortly. …
I cannot recall.
Okat
that’s fine”
(quoted
without amendation).
23.14.
The trial court found that the “
complainant’s evidence
was clear and satisfactory in all material respects
.
She also
made a good impression
on the court, and
appears to be
honest, and although it was difficult for her to testify against her
father, the court got the impression that she
was simply telling the
truth although it was painful for her to do so”.
In my
view, this assessment of the complainant’s evidence is
incorrect as the trial court lost sight of the fact that she
could
not remember any detail of the alleged previous incidents – for
which the appellant was standing charged - despite
reporting them to
the doctor. In my view, this can hardly be described as being
satisfactory in all material respects.
23.15.
Furthermore, the prosecutor asked the complainant many leading
questions regarding crucial aspects of her testimony, and
this
negatively impacted upon the weight to be accorded to the
complainant’s evidence on those aspects, but the trial court

failed to take cognisance of this fact, which amounts to a
misdirection in my view. It is worth quoting some of the questions
and answers thereto in order to demonstrate this point:
“
Was
your mother in fact coming did you hear her? … Yes.
What
did you do then did you dress? … Yes I put on my clothes
because he told me that I must on your clothes very quickly
because
your mother is coming.
Okay
you dressed and did your mother arrived there? … Yes my mother
arrived and she asked me what’s going on.
What
was your emotional condition at the time that your mother asked you
what’s going on? … I was crying.
Did
you tell her what was going on? … My father was the one who
responded … “.
23.16.
The above excerpt shows that the prosecutor phrased her questions in
a manner that suggested answers to the complainant and
also put
sequence to events – instead of allowing the complainant
herself to do so.
23.17.
Even when the prosecutor needed to elicit evidence regarding whether
there was any conversation between the complainant and
the appellant,
instead of asking the complainant whether there was any conversation
between them or not, and at what stage such
conversation was (if the
answer was to be in the affirmative), the prosecutor asked the
following leading and/or loaded questions:
“
At the time when
the incident was almost finished and your mother your mother is
coming now and you were told to dress was there
any conversation
between your father and you whether you are able to tell her or not
to tell, was there anything like that?”,
to which the
complainant answered that “
He said I must not tell my mother
not anyone and then he gave me R1.50”,
to which the
prosecutor asked “
What was the money for did he say? …So
that I must not tell my mother”.
23.18.
The above-mentioned questions are very suggestive of the desired
answers.  instead of allowing the complainant an opportunity
to
tell her story in a simple, unhindered and unchannelled manner, the
prosecutor not only asked the question whether the mother
was in fact
coming, but then went further to suggest an answer, in my view,
whether she also heard her coming. This was unnecessary
and not
prudent. The power of suggestion in the question was simply
overwhelming, and coupled with the well-known pliability of
child
witnesses, it was incorrect to ask the question in this suggestive
manner (suggesting that she said the mother was coming
because she
heard her coming) whilst she was still giving her evidence-in-chief.
Furthermore, immediately thereafter, the prosecutor
asked another
leading question by asking the complainant “
What did you do
then did you dress?”
Instead of asking the complainant what
did she do when she heard her mother coming, and leaving the question
there, the prosecutor
went further to suggest an answer to the
complainant by asking if she did then dress.
23.19.
The questions regarding the conversation between the complainant and
the appellant are loaded as they necessarily imply or
assume two
important aspects or things that the complainant had not mentioned up
to this stage of her testimony (whilst still in
her
evidence-in-chief). Firstly, they suggest the timing of the
conversation – that it occurred at the time when the rape
was
almost finished, and when the complainant’s mother was coming,
and after the complainant had been instructed to dress.
Secondly,
they imply that there was indeed a conversation between the appellant
and the complainant. The complainant had not testified
about any
conversation that took place between her and the appellant.
Therefore, the question was suggestive of both aspects –
the
occurrence of the conversation and its timing.
23.20.
A leading question is the kind of question that, in its phrasing,
suggests its own
answer or desired answer and
or
contains the information the examiner is looking to have confirmed or
elicited. In many instances a simple “yes”
or “no”
would be sufficient to answer the question. This shows that the
details of the witness’ testimony does
not come from the
witness but from the examiner.
By
suggesting the answer to the complainant or putting to her questions
containining the information she desired the complainant
to confirm –
like the complainant finally did when asked if she told her mother
about the sexual intercourse that the appellant
had with or attempted
to have with her – by giving a simple “yes” as an
answer - the prosecutor reduced the witness'
impact, as she thereby
effectively put words into her mouth. A l
eading
question is objectionable because of the danger of collusion between
the examiner-in-chief and the witness and the impropriety
of
suggesting facts which are not already part of the evidence led. As
the prosecutor asked the complainant leading questions on
material
facts during her evidence-in-chief, t
his
adversely affected the weight, if any, to be accorded her answers.
23.21.
As stated above, this kind of questioning, on such crucial aspects,
is not to be encouraged in the light of the pliability
of children.
An uncritical acceptance of the complainant’s answers  on
the above-mentioned questions, as the trial court
did in my view,
would go against and displace the exercise of caution when assessing
the evidence of a single child witness, which
is a misdirection.
23.22.
Furthermore, the trial court inferred that the complainant was in
distress during her testimony because she had to testify
against her
own father, although it was painful to do so. In my view, the court
failed to consider the possibility that the complainant
was
distressed by the fact that she knew that she had been coached by her
mother to falsely implicate the appellant and was battling
with
telling a lie when she knew it to be such. The court did not consider
its own observation in respect of the complainant’s
mother that
she looked very afraid whilst giving her testimony. In my view, the
court failed to take this aspect into account in
considering the
probabilities. In my view, the mother could well have been afraid
from the knowledge that she was falsely implicating
the appellant –
particularly if viewed against the appellant’s defence or
version.
23.23.
As far as the trial court’s comments regarding the honesty of
the complainant and her pain because of having to testfy
against her
own father (the appellant), the Supreme Court of Appeal was worried
by a similar approach which was adopted by the
trial court (in
convicting the appellant of rape) in the decision of
Mangoma
v S (155/13)
[2013] ZASCA 205
(02 December 2013
).
Salduker JA stated the following at paragraph [13] in expressing her
worry at the comments or remarks made by the trial court
in assessing
the evidence of an appellant as contrasted with that of the state
witnesses closely related to him:
“
[13]
It is troubling that the trial judge made the following statement
during the appellant’s testimony: ‘Let me tell
you
the
court finds it very hard to believe the story you are telling it,
very hard, that your own blood children could tell against
you
and the one who is not your blood child is the one you say is more
reliable, it is more stranger than fiction, particularly the
boy who
is named after you”
(my
emphasis).
23.24.
The remarks or comments of the magistrate in this case regarding the
impression he got in respect of the complainant’s
honesty and
the pain of having to testify against her own father are in the same
league. They were, in my view, a misdirection
on the part of the
court.
23.25.
The trial court found that the appellant’s defence that the
complainant was told by her mother to falsely implicate
him was put
to the complainant who remained unaffected and she vehemently denied
it. In my view, this finding is incorrect as the
trial court did not
consider the conduct of the complainant, of looking scared and
traumatised. The court decided to stand the
matter down in order to
afford the complainant an opportunity to recoup her emotions after
the appellant’s defence (that
she had been told to lie by her
mother) was put to her. She was clearly affected in her testimony,
and as stated above, the trial
court incorrectly summarily inferred
that her conduct was the result of having to testify against her own
father.
23.26.
In my view, the particular circumstances of this case, where there
was no corroboration of the complainant’s evidence
(for an
example, by way of medical evidence which is not neutral), called for
a cautionary approach. Although the magistrate referred
to the
cautionary rule, I am of the view that he did not apply sufficient
caution in approaching the evidence of the complainant
–
particularly in the light of the leading and loaded questions that
related to his findings on material facts and the contradictions

