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[2013] ZAGPPHC 153
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Munyai v S (A598/12) [2013] ZAGPPHC 153 (12 June 2013)
NOT
REPORTABLE
NORTH
GAUTENG HIGH COURT, PRETORIA
CASE:A598/12
DATE:12/06/2013
In
the matter between:
ELIAS THOMAS
MUNYAI
............................................................................
Appellant
and
THE
STATE
...................................................................................................
Respondent
JUDGMENT
MATHOPO
J:
[1]
The principal issue in this appeal is whether the trial court having
decided not to have the complainant take the oath or affirmation
in
terms of
sections 162
and
163
of the
Criminal Procedure Act 51 of
1977
, properly administered the admonition in due compliance with
section 164
and
165
of the Act. Another issue is whether the state
succeeded in proving beyond reasonable doubt that the appellant was
guilty as charged.
[2]
It is necessary to set out a brief narrative of certain facts and
circumstances giving rise to the conviction and sentence.
[3]
On 4 August 2004, the appellant was convicted of rape of his daughter
who was 7 years old at that time of the offence. Upon
conviction and
in terms of
section 51(1)
b of the
Criminal Law Amendment Act 105 of
1997
, the appellant was referred to the High Court for sentencing.
The High Court (per Smit J) sitting on circuit in the Northern
Circuit
District confirmed the conviction on the 15 August 2005. On
the 15 June 2006 he was sentenced to Life Imprisonment, the court
having
found that there were no substantial and compelling
circumstances justifying or warranting the imposition of a lesser
sentence.
[4]
Aggrieved by the conviction and sentence, the appellant applied for
leave to appeal against both conviction and sentence. Shongwe
J
refused leave to appeal. The appellant then approached the Supreme
Court of Appeal on petition and leave to appeal against both
conviction and sentence was granted to this court.
[5]
At the commencement of the trial, the Prosecutor after discussing,
the J88 (medical report) with the defence, read the contents
into the
record. When the trial commenced, the Prosecutor informed the
Magistrate that the complainant was able to testify without
the help
of an intermediary and suggested that her evidence be recorded via a
closed circuit television set. The Magistrate without
proper
investigation accepted the prosecutor’s say-so and proceeded to
admonish/caution the complainant to tell the truth.
It is this
admonishment or caution which principally forms the subject matter of
this appeal.
[6]
To appreciate fully what transpired before the complainant gave
evidence it is necessary that the following exchange between
the
Magistrate and complainant be set out.
Court:
Venus (complainant) how old are you?
Ms
M: I do not know
Court:
Okay V, you must take your hand down so that we can hear what you are
saying, okay? Now today you cannot see us but we can
see you. You are
on television today. You are here to testify against a person by the
name of E Munyai. Do you know E Munyai?
Ms
V: Yes
Court:
Who is he?
Ms
V: He is my father
Court:
Okay and now listen are you already in school?
Ms
V: Yes
Court:
In what grade are you?
MS
v: “B”
Court:
Sub-“B” now V today you must tell us the truth. We do not
want stories or what other people told you to come
and tell me.
We
only want the truth Ms V: Yes
Court:
Okay cautioned to tell the truth
Court:
You do not lie in court hoor – yes
[7]
The appellant’s contention is that the aforegoing questions by
the Magistrate were irrelevant and clearly did not demonstrate
to the
court whether the complainant was able to testify and more
importantly whether she was able to distinguish between the truth
and
falsehood. Relying on the following cases S v Motsiri
(2012) ZASCA 59
and S v Ragubar
(2012) ZASCA 188.
Counsel on behalf of the appellant
submitted that the evidence of the complainant was inadmissible and
unreliable. In essence the
gravamen of the appellant’s
contention is that properly construed the enquiry conducted by the
Magistrate fell short of the
standard required of a judicial officer
when dealing with child witnesses from determining whether they are
able to distinguish
between the truth and falsehold.
