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[2012] ZAKZPHC 47
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Ndwandwe v S (AR99/12) [2012] ZAKZPHC 47 (6 August 2012)
11
IN THE HIGH COURT OF SOUTH AFRICA,
PIETERMARITZBURG
REPUBLIC OF SOUTH AFRICA
AR99/12
In the matter between:
SIZWE LUCKY NDWANDWE
….......................................................
Appellant
v
STATE
….......................................................................................
Respondent
JUDGMENT
Date of Hearing: 28 June
2012
Date of Judgment: 06
August 2012
D. PILLAY J
[1] This is an appeal against
conviction and sentence in a rape case. The proceedings in the trial
court were riddled with irregularities.
The question is whether they
are sufficiently serious to allow the appeal.
[2] The first irregularity is that the
trial court failed to apply s 170A of the Criminal Procedure Act 51
of 1977 (CPA) which provides:
‘
(1)
Whenever
criminal proceedings are pending before any court and it appears to
such court that it would expose any witness under the
biological or
mental age of eighteen years to undue mental stress or suffering if
he or she testifies at such proceedings, the
court may . . . appoint
a competent person as an intermediary in order to enable such witness
to give his or her evidence through
that intermediary.’
The complainant was 17 years when she
testified. Her sister, the second state witness, was 15 years when
she testified. Neither
the prosecutor nor the magistrate took steps
to secure the evidence of the child witnesses through an
intermediary.
[3] In
Director
of Public Prosecutions, Transvaal v Minister of Justice and
Constitutional Development and Others
2009
(2) SACR 130
(CC);
2009 (4) SA 222
(CC) the Constitutional Court (CC)
acknowledged that testifying in court is a daunting experience for a
child victim in a sexual
offence case. Testifying without the help of
an intermediary exposed the children in this case to undue mental
stress or suffering.
[4] Section 170A is
invoked before the child is subjected to undue stress or suffering.
1
The CC outlined the
procedure to be followed by all courts hearing child witnesses. The
procedure involves an assessment of the
child prior to testifying in
court. If an intermediary is needed the state must arrange for an
intermediary to be present in court.
At the commencement of the trial
the state must apply for the appointment of the intermediary. The CC
urged that this procedure
should ordinarily be followed in all
matters involving child complainants in sexual offences to meet the
objectives of s 170A(1)
of the CPA and s 128(2) of the Constitution
which promotes the best interests of the child to be of paramount
importance.
‘
This
should become a standard preoccupation of all criminal courts dealing
with child complainants in sexual offence cases. To the
extent that
current practice may fall short in this regard proper regard for
constitutional rights of children means that in every
criminal trial
in which a child complainant in a sexual offence case is to testify
the court must enquire into the need for the
appointment of an
intermediary where the state does not raise the issue. If necessary
the presiding officer must initiate an enquiry
into the desirability
of appointing an intermediary’
2
[5] The CC’s judgment, issued on
1 April 2009, should have been fresh in the minds of the learned
magistrate and prosecutor
in September 2009 when this trial
commenced. Clearly, neither s 170A nor the CC’s judgment
featured in the proceedings at
all.
[6] The second irregularity is that
the trial court failed to apply s 153(5) of the CPA which provides:
‘
Where
a witness at criminal proceedings before any court is under the age
of eighteen years, the court may direct that no person,
other than
such witness and his parent or guardian or a person
in
loco parentis
,
shall be present at such proceedings, unless such person's presence
is necessary in connection with such proceedings or is authorized
by
the court.’
Because a court room is generally not
a place for children, sub-sec 6 further empowers a court to direct
that no person under the
age of 18 years shall be present at criminal
proceedings unless he is a witness and is actually giving evidence in
such proceedings.
[7] At the commencement of the
proceedings the learned magistrate noted that the complainant was 17
years old and asked that the
court be cleared of all but the
accused’s family, the complainant and the second child witness.
The learned magistrate muddled
the requirements for
in camera
proceedings. Instead of affording the child witnesses the comfort and
support of their family when they testified, he aggravated
their
mental stress and suffering already accompanying the daunting
atmosphere of a court by exposing them to not only the accused
but
also his family to the exclusion of their own.
[8] The third irregularity is that the
learned magistrate failed to determine whether the witnesses were
competent to testify. Section
164(1) of the CPA provides:
‘
Any
person, who is found not to understand the nature and import of the
oath or the affirmation, may be admitted to give evidence
in criminal
proceedings without taking the oath or making the affirmation:
Provided that such person shall, in lieu of the oath
or affirmation,
be admonished by the presiding judge or judicial officer to speak the
truth.’