between the testimony of the complainant and her mother referred to
above. Therefore, in my view, the trial court misdirected itself
on
this aspect too.
23.27.
The facts in the SCA decision of
Mangoma
mentioned above were briefly as follows: The
accused was convicted of rape of his 13-year old daughter and
sentenced to life imprisonment
in the Limpopo High Court. He appealed
to the SCA against both conviction and sentence, amongst others, on
the grounds that evidence
of the state witneses was riddled with
contradictions and inconsistencies, and also challenged the
admissibility and reliability
of the medical report relied upon by
the trial court. The SCA also dealt with the assessment of the
evidence of child witnesses
in rape cases in the matter. Salduker JA,
writing the unanimous decision of the court, stated the following at
paragraphs [14]
and [15]:
[14]
In any event,
it appears to us that the appellant is entitled
to an order that his conviction and sentence is set aside because the
state failed
to discharge the onus resting on it.
The evidence of
the child witnesses was not carefully scrutinised.
The
contradictions and inconsistencies were not properly considered,
nor
the possibility that they might have been put up to it by their
mother. In this fundamental regard the trial court erred.
[15]
In the result the appeal against both the conviction and sentence is
upheld and the conviction and sentence are set aside”
(my
emphasis).
23.28.
The SCA did not even deem it necessary to consider the merits or
demerits of the accused’s defence of an alibi before
setting
his conviction aside, in the light of its finding regarding how the
child witnesses’ evidence was dealt with by the
trial court –
which it found to have been deficient and constituted a fundamental
misdirection. In my view, as the trial
court did not carefully
scrutinise the complainant’s evidence by considering it against
the background of the contradictions
between her and her mother, and
between her evidence and her report to the doctor, it materially
misdirected itself in its assessment
of her evidence.
23.29.
The trial court found that according to the complainant’s
mother, she found the complainant crying in the house, and
that the
emotional state of the complainant actually corroborates the
complainant’s evidence that something bad happened
to her, and
that same is admissible as evidence to prove that sexual intercourse
occurred – as found in S v Hammond
2004 (2) SACR 303
(SCA). In
my view, the trial court erred on a material point in viewing the
testimony of the complainant crying as corroboration
of the
complainant’s version.
23.30.
Whilst it is quite possible for a court to find that the emotional
state of a victim or the complainant, immediately after
the incident
or at the first available opportunity of making her report regarding
the incident, may provide corroboration of her
evidence, and that the
complainant’s emotional state at the time of testifying in
court provides corroboration of her evidence
– a court may only
view such emotional state to be constituting corroboration if such
state is consistent with or similar
to the complainant’s
previous emotional state in relation to the incident, and
inconsistent with the appellant’s version
of events.
23.31.
In my view, even if the trial court accepted the evidence that the
complainant was crying, this cannot constitute corroboration
of the
complainant’s version because such evidence (of crying) is not
inconsistent with the appellant’s defence that
she cried
because of the distress she suffered from watching and listening to
the argument between the appellant and her mother,
and her apparent
anxiety that the appellant was going to assault her mother.
23.32.
The trial court also found that “
the medical report (exhibit
“A”) recorded history of the incident
and
is
consistent with the complainant’s testimony
.
Of
particular importance regarding the medical report is the fact that
it recorded that the complainant was emotionally hurt, crying,