[8]
The State conceded that the questioning by the Magistrate was a short
one. On the authority of S vs B
2003 (1) SACR 52
SCA argued that a
formal enquiry into a witness’s ability to understand the oath
or affirmation is unnecessary and that the
court may after forming
the opinion that the witness does not possess the necessary
understanding, admonish the witness to tell
the truth. In essence,
what the state contend is that despite the laconic questions, a
sufficient and proper enquiry was conducted
by the Magistrate to
determine whether the complainant was able to make the necessary
distinction between truth and falsehood and
accordingly competent to
give evidence.
[9]
It is difficult to fathom how a child witness who is unable to tell
her age can make a proper determination between truth and
falsehold.
The child witness at the time of the offence was 7 and 9 when she
testified. She was a child witness with whom care
should have been
given at the outset. It would appear to me that owing to the absence
of an intermediary, she must have been understandably
overwhelmed and
traumatised by the court experience. As soon as she appeared not able
to tell her age, it should have been palpably
clear to the Magistrate
that more was required with regard to the determination whether she
was able to make a distinction between
truth and falsity. No thought
was given to the desirability of receiving her evidence through an
intermediary to protect her. See:
Nedzamba v S (911/2012) [2013] SA
SCA 19 (27 May 2013).
[10] This cursory and superficial
line of questioning by the Magistrate was clearly not enough given
her initial responses before
she was ultimately cautioned. Again the
purported exercise by the Magistrate did not address the competency
of the child witness
to give reliable evidence. This problem was
compounded by the fact that the Magistrate seemed to have relied on
the prosecutor's
say-so that the intermediary was unnecessary. What
is not clear from the record is why the Magistrate dispensed with the
need for
an intermediary. It is desirable that an intermediary be
appointed in all cases involving minor children in order to avoid
further
trauma to the child. The fact that the Magistrate utilized
the services of an interpreter to communicate with the complainant
does
not relieve the Magistrate of the duty to perform his function
properly. The duty to ensure that a witness comprehend what is meant
to speak the truth lies with the presiding officer. The role of the
interpreter is limited to ensuring that questions by the court
to the
child witness are conveyed in a manner that the child can comprehend
and that the answers given by the child witness are
conveyed in a
manner that the court will understand. It is cold comfort that the
complainant was allowed to testify through a closed
circuit
television. See: Director of Public Prosecution Transvaal v Minister
of Justice and Constitutional Development and Others
2009 (2) SACR
130
(cc) at para 165, 167and 168
“
[165]
The practice followed in courts is for the judicial officer to
question the child in order to determine whether the child
understands what it means to speak the truth. As pointed out above,
some of these questions are very theoretical and seek to determine
the child's understanding F of the abstract concepts of truth and
falsehood. The questioning may at times be very confusing and
even
terrifying for a child. The result is that the judicial officer may
be left with the impression that the child does not understand
what
it means to speak the truth and then disqualify the child from giving
evidence. Yet with skilful questioning, G that child
may be able to
convey in his or her own child language, to the presiding officer
that he or she understands what it means to speak
the truth. What the
section requires is not the knowledge of abstract concepts of truth
and falsehood. What the proviso requires
is that the child will speak
the truth. As the High Court observedthe child may not know the
intellectual concepts of truth or
falsehoodbut will understand H what
it means to be required to relate what happened and nothing else.
[167]
When a child, in the court's words, cannot convey the appreciation of
the abstract concepts of truth and falsehood to the
court, the
solution does not lie in allowing every child to testify in court.
The solution lies C in the proper questioning of
children; in
particular, younger children. The purpose of questioning a child is
not to get the child to demonstrate knowledge
of the abstract
concepts of truth and falsehood. The purpose is to determine whether
the child understands what it means to speak
the truth. Here the
manner in which the child is questioned is crucial to D the enquiry.
It is here where the role of an intermediary
becomes vital. The
intermediary will ensure that questions by the court to the child are
conveyed in a manner that the child can
comprehend and that the
answers given by the child are conveyed in a manner that the court
will understand. E
[168]
As pointed out earlier, questioning a child requires a special skill.
