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[2012] ZAGPPHC 68
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C.T v S (A533/2011) [2012] ZAGPPHC 68; 2012 (2) SACR 517 (GNP) (24 February 2012)
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REPORTABLE
IN
THE HIGH COURT OF NORTH GAUTENG, PRETORIA
REPUBLIC
OF SOUTH AFRICA
CASE NO: A533/2011
DATE:24/02/2012
In
the matter between:
CT
.................................................................................
Appellant
and
THE
STATE
..............................................................................................................
Respondent
JUDGMENT
Ismail
J:
[1
] The appellant was convicted of rape where the victim was below the
age of 16 years. The complainant in the matter was his 9
year old
daughter.
[2]
He was convicted and the trial court found that substantial and
compelling circumstances existed which permitted it to deviate
from
the prescribed minimum sentence of life imprisonment and in its place
imposed a sentence of 20 years imprisonment.
[3]
The appellant was granted leave to appeal to this court in respect of
conviction, however leave was refused on the aspect of
sentence.
[4]
A petition was thereafter lodged where leave to appeal in respect of
sentence was also sought. The petition was unsuccessful.
[5]
The appellant seeks to review the proceedings and submits that the
proceedings be set aside on the basis that there was not
a fair trial
in that the complainant who was 9 years old did not testify in terms
of
section 170A
of the
Criminal Procedure Act 51 of 1977
. The
appellant relies upon the decision of Director of Public
Prosecutions, Transvaal v Minister for Justice and Constitutional
Development and Others,
2009 (2) SACR 130.particularly
paragraphs
[112] and [113] of the judgment.
[6]
At paragraph [111] the of the judgment referred to above, the court
stated :
"
[111] ....At the commencement of the trial the State must arrange for
an intermediary to be present in court when the accused
goes on
trial. At the commencement of the trial,
the State must then apply
under the subsection for the appointment of an intermediary. Indeed,
this the procedure that was followed
in the Mokoena
matter.................. "
[112]
This is the procedure that should ordinarily be followed in all
matters involving child complainants in sexual offence cases.
If this
procedure were to be followed as matters of practice, this would
ensure that the objectives of both the subsection and
s 28(2)
are
achieved. To the extent that current practice may fall short in this
regard, proper regard for constitutional rights of children
mean that
in every criminal trial in which a child complainant in a sexual
offence case is to testify, the court must enquire into
the
appointment of an intermediary where the State does not raise the
issue. If necessary, the presiding judicial officer must
initiate an
enquiry into the desirability of appointing an intermediary.
[113]
what must be stressed here are two points already made: first, that
the provisions of
ss 170A(1)
and
170A
(3) were enacted to protect the
child from the stress and trauma that may arise from testifying in
court. The second is that
s28
(2) is an injunction to courts to apply
the principle that the best interest of the child are of paramount
importance in all matters
concerning the child. It is incumbent upon
all those who responsible for the administration of justice to apply
the principles
of our criminal law and criminal procedure so as to
protect child complainants in sexual offence cases from secondary
trauma that
may arise from testifying in court. Judicial officers are
therefore obliged to apply the best-interest principle by considering
how the child's right and interest are, or will be affected by
allowing the child complainant in a sexual offence case to testifying
without the aid of the intermediary. It follows from this, therefore,
that where the prosecutors does not raise the matter, the
judicial
officer must, of his or her accord, raise the need for an
intermediary to assist the child complainant in a sexual offences
case in giving his or her testimony."
[7]
During the trial the victim gave evidence by means of CCTV
proceedings in terms of
s 158
and an interpreter was used. No
intermediary was used during the proceedings. It was submitted on
behalf of the appellant that
the prosecution had a social workers
report which recommended that the complainant testify through an
intermediary and notwithstanding
the recommendation to that effect it
was not done. This failure, coupled with the magistrate not complying
with what the constitutional
court recommended in the passages
referred to supra, suggest that a fair trial procedure was not
followed.
[8]
It is clear from the record that the magistrate did not raise the
issue that the victim should testify through an intermediary
as
recommended by the Constitutional court.