sobbing and anxious, and these serve as corroboration of her evidence
that something bad happened to her”.
In my view, the trial
court seriously misdirected itself on a very material fact and a
point of law. It misdidirected itself in
finding that, despite there
being no evidence of previous sexual abuse of the complainant by the
appellant, the medical report
provided corroboration of the
complainant’s evidence. In doing so, the court lost sight of
the fact that there was, for all
intents and purposes, no evidence
before it of previous sexual abuse by the appellant. Therefore, the
court incorrectly saw the
medical report as corroborating
non-existent evidence – which is a misdirection on a point of
law and fact.
23.33.
The trial court found that gynaelogical examination indicated
slightly swollen and bruising on the clitoris as well as redness
and
erosion, and such findings support the allegations of penile vaginal
penetration. Therefore, the trial court regarded the medical
report
as providing proof , firstly of penile penetration despite the fact
that there was no evidence regarding how long was the
alleged sexual
intercourse or how many times did the appellant go up and down (if
ever). It is hard to imagine, in the absence
of other evidence, how a
penis that was inserted “just a little bit” (as the
complainant testified) could have caused
the swelling and bruising on
the clitoris, as well as redness and erosion. Secondly, the court
accepted the medical evidence as
corroboration of penile penetration
by the accused and nobody else, whereas such medical evidence was
neutral in the sense that
it did not point to the appellant as the
specific perpetrator of the alleged rape. Thirdly, the court accepted
the evidence as
corroboration of non-existent evidence, as there was
no evidence  of previous incidents of sexual abuse by the
appellant (as
the court itself finally found in acquitting the
appellant of such incidents). In my view, the trial court incorrectly
regarded
signs of previous sexual abuse, for which there was no
credible evidence from the complainant, as corroboration for the
alleged
rape incident of the 30 March 20
13
.
In fact, the medical report expressly stated that “
Clinical
findings no visible fresh injuries regarding the general examination
noted [and] [there was] indication of previous tears
due to penile
vaginal penetration … [and] the hymen as irregular” –
meaning that no injuries were observed resulting from the alleged
incident of the 30 March 2
013,
and the
only signs that were there were those of previous sexual activity
.
23.34.
The trial court found that the evidence of the doctor who examined
the complainant the next day showed the injuries that
he observed –
being the redness, erosion and swelling and penile vaginal
penetration – which was not disputed, and
thus it could be
accepted that sexual intercourse did take place. The trial court
misdirected itself in admitting this evidence
as support or
corroboration of the fact that sexual intercourse took place on the
30 March
2013
. Even the medical report
made it clear that there were no visible fresh injuries, but signs of
previous sexual intercourse as stated
above.
23.35.
The trial court also found that the forensic nurse’s report
that her findings were that there was penile vaginal penetration,

coupled with the fact that there were signs of previous vaginal
penetration as shown by the clefts and scars that were there, were

consistent with a history of sexual abuse of the complainant. The
trial court did not consider the gap that existed in the state’s

case as regards the evidence of the nurse. The state failed to call
the nurse as a witness, and no written report was presented
to the
court from the said nurse, and no explanation was furnished to the
court for not calling the said nurse to testify. The
only suggestion
of the nurse’s observations came from the prosecutor during the
cross-examination of the appellant. Therefore,
the trial court
misdirected itself in accepting non-existent evidence into the record
and further utilizing it in order to bolster
its assessment of the
evidence led in favour of the state’s case.
23.36.
The trial court found that in determining whether it was the accused
who raped the complainant, the court
had
to examine the accused’s version, and within this context found
that it was highly unlikely that the complainant would have
cried
because she wanted chips and the appellant gave her the money to go
buy them, as she wanted those chips. The court also found
that the
appellant’s testimony about the complainant’s sexual
activities or what he suspected were her sexual activities,
had no
factual basis and was based on trivial reasons. The court also found
that the appellant’s testimony about his wife
influencing the
complainant to falsely implicate him, “
could not hold as his
wife visited him in prison and they appeared to still have a
relationship”
. In my view, the trial court misdirected
itself in a number of respects in making the above-mentioned
findings. In my view, the
trial court misdirected itself in several
respects.
23.37.
Firstly, it misdirected itself by finding that the appellant’s
version was that the complainant cried because she wanted
chips. The
appellant’s version was that he gave her money to go and buy
chips as she said she needed them. He never said
she cried because
she needed the chips or money to buy them.
23.38.
Secondly, it misdirected itself as it was not entitled to draw any
adverse inference against the appellant because it found
his
suspicions to be baseless or implausible. – see
S
v Lesito
1996 (2) SACR 682
(O
),
wherein the accused said that the dagga found in his house had been
planted there by the police. He explicitly said that he did
not see
the police planting the dagga, but that he inferred the planting of
the dagga from other facts. In this regard the court
stated (at
687h-i):
“
Sou hy pertinent
beweer het dat hy so iets sou gesien het en sou
die hof kon bevind dat daardie bewering vals was, dan sou die
afleiding dat die
res van sy getuienis ook vals was, waarskynlik
geregverdig gewees het. Waar slegs bewys word dat ‘n afleiding
wat ‘n
persoon maak verkeerd is, is daar nie dieselfde ruimte
om al sy getuienis as vals te verwerp nie”.
23.39.
Thirdly, it misdirected itself in finding that the complainant’s
mother’s prison visits to the appellant were
an antithesis of
her capacity to influence the complainant to implicate him falsely.
In my view, the fact that the mother kept
on paying the appellant
visits in prison is not necessarily inconsistent with the capacity to
influence the complainant to falsely
implicate the appellant -
especially if one bears in mind the appellant’s version and the
mother’s testimony (including
her admission by nodding and that
the appellant would also ask her how is the complainant doing
outside). I am particularly troubled
by the fact that the mother
initially confirmed the submission by nodding her head without
uttering a word when the submission
was pertinently put to her under
cross-examination.
23.40.
The trial court found that when it was put to the appellant’s
wife during cross-examination that she influenced the
complainant to
falsely implicate him, she denied it, and it is improbable that she
would not have corrected the situation by admitting
that she
influenced the complainant if one considered that she still visited
him in prison. The court also stated that it did not
get an
impression that she coached the complainant to tell a lie. In my
view, the trial court misdirected itself by finding that
the
complainant’s mother denied influencing the complainant to
falsely implicate the appellant. What the record shows is
that when
it was put to her during cross-examination that she influenced the
complainant to falsely implicate the appellant, she
nodded her head
without saying anything. In other words, she answered by conduct.
Nodding ordinarily means one is agreeing. Therefore,
she initially
agreed with the statement that she told the appellant whilst visiting
him in prison that she influenced the complainant
to falsely
implicate him.
23.41.
As stated above, it was stated in the
van der Meyden
decision
mentioned above, that a judgment must account for all material
evidence. When the complainant’s mother initially
admitted the
statement (although she later denied it), this was very material and
significant. However, the judgment of the magistrate
fails to make
any reference to this significant development – it creates the
impression that there was never such a moment,
and that the only
evidence that was led before the court was that of the mother denying
the statement. The record actually shows
how the magistrate himself
interjected after the complainant’s mother nodded her head –
obviously surprised at the
admission made on such a decisive
question. I have also found nothing in the record to sustain the
magistrate’s suggestion
that the complainant’s mother did
not appear to understand the questions put to her. In my view, the
record shows that the
questions put to her were clear and she
understood them and answered them clearly by conduct. Furthermore,
the mother’s answers
to the magistrate’s questions are,
in my view, very significant and very revealing. I quote the
interaction between her,
Mrs Terblanche, the interpreter and the
magistrate to demonstrate this point.
“
You
still goes and visit the accused in prison is that correct, at time
to time? … Yes.
Now
according to accused in one of these visits you informed him that you
told the complainant to say that he raped her because
you were angry
at him you had a fight with him that evening.
Interpreter:
She’s nodding her head not saying anything Your Worship.
Court:
Did you tell your child to say that she was raped by the accused
person because of a fight that you and accused had? …
We did
not fight.
But
did you tell her to say anything of that sort? … I did not
talk to the child.
Mrs
Terblanche: According to the accused the argument between you and him
was when you returned
home and it was about you leaving the
home for a long time or a long period. … I’m always at
home with him.
Why
was he hitting …
Court:
It doesn’t appear that the witness is understanding the
questions and that is why the court is intervening, the question
has
to be repeated because it’s not in general, is that a
generalised question, the accused is talking about that particular