Not many judicial officers have this skill, although
there are some
who, over the years and because of their constant contact with child
witnesses, have developed a particular skill
in questioning children.
This illustrates the importance of using intermediaries where young
children are called F upon to testify.
They have particular skills in
questioning and communicating with children. Counsel for the Centre
for Child Law and Chi Id line
was quite correct when, in her reply,
she submitted that everything seems to turn upon the need for
intermediaries when young children
testify in court. Properly trained
intermediaries are key to ensuring the fairness of the trial. Their
integrity and skill will
be vital in G ensuring both that innocent
people are not wrongly convicted and that guilty people are properly
held to account
[11]
As soon as the complainant was not able to tell her age alarm bells
should have rang in the mind of the Magistrate to conduct
a proper
enquiry. Quite clearly given her age of 7 years (at the time of the
offence) and 9 years (when she testified) the complainant
was still
immature and needed proper guidance from the court before she
testified. To demonstrate that the exercise conducted by
the
Magistrate was unhelpful and further glaringly exposed her immaturity
or lack of appreciation between the truth and falsehood,
when asked
by the prosecutor where she was staying during 2002 i.e. the year of
the alleged incident she responded by saying Mashane,
later when
asked the following leading questions she responded as follows:
Prosecutor:
So your mother was staying at Basane and you were staying with your
dad
Ms
V: Yes
Court:
Do you know why they, the mother and the father was no
longer
staying together
Ms
V: I do not know
Court:
Why did you not go ask your mother
Ms
V: It was before that
This
response is not only meaningless but clearly demonstrates the
complainant’s lack of appreciation and understanding of
the
questions asked.
[12]
It does not appear from the record that the Magistrate satisfied
himself that the complainant was sufficiently intelligent
to
distinguish between truth and falsehood. A more detailed
investigation should have been done this is especially so because the
complainant testified two years after the incident. Her powers of
recollection particularly because she is a minor and still immature
cannot be satisfactorily relied absent any proper enquiry. Quite
clearly the Magistrate failed to make the necessary determination
in
terms of
Section 164
and
165
of the
Criminal Procedure Act 51 of
1977
. The capacity to understand the difference between truth and
falsehold is a prerequisite in terms of
Section 164.
At para 165, the
Constitutional Court in Director of Public Prosecution Transvaal v
Minister of Justice and Constitutional Development
and Others
indicated what
Section 164
of the
Criminal Procedure Act requires
is
not the knowledge of abstract concepts of truth and falsehood. What
the provision requires that the child will speak the truth,
the child
may not know the intellectual concepts of truth and falsehood, but
will understand what it means to be required to tell
what happened
and nothing else.
[13]
The Magistrate simply took for granted that the complainant
understood the nature and import of the caution. In doing so ignored
the complainant's immaturity. A proper enquiry to determine that the
child is sufficiently intelligent to testify and also whether
the
child has sufficient mental capacity is necessary for the proper
administration of justice. The Supreme court of Appeal has
cautioned
strongly against the acceptance of the evidence of child witnesses
where a proper enquiry was not conducted in Motsiri
and Ragabar supra
and more recently in Nedzamba v S (911/2012) [2013] SA SCA 19 (27 May
2013).
[14]
The Magistrate misdirected himself when he lost sight of the
evidentiary and statutory requirements regarding child witnesses.
It
is the duty of presiding officers to be more vigilant when accepting
such evidence as reliable and truthful. It is wrong to
ignore the
competency requirements. It is important for the administration of
justice that a child witness is able to give a coherent
and accurate
account of the event that happened and thus able to distinguish
between the truth and falsity. The Magistrate simply
did not address
any of these concerns.