[9] In
S
v B
3
the SCA held in
relation to the evidence of a complainant of 13 years in a rape case:
‘
(I)n
considering which powers given to the Court
a
quo
in terms of s 52(3)
(e)
should have been exercised, the evidence given by the complainant was
of material importance and it could not be ignored. Her evidence
was
inadmissible because the possibility existed that she did understand
the nature and import of the oath or the affirmation,
in which case
she should have sworn or affirmed that she would tell the truth. In
the event that she did not understand it, the
admonishment she
received was sufficient to make her evidence admissible.
Understanding on the part of the complainant of the nature
and import
of the oath or the affirmation could hardly have made the evidence
she gave less reliable. Accordingly, the objection
to the
admissibility of her evidence was of a technical nature and was
caused by an error made by the magistrate. In the light
of the
aforegoing, the Court
a
quo
should have given consideration to whether it was a case where,
without infringing upon the accused's right to a fair trial, the
deficiency could not have been corrected and in the interests of
justice should have been corrected. The correction could have
occurred by the setting aside of the conviction, the hearing of
further evidence, either by the Court
a
quo
or by the regional court which convicted the accused. The evidence
could have consisted in the confirmation by the complainant
of her
previous evidence after there had been compliance with the provisions
of
ss 162
,
163
and
164
of the
Criminal Procedure Act, or
a repetition
of such evidence and cross-examination of the complainant insofar as
it was necessary to comply with the constitutional
requirements of a
fair hearing. In this regard it was important to keep in mind that
justice did not only require that an innocent
person not be
incorrectly convicted but also that a person who committed a crime
was properly punished.’
In so clarifying the approach to
s 164
(1) the SCA pointed out that if
s 164
(1) is not complied with, the
prosecution can be still be salvaged provided the procedural
formalities are cured.
[10] In
S
v Sikhipha
4
the SCA held that
there was no substance in the complaint that the regional magistrate
did not enquire whether the complainant and
her brother understood
the oath that was administered to them. The court pointed out that
s
164
of the CPA permits a presiding officer to dispense with taking an
oath where it appears that a child does not understand the nature
and
import of the oath. In such circumstances the presiding officer has
merely to form an opinion as to whether the witness understood
the
meaning of the oath. In that case where the oath was administered to
both the complainant of 14 years and her brother whose
age was not
apparent from the record, the SCA held:
‘
There
is no requirement that the trial court must formally enquire whether
a witness understands the oath, nor that the presiding
officer must
record that fact.’
5
[11] In that case,
there was nothing at all in the evidence to suggest that the
complainant or her brother was ignorant of the import
of the oath.
6
Similarly, the SCA
upheld an appeal from this division in
Director
of Public Prosecutions, KwaZulu-Natal v Mekka
7
in which it
confirmed that a formal enquiry is not required, it being sufficient
for the trial court to satisfy itself that the
complainant understood
the difference between truth and falsehood and had warned her to tell
the truth.
[12] Mr Butler
referred to
S
v Malinga
8
in which the full
bench of this division set aside a conviction for the rape of a girl
of nine years, after finding that there must
be a two stage enquiry
of establishing first, whether the witness understands the nature and
import of the oath and second, whether
she knows what it means to
speak the truth.
9
Counsel in that
case conceded that no such enquiry was held.
Malinga
has been overtaken
by
S
v B
above.
[13] Another case
Mr Butler relied on is
S
v Swartz
10
in which the Cape
High Court found that in the case of a witness of 7 years, it was not
sufficient for the child to give a coherent
and accurate account but
that she should be able to distinguish between truth and falsity.
11
Swartz
is distinguishable
on the basis of the huge age gap between the complainant of 7 years
in that case and 17 years in this case.
[14] In this case
the child witnesses were sworn in without the presiding officer first
ascertaining their competence to testify.
Nor did he admonish them to
speak the truth. A witness who is unable to distinguish between truth
and falsehood is incompetent.
12
Swearing in the
child witnesses is no assurance that they understand the oath and
their obligation to speak the truth. In particular
cases a formal
enquiry into a witness’s ability to understand the oath or
affirmation though desirable,
13
is dispensable.
14
This is not such a
case. In this case credibility was tenuously balanced between single
witnesses on each side. Consequently, compliance
with the procedural
hoops that check for veracity was vital for determining credibility.