day when this incident took place that he was angry because she left
that day for a long period? … Is it on Saturday?
Mrs
Terblanche: Yes when you went to your friend to get the money. …
He did not tell me that he’s angry.
If
you didn’t have a fight or an argument why was he hitting the
wall with fists? … I thought maybe he was angry because
he
send the child to go and look for me.
Your
Worship I have no further questions”.
23.42.
Even if it was to be found that the complainant’s mother later
denied the statement, this would still not cure the
misdirection as
the latter answer contradicted the initial one, and the judgment
makes no reference to such contradiction or inconsistency
or the
pains that the magistrate and Mrs Terblanche had to endure in an
attempt to get her to answer to the statement or accusation
that she
influenced the complainant to falsely implicate the appellant.
23.43.
Furthermore, the subsequent denial of the complainant’s mother
must be placed in a proper perspective – it came
out of turn as
it came out of the ordinary process. It came after she had been
cross-examined by the defence attorney and after
her re-examination
by the prosecutor, and after the court had excused her by saying “
Yes
thank you maám you may stand down”.
I thus fail to
understand how that belated evidence could supersede her earlier
answers to Mrs Terbanche, the prosecutor and the
magistrate.
23.44.
In my view, her earlier answers must have been accorded due weight,
or at the very least, they must have been regarded as
contradictory
to her latter answers. Failure to deal with this aspect, which was no
small matter in her testimony, and which detained
the court for some
relatively reasonable period whilst trying to get a clearer answer
from her, was a fundamental misdirection
in my view and is very
crucial as it bears significant relevance to the appellant’s
defence. If the mother’s evidence
of agreeing that she
influenced the complainant to falsely implicate the appellant was
accepted by the trial court, it would have
spelt the collapse of the
state’s case. No wonder the court spent some time to get
clarity on the aspect, without any success.
23.45.
The trial court found that in evaluating the accused’s version,
the court is of the view that he was simply changing
his version all
the time, and his evidence was flawed with contradictions and
improbabilities, that he also gave far-fetched answers
most of the
time, his answers did not make sense, and he was not an impressive
witness, and the court was satisfied, based on its
assessment of the
totality of the evidence led, that his version was not reasonably
possibly true, and that the state succeeded
in proving its case
beyond reasonable doubt. In my view, the trial court’s
submission that the appellant was simply changing
his version all the
time is with respect
,
untenable, as it
finds no support from the record of the proceedings. I have not been
able to find any material changes of the
appellant’s version in
the record.
23.46.
To the contrary, I am of the view that he did not contradict himself
and was consistent in his version – namely that
he came home to
find the complainant alone, and after he had asked the complainant to
go look for her mother at her friend’s
place they had an
argument over why she neglected her household duties (like cooking
for him and the child), and that the complainant
cried as he was
arguing with her mother in a loud voice, thinking that he was about
to assault her mother, and that he suspected
that the complainant
might have been to some mischief by having sexual intercourse with
her opposite sex peers.
23.47.
In my view, it is no wonder that the magistrate could not even quote
one such alleged contradiction or inconsistency. As
regards
improbabilities, I find nothing improbable with the appellant’s
version. It is a well-known concept or phenomenon
for children to get
distressed and at times cry when exposed to arguments between their
parents, and it is not uncommon for one
parent to apologize to the
child for causing it the stress – like the appellant testified
that he did ask for forgiveness
from the complainant for shouting at
her mother. Furthermore, the appellant’s anger and hitting the
wall with a fist, which
remained unchallenged and uncontradicted, is
not inconsistent with him being angry at the complainant’s
mother for neglecting
her house duties.
23.48.
The trial court, correctly in my view, found that there was lack of
evidence as regards the previous history of sexual abuse
even though
the complainant mentioned it. Where, in my view, the trial court went
wrong, was in qualifying this correct observation
by stating what
,
in its view
,
were her reasons for her
inability to testify further regarding that history. The trial court,
instead of unequivocally accepting
the complainant’s and
state’s failure to lead any credible evidence on the alleged
previous sexual abuse, implicitly
accepted that there was indeed
previous sexual abuse by the accused, and sought to give an excuse
for the state’s and complainant’s
failure by devising its
own explanation for such failure.
23.49.
It must also be borne in mind that the excuse tendered by the
magistrate was never given by either the complainant herself
or the
prosecutor – but came for the first time like a lightning bolt
through the magistrate’s judgment. I would have
expected the
magistrate, at the very least in case he gained the impression that
there was a good excuse for the complainant’s
failure to
testify about her alleged previous abuse at the hands of the
appellant – to have openly expressed such opinion
on record so
that the defence could also be afforded an opportunity of addressing
such impression or opinion – either during
the testimony of the
complainant or during address by both sides - instead of springing up
such gained impression for the first
time as a surprise in his
judgment, when the defence no longer
had
an opportunity to do anything about it.
The
trial court’s failure to consider the probabilities or
improbabilities
[24]
Although the magistrate correctly pointed out that he had to apply
double caution to the evidence of the complainant because
she was a
single witness and a child witness, and stated that the court had to
be satisfied that the complainant’s evidence
was satisfactory
in all material respects, he merely paid lip service to this noble
principle of our law in my view, in that he
failed to consider the
following improbabilities:
24.1.
Both the complainant and her mother testified that the appellant sent
her mother to go and borrow money from a friend who
stayed at a
nearby house. Therefore, the complainant’s mother could have
returned at any moment as no time had been set for
her return.
Furthermore, she had not gone to her friend’s house to visit,
as to give the appellant the idea that she could
spend a long time
there. If it was the appellant who needed the money, it could be
expected that the complainant’s mother
would have a reason to
return home sooner than later in order to hand the borrowed money
over to the appellant. This being so,
it seems to defy logic as to
how the appellant could have thought that he would have enough time
to rape the complainant –
which included taking his clothes and
those of the complainant completely off.
24.2.
Furthermore, the complainant’s younger brother, who stayed in
the same house, could have arrived unannounced at any
moment to catch
the appellant in the act. The same applies for the tenants who stayed
outside on the same premises. It also sounds
so strange that in the
said circumstances the appellant would have left the door open.
24.3.
Furthermore, if the appellant was used to attacking the complainant
when her mother was absent, it does not appear to make
for enough
sense or logic as to why the complainant would have elected to stay
behind and alone with the appellant when her mother
left for a nearby
house with a friend (to go and fetch money).
24.4.
It also does not seem to add up in terms of time or opportunity that
the appellant – who is virtually almost caught
in the act,
would co-incidentally hear the complainant’s mother’s
voice from outside (I wonder what would have happened
if the mother
had silently come back and also wonder how the appellant could have
predicted or foreseen that he would be forewarned
by the mother’s
voice when she was on her way back), and still have the opportunity
to stop the rape, get up and instruct
the complainant to dress up,
then both he and the complainant get enough time to dress both the
pants, underpants and dress respectively,
and then search himself for
money, then give the complainant R1.50 and ask her not to tell, then
both left the bedroom to go to
different rooms (if the mother’s
version that she found the complainant in the dining room and the
appellant in the kitchen
is anything to go by), before the
complainant’s mother could enter. In this context one must not
lose sight of the fact that
the complainant stated during
cross-examination that her mother found both of them in the bedroom,
which is contradictory to the
her mother’s evidence that she
found her in the dining room and the appellant in the kitchen.
24.5.
According to the complainant’s mother, she was in the company
of S[…] when she returned from borrowing the money
on Saturday
(30 March 2013) and on Sunday (31 March 2013) when the complainant
reported the rape to her. In this respect she contradicted
the
complainant’s evidence to the effect that she was with her
mother only when making the report. Furthermore, the complainant