[15]
In the circumstances relying on the complainant’s evidence
without having conducted the necessary enquiry or having
made a
finding regarding her competency as a witness was an irregularity
that led to the irremediable prejudice being suffered
by the
appellant and which resulted in the infringement of his right to a
fair trial. As no reliance can be placed on the evidence
of the
complainant, on this basis alone, the conviction cannot stand.
[16]
As regards the merits the complainant testified that she was staying
with her father at the time of the incident. According
to her
testimony the rapes took place at night and the appellant used to
wake her up for the purpose of sexual intercourse. She
testified that
the appellant removed her panty and penetrated her on more than one
occasion. She made a report to her grandmother
and thereafter to her
mother when she came to fetch her. To the social worker she reported
that she was raped during the day. During
evidence she again stated
that she was raped repeatedly all day.
[17]
The complainant’s mother’s evidence is that the latter
was staying with the grandmother during December 2002 and
she later
established that she was in fact at the appellant’s house. She
stated that the appellant’s mother was present
at the
appellant’s place when she arrived to collect her. The
appellant refused saying that the school had not yet closed
and also
refused to give her the complainant’s clothes. She testified
that the paternal grandmother insisted that she take
the complainant.
After taking her and on the way home, she noticed the complainant
walking with some difficulty and when she confronted
her, she
reported that the appellant had raped her, she then took her to the
Health Care Centre and later Elim Clinic where she
was medically
examined. During cross examination she admitted that she was not on
talking terms with the appellant but stated that
when she went to
collect the complainant they were on talking terms.
[18]
In his testimony the appellant denied that he raped the complainant.
In his evidence in chief he testified that the complainant
never
slept at his house but did come there in the afternoon to change her
clothes. He further testified in cross examination that
on some
occasions when his mother was not at home, the complainant stayed
with his neighbour on Saturday to Monday. Later on testified
that he
was staying with the complainant whenever she was not staying at his
brother’s house because she is his daughter.
During cross
examination, he testified that whenever his mother was not at home,
the complainant would come and spend the night
but at the cooking
hut. The appellant further testified that the complainant was at his
elder brother when the mother arrived.
The grandmother confirmed
this. This evidence was not challenged. No wonder the Magistrate made
a remark when questioning the appellant
“it must be either you
or your elder brother”.
[19]
The appellant’s mother testified in support of the appellant.
She denied that the complainant stayed with the appellant.
When
pressed to explain why her evidence was contradictory to that of the
appellant she responded by saying that maybe the appellant
was
referring to the days when she was away at home or visiting another
village. In essence she disputed the evidence of the complainant
that
the appellant stayed with her and further disputed the complainant’s
evidence that a report was made of her about the
alleged rape.
[20]
The complainant was a single witness and the cautionary rule was
applicable to her evidence. At the time of the incident she
was 7 and
9 years old when she testified. The court merely paid lip service to
the cautionary rule because the Magistrate ignored
several leading
questions and apparent contradictions in her evidence. Quite clearly
the complainant was substantially assisted
by the Prosecutor’s
leading questions which should not have been allowed.
[21]
The appellant assailed the appeal on the grounds that the evidence of
the complainant substantially came from the mouth of
the Prosecutor
as a result of number leading questions which suggested some answers
to the complainant. The following leading questions
were asked by the
prosecutor:
Prosecutor:
Tell me what time was it? Was it in the morning, during the night or
which time was it?
Ms
V: It was at night.
Prosecutor:
So does he use to wake you up?
Ms
V: Yes
Prosecutor:
And were you dressed by then when he wakes you up?
The
Magistrate rightly objected and cautioned the prosecutor from asking
leading questions. Another troubling aspect of the leading
questions
by the Prosecutor is to be found at page 12 of the second line 6:
Prosecutor: ”yes he inserted his penis inside
your vagina what
else did he do” What is remarkable is that nowhere on record
had the complainant testified about the appellant
inserting his penis
into her vagina. The Magistrate did not caution the Prosecutor for
leading such damning and critical evidence
against the appellant. The
record is replete with leading questions asked by the prosecutor
which continued, despite repeated warnings
by the Magistrate. Even
though the appellant was legally represented at the trial, it
remained the duty of the Magistrate to ensure
that the appellant
receives a fair trial.