[15] The fourth irregularity is that
the trial court failed to comply with s 63 of the Child Justice Act
75 of 2009 (CJA) which
provides:
‘
(4)
A
child justice court must, during the proceedings, ensure that the
best interests of the child are upheld, and to this end-
(b)
must, during all stages of the trial, especially during
cross-examination of a child, ensure that the proceedings are fair
and not
unduly hostile and are appropriate to the age and
understanding of the child.
(5)
No person may be present at any sitting of a child justice court,
unless his or her presence is necessary in connection with
the
proceedings of the child justice court or the presiding officer has
granted him or her permission to be present.’
A child justice court is defined as:
‘
any
court provided for in the
Criminal Procedure Act, dealing
with the
bail application, plea, trial or sentencing of a child
’
15
Although this definition does not
cater specifically for child witnesses but child accused, there is no
good reason why child witnesses
should not similarly be afforded the
protection of
s 63
above of the CJA.
[16] The fifth irregularity is the
manner in which the complainant was cross-examined. Defence counsel
had to be cautioned on at
least two occasions that his questioning
was unfair. He continued to ask long, rambling, multiple questions
which even the interpreter
sometimes had difficulty in understanding.
[17] Furthermore, the proceedings were
conducted by an all-male team of magistrate, prosecutor and defence
attorney. It is not clear
from the record whether the interpreter was
also a male. If he was, this would have aggravated the child
witnesses’ ability
in communicating effectively. Rape victims,
adults and children alike have great difficulty in expressing their
experiences dispassionately
and coherently. The role of the
interpreter to communicate empathetically in such cases is vital. In
S v S
1995
(1) SACR 50
(ZS) the Zimbabwe court's criticism was
that the trial court personnel were all male. This
despite the fact that they
knew well in advance that a female
juvenile would be appearing in that court on that day as a
complainant in a serious rape case.
Insightfully, the court observed:
‘
It
surely would not have been impossible to arrange for a female
prosecutor or magistrate to officiate or to have a female presence
of
some sort. …But surely those responsible for
physically allocating cases and courts must be aware of the
embarrassment likely to be felt by a little girl when relating the
detailed descriptions of the perpetration of a rape required
by a
court of law. Such embarrassment can only be exacerbated when
the evidence must be given before an exclusively male
audience
because:
(1) the
discussion of intimate sexual matters in the presence of members of
the opposite sex is normally taboo;
(2) the
absence of a female listener means that a female witness who has been
sexually abused lacks any substantial
sympathetic support. No
male person can possibly understand the feelings of a female victim.
It is thought probable
that even very young complainants feel this
almost instinctively; and
(3) it
is likely that a woman or girl who has been recently or badly abused
will associate, if only subconsciously,
all males with her assailant.
An all-male audience is,
therefore, unlikely to encourage a complainant to give full and
objective evidence.’
Although this is a Zimbabwean court
decision, its observations about the behaviour and psychology of
female and child victims of
sexual offences have universal appeal.
[18] The sixth irregularity arose when
the learned magistrate failed to invite questions arising from his
questioning of the appellant
and her mother. His questions elicited
highly relevant answers from both these witnesses. In response to the
court’s question
as to what caused her to delay her arrival
home at about 9:30 pm she replied:
‘
I
was walking slowly on the way. It was uncomfortable to walk.’
Asked whether she looked at her watch
or estimated the time to be 9.30 pm she replied
‘
I
saw the watch. I saw on the phone.
Whose
phone?
My
mother’s phone.’ . . .
[19] The alleged rape occurred at
about 4 or 5pm about 500 to 800 meters from the complainant’s
home. Whether the complainant
was being truthful about reasons for
her returning home at that time and whether indeed it was 9.30pm were
critical to determining
whether she had in fact been raped or whether
she had consented to sexual intercourse with the appellant. Further
questioning by
both sides was material.
[20] As for the mother’s
evidence, the mother had testified in chief that there had been a
wedding but not on 25 December
2008. In cross-examination she
testified that she could not remember when the wedding was. The court
questioned her as follows:
‘
On
the 25
th
did
you go anywhere? . . .
No
I was at home I did not go anywhere.
Ja
but that is the day on which H said they went to a wedding. . .
The
25
th
?
Ja
then they came back. You sent them to buy the chicken. . .
Which
means I don’t know when was the wedding.’
[21] The complainant also testified
that she saw the appellant for the first time that afternoon. In
contrast, her sister said that
they were with him in the morning at
the wedding. This contradiction cannot be satisfactorily resolved
without further questioning
by both parties.