never mentioned that S[...] returned with her mother or that she
(S[...]) was there when her mother found her crying in the house.
The
easiest thing that the state could have done, if S[...] was present
on both occasions, would have been to call S[...] as a
witness to
come and confirm where the complainant and the appellant were, that
the complainant was crying and the appellant gave
the reason
testified to by either the complainant or her mother, and that the
appellant had indeed sent the complainant’s
mother to go and
borrow money, thus significantly contradicting the appellant’s
version that he came home to find the complainant
alone. This the
state failed to do without providing a reasonable explanation or
excuse therefor. In my view, it would have been
apposite to draw an
adverse inference against the state for this omission if S[...] was
available to testify.
24.6.
The state did not lead any evidence regarding what happened to the
money that the appellant allegedly borrowed from the mother’s

friend – as to whether the mother returned with it or what she
did with it. This would have lent more credence to the state’s

version that the appellant created an opportunity to rape the
complainant by sending her mother away, and contradicted the
appellant’s
version that he found the complainant alone at
home.
24.7.
If the appellant instructed his wife to borrow money from a friend
who was at the appellant’s home, by the name of J[…],

why did the state not call the said J[...] to disprove the accused’s
version that when he came home he found the complainant
alone? Her
evidence would have confirmed that she was there with the accused,
his wife/girlfriend and the complainant, when the
accused borrowed
money from her and asked the mother to accompany her to her home in
order to fetch the money. This would have
been the easiest and most
obvious evidence to lead in order to counter the appellant’s
version, and in the absence of an
explanation why she was not called
to testify if the was available
the
trial court was entitled to draw an adverse inference from failure to
call her – which it did not do.
24.8.
I find it very odd that the
co
mplainant
would have played along by quickly and silently getting dressed
(which I am forced to infer from the evidence led), instead
of
welcoming the opportunity of her mother catching her troublesome and
abusive father in the act. To the contrary, she testified
that she
did not think of getting off the bed and quickly escape when she
heard her mother’s voice because she thought that
the appellant
was going to hit her. If she feared that the appellant would hit her,
I wonder what happened to that fear by the
time she made her report
to her mother. If that fear was legitimate, it should have persisted
unless some kind of explanation is
rendered as to what made it go
away. This is simply bizarre in my view, especially as there was no
evidence that the appellant
threatened her in any way on the 30 March
2013 (the date of the only crime for which he was convicted), and any
suggestion of previous
threats to stab her with a knife or hit her
with a shoe (which was meant to prevent her from reporting the said
incidents, as against
preventing her from escaping during rape) was
not proven.
24.9.
It is also not clear as to what could have been the purpose of the
appellant using a pillow. This is important as one must
consider why
the accused used the pillow – was it in order to prevent the
complainant from recognizing him or to prevent
her from screaming? If
for either purpose, it does not seem to fit in with either purpose as
he is supposed to have thrown her
on the bed, thus exposing his
identity and / or affording the complainant an opportunity to scream
or call for help – especially
with the tenants staying on the
same premises, and the door being left open.
Contradictions
between the complainant, her mother and her report to the doctor
[25]
The magistrate also failed to deal with the contradictions between
the evidence of the complainant and her mother on the one
hand, and
the version that the complainant gave to the doctor who prepared the
medical report on the other hand. I mention below
some of the said
contradictions.
25.1.
Whereas the complainant testified that she reported the rape of the
30 March 2013 to her mother on the same day of the rape,
the mother
testified that she only did so on the next day.
25.2.
Whereas the complainant stated that it was only herself and her
mother when she reported the rape of the 30 March 2013, her
mother
stated that they were three – herself, the complainant and a
lady by the name of S[...]. She even stated that the
complainant
would not tell until the said S[...] arrived.
25.3.
Whereas the complainant stated that the appellant made up a story
that she (complainant) was crying because he sent her to
the shop and
she refused, the mother stated that he made up the story that she was
crying because he sent her to go look for her.
Furthermore, on either
version it seems nonsensical as to why the complainant would cry for
merely refusing to be sent. It would
perhaps have made sense if it
was alleged that the complainant was crying because she was
reprimanded or assaulted by the appellant
for refusing to be sent –
and there was no such evidence.
25.4.
Whereas the complainant told the doctor who compiled the medical
report that the appellant raped her on the 30 March 2013
in his
bedroom and on his bed, she testified in court that the appellant
took her to her bedroom where he raped her.
25.5.
Whereas the complainant told the doctor that the appellant had been
sexually abusing her since the year 2011, and that she
informed her
mother thereof who would not believe her, the complainant testified
in her oral testimony that she never reported
any of the previous
sexual abuse incidents to anyone. Her mother also contradicted her
version to the doctor to the effect that
she reported the previous
incidents to her, and that she would not believe her. If the doctor’s
report is correct –
and it was admitted as exhibit “A”
by consent between both sides – it then means that the
complainant has the
capacity to lie on a very important aspect. She
either lied to the doctor or in court during the trial. Furthermore,
if she told
the doctor the truth, it would mean that she most
probably lied in court in order to protect her mother against the
accusation
of not having taken her complaints up when she should
have, and this would lead to the question of who influenced her to
subsequently
lie during the trial. On either assumption that she was
influenced by someone to lie in favour of her mother, or that she
lied
on her own initiative and volition, she would just look bad as
an untrustworthy witness.
25.6.
Whereas the complainant had testified in her evidence-in-chief that
she did not report the previous incidents of sexual abuse
due
to the fact that the appellant had threatened to either stab her with
a knife or hit her with a shoe, she later testified under