[9]
The question which needs to be answered is whether the irregularity
rendered the trial unfair and concomitantly whether the
conviction
should be set aside. In S v May
2005 (2) SACR 331
(SCA) at paragraph
[7] stated:
*
What needs to be stressed immediately is that the failure by a
presiding judicial officer to inform an unrepresented accused of
his
right to legal representation, if found to an irregularity, does not
per se result in an unfair trial necessitating the setting
aside of
the conviction on appeal. In addition it must be shown that the
conviction has been tainted by irregularity- that the
appellant has
been prejudiced."
[10]
The fact that there was a failure to adhere to the child's evidence
being relayed through an intermediary on its own does not
render the
trial unfair. The prosecution in its heads of argument raised the
issue of prejudice. In the instant matter the question
to be answered
is what prejudice was there to the appellant in that the victim did
not testify as in terms of the Constitutional
court's ruling. In my
view there could be no prejudice-to the appellant.
[11
] Mohamed CJ in S v Shiunga and Another
1997 (2) SACR 470
at 484
stated that:
"Essentially
the question that one is asking in respect of constitutional and
non-constitutional irregularities is whether
the verdict has been
tainted by such irregularity"
[12]
In Key v Attorney-General, Cape Provincial Division, and another
[1996] ZACC 25
;
1996
(2) SACR 113
(CC) at paragraph
[13]
Kriegler J stated:
In
any democratic criminal justice system there is a tension between, on
the one hand the public interest in bringing criminals
to book and,
on the other, the equally great public interest in ensuring that
justice is manifestly done to all... what the Constitution
demands is
that the accused be given a fair trial. Ultimately, as was held in
Ferreira v Levin, fairness is an issue which has
to be decided upon
the facts of each case, and the trial Judge is the person best placed
to take that decision. At times fairness
might require that evidence
unconstitutionally obtained be excluded. But will also be times when
fairness will require that evidence,
albeit obtained
unconstitutionally, nevertheless be admitted.."
[13]
Accordingly I am of the view that the question review of the
proceedings have no merit, and that the review proceedings on
this
score, namely that an intermediary was not used, cannot be sustained
and the review should be dismissed.
[14]
Apart from the review referred to above the appellant also appealed
against the conviction on several grounds.
[15]
On the merits the appellant denied that he raped his daughter. The
appellant
when he testified stated that he accepted that the child was raped
however, he disputed that he was the perpetrator of
the crime. His
version was that because he and his wife had just been divorced and
the settlement agreement reflected that the
joint estate should be
divided. His wife orchestrated that the child incriminated him so
that he would be incarcerated and she
would thereby obtain the home.
The trial court in its judgment dealt with this aspect of the
appellant's version and it in my view
correctly rejected it as not
being reasonably possibly true and found that it was false beyond
reasonable doubt.
[16]
It is true that there was confusion in the evidence of the victim and
the evidence of the victim's mother regarding the date
of the
offence. Reliance regarding the date of the offence can be placed on
the evidence of the mother, as she gave a clear version
of the date.
The child was obviously very young, traumatized and frightened and
this must have led to the confusion of the date.
[17]
Nurse Maluleke testified that the discharge and redness to the
victim's vagina could have been caused by an infection. Her
evidence
in this regard merely indicated that the symptoms of the redness and
whitish discharge could have been as a result of
an infection. I did
not understand her evidence to imply that it was indeed the case.
In
fact she was of the view that the injuries were consistent with
penetration. The victim testified that her father inserted his
penis
in her vagina. The appellant himself was of the view that the child
was raped by some other party.
[18]
The sole issue in this matter which needed to be determined was
whether the state had proved that the appellant was responsible
or
culpable of the crime. In other words the issue of identity of the
perpetrator had to be proved beyond reasonable doubt. This
aspect was
also dealt with by the trial court and it is not necessary for me to
repeat the courts views apart endorsing my agreement
of the court's
reasoning in that regard.
[19]
For these reasons I would recommend that the appeal on conviction
should also be dismissed, as the conviction in my view was
both sound
and proved beyond reasonable doubt.
Ismail
J
I
agree
Khumalo
AJ
Appearances:
For
the Appellant: Mr J O van Schalkwyk, BDK Attorneys, Johannesburg
For
the respondent: Adv M M Mashuga, Director of Public Prosecutions,
Pretoria.
Date
of Appeal: 24 February 2012