[22] The mother’s evidence
contradicted the evidence of the two child witnesses. The failure to
invite questions arising from
questions the court posed, in
particular, the questions cited above, are material irregularities
contaminating the entire proceedings.
[23] Finally, the trial court failed
to comply with s 28(2) of the Constitution. By vitiating the
proceedings with the litany of
irregularities above the trial court
failed to promote the best interests of the child witnesses as
paramount. The primacy of the
rights of children prevails
irrespective of whether the child witness is a complainant or an
accused. Procedural fairness applies
as much to the child
complainants as witnesses as it does to the child accused to ensure
justice.
[24] Turning to the facts, the
complainant had testified that she and her younger sister were sent
to buy chicken from a home about
3 or 4 kilometres away from their
own home. They saw the appellant at the premises where the chicken
was sold. He tried to prevent
the complainant from entering the shop.
She protested. He allowed her to buy the chicken. As she and her
sister started walking
back home the appellant joined them. Her
sister walked ahead. The appellant continued to propose love to the
complainant. She protested
and resisted his advances. He pulled her
hand. After a while her sister relieved her of carrying the chicken
and headed home alone.
The appellant forced the complainant under
threat of a knife into a bush where he raped her twice. The
appellant’s defence
was that he had intercourse with the
complainant with her consent. He had proposed love to her in June of
that year. They met occasionally
at the water tap. He had arranged to
meet her on the 25
th
of December at the station near the
chicken vendor. However, he found her as she came to buy the chicken.
They had seen each other
at a wedding that morning.
[25] Where the truth lies between
these versions I cannot divine with the proceedings being so
corrosively contaminated by the procedural
defects. Even if
non-compliance with ss 170A and 153(5) can be waived as rights
protecting the complainant and therefore not prejudicial
to the
appellant, and even if non-compliance with s 164(1) is a formal
procedural defect that can be remedied, the prejudice for
the
appellant arising from the learned magistrate’s omission to
invite questions arising from his questions is inescapable.
Unravelling the contradictions that arose from the answers to his
questions goes to the root of determining credibility.
[26] This miscarriage of justice
prejudices both the complainant and the appellant. The fact that the
appellant has not been found
guilty or innocent leaves a cloud over
the credibility of the complainant and the appellant. It will forever
remain a cloud of
uncertainty for both sides unless it is cleared up
in some way, be it mediation, a retrial or some other process. If the
complainant
was truthful she will remember every Christmas as the day
she lost her virginity to a rapist. If the appellant was truthful he
will remember every Christmas as the day on which he was falsely
charged for raping the complainant twice. If she had been raped
then
the fact that the appellant has not been found guilty could obstruct
her recovery which, for most rape victims, is slow if
not impossible.
[27] On the one hand, to refer the
matter for retrial would subject her to the secondary trauma again.
On the other hand, she may
want to re-testify to vindicate herself. A
retrial might also violate the appellant’s right to a speedy
trial and possibly
the protection against double jeopardy. The
prospects of success for a retrial are a matter within the discretion
of the prosecution
after consulting the complainant and her
witnesses.
[28] At the hearing we agreed that the
appeal should succeed and the conviction and sentence should be set
aside. Without giving
reasons we granted an order in those terms. I
have since set out my reasons above. I propose the following further
order:
The prosecution shall serve a copy of
this judgment on the magistrate and the prosecutor who prevailed at
the trial court.
_____________
D. Pillay J
_____________
MBATHA
J
I agree.
It is so ordered.
Counsel for the
Appellant:
Mr
J. Butler
Instructed
by:
The Justice Centre
Pietermaritzburg
Counsel for the
Respondent:
Mr N. Dunywa
Instructed
by: Director
of Public
Prosecutions
Pietermaritzburg
1
Para
93-109
2
Para
111-112
3
2003
(1) SACR 52
(SCA) at 56 E-G (headnote)
4
2006
(2) SACR 439
(SCA) at para 13
5
S
v Chalale
2004 (2) SACR 264
(W) at
para 3
6
at
para 14 page 445 A
7
2003
(2) SACR 1
(SCA) para 12 - 15
8
2002
(1) SACR 615
(N)
9
page
617 D-F
10
2009
(1) SACR 452
(C)
11
Para
7
12
S
v V
1998
(2) SACR 651
(C);
Henderson
v S
1997
(1) ALL SA 594
(C);
S
v
N
1996
(2) SACR 225 (C)
13
Du
Toit,
Criminal Procedure Act, s
164 22-20
14
S
v Kondile 2003
(2) SACR 221 (CK)
15
Child
Justice Act 75 of 2008
definition