cross-examination and when questioned by the court that she did not
report them as she thought that her mother would hit her if
she did.
25.7.
Whereas the complainant denied any knowledge of having reported to
the appellant, at some point, that her school friend had
sexual
intercourse with some boy on some school sports day, her mother
confirmed that there was such a report by the complainant.
The
right of this court to interfere
[26]
As stated above, the
trial court should have approached the evidence of the complainant
with caution, and it did not. Although the
magistrate stated that the
complainant’s evidence needed to be treated with caution, it,
however does not appear that he
critically evaluated the
complainant’s evidence as a single witness nor did he consider
all the evidence and the attendant
probabilities and/or
improbabilities before deciding whether it is reliable or not.
Furthermore, the magistrate did not even refer
to a single
contradiction, unsatisfactory feature or improbability in the state’s
evidence in his judgment. Stated differently,
the magistrate erred in
failing to apply caution and consider the contradictions and
improbabilities mentioned above, and this
amounted to a misdirection.
This being so, this court is at
large to consider the matter afresh and make whatever order it deems
fit. See the
Dlhumayo
and
Mlumbi
decisions mentioned above.
Fresh
consideration of the matter
[27]
The facts of this case can be summarized as follows: The essence of
the state’s case is that the complainant, a girl
aged 11 years
in the year 2011 and 13 years as at the 30 March 2013, stayed with
the appellant (who is her biological parent),
her mother and her
younger brother in the main house. There were tenants also staying on
the same premises in a shack. The complainant
was subjected to sexual
abuse by the appellant at the common home on a number of occasions
when her mother was not present since
the year 2011. The complainant
did not report this history of sexual abuse until after the last
incident of the 30 March 2013.
[28]
She reported the rape of the 30 March 2013 to her mother shortly
thereafter (be it on the same day according to the complainant
or the
next day according to her mother). After the complainant reported the
rape of the 30 March 2013, the crime was reported
to the police and
the complainant was examined by a medical doctor on the 1 April 201
3
,
who also prepared the medical report handed in as exhibit “A”.
It was during the said medical examination that the
complainant
repeated her report of the rape that occurred on the 30 March 2013
and also reported the previous incidents of sexual
abuse to the
doctor, who noted such reports in his report.
[29]
As regards the rape of the 30 March 2013, the appellant took the
complainant to her bedroom whilst the door was open. He forced

himself upon her and penetrated her vagina with his penis, but only a
bit. On hearing the complainant’s mother talking through
the
open door, the appellant stood up, instructed the complainant to get
dressed, got dressed himself and took the complainant’s
panty
and placed it into his pocket. According to the complainant, her
mother found both of them still inside the bedroom, whilst
according
to her mother she found the complainant in the dining room and the
appellant in the kitchen. According to the complainant’s