[22]
The complainant was a single witness. In S v Sauls
1981 (3) SA 172
(A) it was held that when it comes to the consideration of the
credibility of a single witness, the trial judge will weigh the
evidence, consider its merits and demerits and having done so will
decide whether despite the fact that there are shortcomings
or
defects or contradictions in the testimony, he is satisfied that the
truth has been told, furthermore, the exercise of caution
must not be
allowed to displace the exercise of common sense.
[23]
Another disconcerting feature of her evidence which the Magistrate
applying cautionary rule should have found to be unreliable
relates
to her description of the rape itself, when asked to recall or tell
what the appellant was doing, her response was not
only
incomprehensible but unconvincing. This was also accompanied by
another leading question from the Prosecutor. Another illustration
of
her unreliability emerged when she was asked when she started staying
with her father and her response was “I do not know”.
Furthermore when asked where she was staying with her mother when her
mother come to fetch her, her response was “I was staying
at my
mother’s place.” This response indicates a lack of
understanding of the questions. The question to be asked is,
whether
in the light of these questions, can it be said that her evidence is
clear, reliable and satisfactory in all material aspects.
I do not
think so.
[24]
Although I fully accept the difficulties encountered by young
children when giving evidence pertaining to incidents of a sexual
nature. In the present matter the incident occurred in 2002 and the
complainant testified in 2004. The evidence of the complainant
was
not clear and satisfactory in all material respects. The prosecutor
failed to explore the complainant’s version of what
had
occurred and instead suggested answers by way of leading questions in
aspects crucial to the conviction. Her evidence throughout
the trial
indicates that she had serious difficulties understanding the
questions asked with the result gave incomprehensible answers.
This
in my view illustrates the unfortunate difficulty of subjecting a
child witness through the rigours of the trial without assistance
of
the intermediary. That she was to a large extent assisted by the
prosecutor’s relentless leading questions is without
doubt. The
record reflects that on more than one occasion the Magistrate
cautioned the prosecutor from asking leading questions.
In my view
the Magistrate should have disallowed all the leading questions. The
need for caution cannot be ignored and evidentiary
and procedural
rules should be properly applied and adhered to lest the appellant’s
rights to a fair trial are compromised.
[25]
The appellant’s evidence was criticised unduly by the
Magistrate yet the contradictions in the state’s case were
explained and accepted with liberality. The appellant consistently
denied the allegations and proffered possible explanations as
to who
could have committed the offence. It would appear that the Magistrate
treated these explanations glibly. The appellant’s
explanations
were reasonably possibly true and the Magistrate should have afforded
him the benefit of the doubt. The record reflects
that a possibility
existed that the complainant could have been sexually molested by
other people. The Magistrate, when questioning
the appellant made the
following remark “It must be either you or your elder brother”.
Evidently in the mind of the
Magistrate doubt existed as to who could
be the perpetrator. This notwithstanding he proceeded to convict the
appellant.
[26]
I am not satisfied that given the poor quality of the evidence of the
complainant the conviction accounts for all the proven
facts. It
follows that the conviction cannot be sustained and the state did not
establish the guilt of the appellant beyond a reasonable
doubt.
I
therefore make the following order:
1.
The appeal is accordingly upheld;
2.
The conviction and sentence are set aside and substituted with the
following:
•
The
appellant succeeds and the conviction is quashed and the sentence is
set aside.
R MATHOPO J
I
agree ._____________ ,
EM KUBUSHI J
I
agree _________________________________________
P VAN DER BYL AJ
Appearances:
For
the Appellant: Adv JP Marais
Instructed
by
For
the defendant: Adv S MAHOMED
Instructed
by: Office of the Director of Public Prosecutions
Date
of hearing: 8 MAY 2013
Date
of Judgment: 12 June 2013