mother, when she asked why the complainant was crying, the appellant
sold her a dummy that the complainant was crying because she
refused
to be sent by the appellant to go look for her, whilst according to
the complainant the appellant said she refused to be
sent to the
shop.
[30]
According to the complainant, she reported the rape incident of the
30 March 2013 to her mother on the same day, whilst according
to her
mother she only did so on the next day and to both herself and
S[...], after which the matter was reported to the police,
and the
complainant was taken to the doctor for medical examination.
[31]
The complainant, who was hurt, crying, sobbing and anxious, told the
doctor that she was raped by the appellant since the year
2011, and
she reported such previous incidents to her mother who would not
believe her. According to her report to the doctor,
in so far as the
incident of the 30 March 2013 was concerned, the appellant raped her
in his bedroom and on his bed, whereas according
to her oral
testimony in court the incident took place in her own bedroom.
Thereafter, the appellant gave her panty back on the
next day 31
March 2013 at the same crime scene.
[32]
During examination of the complainant, the doctor observed that there
was a white thick mucus discharge around the cervix,
which was
possibly semen-like fluid and the complainant’s hymen looked
irregular in shape. She also observed that her clitoris
was slightly
swollen and bruised. She also noted redness and erosion on the said
clitoris and other vaginal parts. There were also
scars and
indications of previous tears due to penile vaginal penetration.
There was, however, no visible fresh injuries regarding
the general
examination, although such absence of injuries does not exclude the
occurrence of the alleged sexual assault of the
30 March 2013. The
doctor compiled a report regarding her examination and it was handed
in, by consent, as exhibit “A”.
[33]
A sealed exhibit bag also containing the complainant’s panty
was subsequently sent to the forensic laboratory for scientific
DNA
analysis. The results came back stating that no semen was detected on
the exhibits and consequently no DNA comparison could
be carried out,
and that the panty would be sent back to the complainant’s
address. The said results were handed in by consent
as exhibit “B”.
[34]
On the other hand, the appellant’s defence is that he disputes
the allegations against him, and he was informed by the
complainant’s
mother, while visiting him in prison after his incarceration and
before the trial could commence, that she
(mother of complainant) had
influenced the complainant to falsely implicate him of the rapes
because she was angry with him after
the argument they had on the 30
March 2013. According to him, he had arrived home around 17h00 on the
30 March 2013 and found the
complainant alone. He asked her if she
was not hungry and she said no, but indicated that she needed chips,
to which he responded
by giving her R1.50 so that she could go buy
the said chips. He also asked her to go look for her mother at her
friend’s
(mother’s friend) house.
[35]
As the complainant was about to leave the premises of the common
home, next to the gate, the complainant indicated to him that
her
mother was coming. After the complainant’s mother arrived, they
(appellant and complainant’s mother) argued after
he raised her
neglect of household duties like cooking for the family with her, and
the complainant’s mother would not let
the matter pass without
staking her case. He spoke to her in a loud voice, and as he did so,
the complainant returned from buying
the chips, and was distressed by
the ongoing argument or fight. The complainant even asked him not to
assault her mother and he
indicated that he was not going to do so
and even apologized to her (complainant) for what was going on.
[36]
He subsequently got arrested on the 31 March 2013 on the trumped up
charges of rape, and he was informed by his wife (the complainant’s

mother) on one of her prison visits that she actually coached the
complainant to falsely implicate him as stated above, for the
reasons
stated above.
The
application of caution to the evidence of young children
[37]
Although the state led the evidence of two witnesses, being the
complainant and her mother, and also led medical evidence and
DNA
results referred to above in the form of exhibits “A” and
“B”, the state’s case rests mainly,
and almost
entirely on the evidence of the complainant only. Therefore, it is of
crucial importance that the evidence of the complainant,
which must
in any event be approached with caution as a young child, be
satisfactory in all material respects. For me to be so
satisfied, it
means that I must be satisfied that the complainant’s version,
viewed against the totality of the evidence
led – including
that of her mother, the medical report and DNA results (which were
admitted as exhibits “A” and
“B”
respectively) and viewed in the light of the attendant probabilities
or improbabilities – must be beyond
reasonable criticism in all
respects, and must finally meet the requisite standard of proof
beyond reasonable doubt.
[38]
In
S v Cele (AR48/2012) [2012] ZAKZPHC 42;
[2012] 4 All SA 182
(KZP) (17 July 2012)
the court stated the following at para [16]
regarding the pliability or vulnerability of children to the power of
suggestion or
undue influence:
“
[16]
The evidence of a young child has been said to be unreliable because
of the child’s inexperience, imaginativeness and
suggestibility
to influence. In S v Jackson case, supra, the court dispensed with
the cautionary rule in sexual cases on the ground
that the
application of the cautionary rule to sexual assault cases was based
on irrational and outdated perceptions. Therefore,
it follows that
the state is simply obliged to prove the accused’s guilt beyond
reasonable doubt.
However, a
particular case may call for a cautionary approach, for instance,
where imaginativeness and pliability of a young witness
is a
potential risk”
(my
emphasis).
[39]
When considering and evaluating the contradictions between the
complainant and her mother on the one hand, and the complainant
and
her previous report to the doctor on the other hand, and the absence
of explanations for the said contradictions, I am of the
view that
the complainant’s evidence was unsatisfactory and that the said
contradictions impacted negatively on her reliability
and
credibility.
[40]
Furthermore,
I have already found
that there is a number of improbabilities in the circumstances
surrounding the alleged commission of the rape,
like raping the
complainant whilst the door stayed open, in a yard where there are
tenants who could walk in at any moment, the
opportunity for the
appellant and complainant to stand up, dress etc with the
complainant’s mother virtually inside the house
(having walked
through an open door) etc. In my view, the said
improbabilities
further weaken the credibility and quality of the complainant’s
version.
[41]
Furthermore, I am of the view that the fact that the complainant’s
mother initially confirmed the appellant’s version
that she
influenced the complainant to falsely implicate him did not do the
state’s case any good. In fact, in my view, it
did the state’s
case a lot of harm. No explanation was given as to why the
complainant’s mother initially admitted
such a far-reaching and
game-changing submission when it was put to her under
cross-examination. Furthermore, her subsequent answers
to the
questions from the magistrate on this aspect were even more
worrisome. When viewed against the appellant’s defence
that the
complainant was influenced by her in order to fasely implicate him,
it is a development I cannot ignore. In my view, it
was the most
significant and defining moment of her cross-examination. In the
light thereof, the appellant’s defence that
he did not commit
the alleged rape and that she coached the complainant to falsely
implicate him is not entirely without merit,
and can, therefore, not
be dismissed as not being reasonably possibly true or false beyond
reasonable doubt. I may also add
that
I am of the view that there are no improbabilities inherent in the
appellant’s assertin that the complainant’s
mother
influenced her to falsely implicate him – especially when
viewed against the complainant’s mother’s initial
answer
(of nodding) when the proposition was put to her.
[42]
In my view, the particular circumstances of this case - where the
submission that the complainant’s mother coached her
to falsely
implicate the appellant cannot be dismissed without much ado, call
for a cautionary approach. In applying such caution,
I need to find
some guarantee elsewhere, other than from what falls from the lips of
the complainant, that the complainant’s
evidence is true and
reliable in all material respects.
[43]
I am unable to find such guarantee anywhere outside the complainant
herself. To the contrary, I see the warning signals flashing
all over
the state’s case. Such warning signals began with the state
asking the complainant leading questions on very important
aspects of
the case and culminated in the contradictions in the state’s
case. Although corroboration of the evidence of a
young witness who
is a complainant is not an absolute requirement, I am of the view
that corroboration in the form of medical evidence
or any other form
of worthy corroboration, would have been a welcome tool in the
particular circumstances of this case. See
Cele’s
decision referred to above. There was no form of corroboration of the
complainant’s version on any aspect whatsoever.
[44]
In
Fletcher v S (171/09)
[2009] ZASCA
169
(1 December 2009)
, Tshiqi AJA (as
she then was) writing the unanimous decision of a five-judges bench
stated the following between paragraphs [10]
and [17] as regards the
meaning of corroboration:
“
[10]
In answering this question sight should not be lost of the following
statement by Cloete JA as to the meaning of 'corroboration'
in S v
Gentle: 'The representative of the State submitted on appeal that (I
quote from the heads of argument): "(T)here was
sufficient
corroboration or 'indicators' to support the occurrence of the
rapes
." It must be
emphasised immediately that by corroboration is meant other evidence
which supports the evidence of the complainant,
and which renders the
evidence of the accused less probable, on the issues in dispute
(cf R v W
1949 (3) SA 772
(A) at 778-9). If the evidence of the
complainant differs in significant detail from the evidence of other
State witnesses, the
Court must critically examine the differences
with a view to establishing whether the complainant's evidence is
reliable.
But the fact that the
complainant's evidence accords with the evidence of other State
witnesses on issues not in dispute does not
provide corroboration.
Thus, in the present matter, for
example, evidence that the appellant had sexual intercourse with the
complainant does not provide
corroboration of her version that she
was raped, as the fact of sexual intercourse is common cause. What is
required is credible
evidence which renders the complainant's version
more likely that the sexual intercourse took place without her
consent, and the
appellant's version less likely that it did not.'
[11]
So, what we are looking for are indications on the undisputed
facts which lend support to Bianca's version and at the same time
renders Fletcher's conflicting version so unlikely that it cannot
reasonably possibly be true
…
[15]
Her behaviour immediately after the
incident also gives credence to her version. She asked to be taken to
the police station to
report the rape in her half naked state. It is
highly unlikely she would have gone to two police stations in such an
undignified
state to falsely incriminate two men she had met that
same evening and who did nothing but offer her a lift home. She
persistently
informed the police and the doctor that she had been
raped. Even her physical and emotional state at the time was
consistent with
her version.There is no basis for such an emotional
state if Fletcher's version is accepted, ie that she had completely
relaxed
and was in fact, enjoying herself when they left her with De
Kock. (
S v Hammond
2004
(2) SACR 303
(SCA) para 22). There is therefore no reason to find
that Bianca was not telling the truth ….
[17]
Finally De Kock's behaviour in
the veld gives credence to Bianca's version and is inconsistent with
that of Fletcher.
It is
inexplicable why De Kock would find it necessary to nudge Fletcher
whilst he was straddling Bianca if all he was doing was
to try and
calm her down. Moreover, if she had not been raped it would have been
unnecessary for De Kock to behave as he did thereafter.
The
evidence of Fletcher was therefore correctly rejected by the trial
court
”
(my
emphasis).
[45]
The passages quoted above show that the approach of the SCA on what
corroboration is, means that even if the court accepts
that the
complainant cried, this is no corroboration of her version, as her
crying is not inconsistent with the appellant’s
version that
she cried due to witnessing the argument between him and her mother.
Similarly, the medical evidence of the history
of previous sexual
activity on her part does not corroborate her as no credible evidence
of such history was led, and even if it
had, it would not have been
inconsistent with the appellant’s suspicion that the
complainant, like her friend she once reported
to him, might have
been engaging in sexual intercourse with boys.
[46]
On the other hand, I find that there were no material contradictions
or inconsistencies in the appellant’s version.
[47]
In
S v V
2000
(1) SACR 453
(SCA)
at 455 a-b Zulman
JA said the following:
“
It
is trite that there is no obligation upon an accused person, where
the State bears the onus, to convince the court. If his version
is
reasonably possibly true he is entitled to his acquittal although his
explanation is improbable. A court is not entitled to
convict unless
it is satisfied not only that the explanation is improbable but that
beyond reasonable doubt it is false. It is
permissible to look at the
probabilities of the case to determine whether the accused’s’
version is reasonably true
but one subjectively believes him is not
the test.”
[48]
In
S v Chabalala
Heher JA formulated the principles in
evaluating the evidence of the state and an accused person in a
criminal trial as follows:
“
The
trial court's approach to the case was, however, holistic and in this
it was
undoubtedly right: S v Van Aswegen
2001 (2) SACR
97
(SCA). The correct approach is to weigh up all the elements which
point towards the guilt of the accused against all those which
are
indicative of his innocence, taking proper account of inherent
strengths and weaknesses, probabilities and improbabilities
on both
sides and, having done so, to decide whether the balance weighs so
heavily in favour of the state as to exclude any reasonable
doubt
about the accused's guilt”.
[49]
The state must prove its case by proving each and every element of
the offence beyond reasonable doubt, and there is no onus
on the
appellant to prove his innocence, and where the court is left in
doubt as regards any of the elements of the offence, the
benefit of
such doubt must accrue in favour of the appellant.
[50]
I am of the view that the number of difficulties in the state’s
case that I have alluded to above is such that it fails
to meet the
required level of proof in a criminal case – being proof beyond
reasonable doubt.
[51]
Consequently,
I am of the view that
the state did not discharge the onus of proving beyond reasonable
doubt that the appellant raped the complainant,
and consequently the
appeal should succeed and the conviction accordingly be set aside.
Therefore, there is no need to deal with
the issue of sentence as it
automatically falls off because of the appellant’s acquittal.
[52]
In the premises, I propose the following order:
52.1.
The appeal is upheld.
52.
2.
The conviction and sentence are set aside.
_____________________
I.
MOTLOUNG,  AJ
I
agree and so it is ordered.
________________________
LJ
LEKALE, J
For
appellant: Adv S Makhene
Instructed
by: Bloemfontein Justice Centre
Bloemfontein
For
respondent: Adv WS Sampisi
Instructed
by: Director of Public Prosecutions
Bloemfontein