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[2011] ZAGPPHC 217
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S v S.I.N (A1029/11, PSH 122/11) [2011] ZAGPPHC 217; 2012 (2) SACR 317 (GNP) (14 December 2011)
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REPORTABLE
IN
THE NORTH GAUTENG HlGH COURT,
PRETORIA
[REPUBLIC OF SOUTH AFRICA]
CASE:A1029/11
CASE
NO.: PSH 122/11
DATE:14/12/2011
In
the matter between
THE
STATE
and
S
I N
SPECIAL
REVIEW IN TERMS OF SECTION 304 A OF THE
CRIMINAL PROCEDURE ACT 51 OF
1977
REVIEW
JUDGMENT
MOTHLE
J:
[1]
Before me is a matter that is been sent to the High Court on special
review by the Magistrate Court district Ermelo, held at
Piet Retief.
[2]
Mr N (the accused) aged 15 is charged with the crime of rape for
which he has pleaded not guilty. During the trial the State
presented
witnesses who by their age are minors. One of the witnesses, the
complainant in the case, is also a minor of 14 years.
[3]
In hearing the evidence of the minors, the Court, at the request of
the State Prosecutor, and acting in terms of Section 170A
of the
Criminal Procedure Act 51 of 1977 (CPA), appointed one Winile
Perseverance Mhlanga (Mhlanga) as an intermediary. Her role
as
intermediary was basically to assist in and facilitate communication
between the minor witnesses including the complainant,
on the one
side and the Court on the other side.
[4]
At the end of the testimony of the complainant, the State Prosecutor
intended to call additional witnesses who are also minors
and happen
not to be at Court on that day. The trial was postponed to enable the
State to make available those witnesses. When
the trial resumed on
the date to which it was postponed, the prosecution disclosed to the
presiding officer that it has come to
his attention that the
intermediary who had been used up to that point in the trial, did not
have the required qualifications of
intermediaries as proclaimed by
the Minister in the Government Gazette. The Court noted that at the
end of the proceedings the
matter will be referred to the High Court
for special review, for the latter to determine and decide whether
the use of Mhlanga
as intermediary has or has not affected the
conduct of the proceedings and what should be the fate of these
proceedings. The trial
proceeded with the services of Mhlanga as
intermediary.
[5]
Section 170A of the CPA provides thus:
"(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 18 years to undue mental stress or
suffering if he or she testifies as such proceedings,
the Court may,
subject to Subsection (4), appoint a competent person as an
intermediary in order to enable such witness to give
his/her evidence
through that intermediary.
[6]
Subsection (4)(a) provides thus:
"the
Minister may by notice in the gazette determine the persons or the
category or class of persons who are competent to be
appointed as
intermediaries"
[7]
Acting in terms of this subsection, and in July 1993 the Minister has
promulgated categories of persons who can be appointed
as
intermediaries. That promulgation was amended in February 1997 as
well as July 2001.
[8]
In terms of Government Notice No. R1374 of 30 July 1993 published in
Government Gazette No. 15024 of 30 July 1993, the Minister
determined
the classes of persons who are competent to be appointed as
intermediaries. These classes include medical practitioners,
family
councillors who are appointed as such under Section 3 of the
Mediation in Certain Divorce Matters Act 24 of 1987, child
care
workers who have successfully completed a 2 year course in Child and
Youth Care approved by National Association of Child
Care Workers and
who have 4 years experience in child care, social workers with 2
years experience, teachers who are classified
in qualification
category c-g and psychologists who are registered as clinical
educational or counselling psychologists.
[9]
The Government Notice R360 published in the Government Gazette No.
17822 of 28 February 1997, extended the class of educators
to include
any educator who has 4 years experience in teaching and who has not
at any stage for whatever reason being suspended
or dismissed from
service in teaching. A further amendment was made in Government
Notice R597 published in the Government Gazette
No. 22435 of 2 July
2001, in which the Minister qualified the various classes or
categories of persons to include the following:
' 'Paragraph (d)
Child Care Workers who have successfully completed a 2 year course in
Child and Youth Care approved by the National
Association of Child
Care Workers and who have 2 years experience in child care.
Paragraph
(e)(i) Social Workers who are registered as such under Section 17 of
the Social Service Professions Act 1978, and who
have 2 years
experience in Social Work and
(ii)
persons who obtained a Masters Degree in Social Work and who have 2
years experience in Social Work. "
[10]
The Curriculum Vitae of Miss Mhlanga shows that she has a good level
of language proficiency in English, IsiZulu and IsiXhosa.
She also
took the language Afrikaans for her Senior Certificate which she
passed in 2001 at Piet Retief High School. In 2006 she
completed her
Bachelor of Social Sciences Degree at the University of Fort Hare.
She also successfully completed a Theoretical
Course in HIV/Aids Care
and Counselling for which she studied for 6 months with the
University of South Africa. She attained a
certificate in Short
Course in Managing the Employment process with centre for Business
Management University of South Africa.
This is a 3 months course.
Last year in October 2010 she completed a course and was awarded a
certificate in "Introducing
the Child Witness". This course
is offered by the Institute for Child Witness Research and Training.
[11]
Mhlanga was appointed intermediary at level 7 on 1 January 2011 by
the Department of Justice and Constitutional Development.
Prior to
that, between 2005 and 2006 she worked for Mondi Packaging SA as
Human Resource Trainee and joined the Department of Justice
between
February 2007 and December 2009 as Senior Administration Clerk level
4. In that capacity she dealt with issues of maintenance
and domestic
violence. Since the 25 January 2011 she is registered by the South
African Council for Social Services Professions.
She is presently
registered with the University of South Africa for a National Diploma
in the field of Marriage Guidance Basic
Counselling Skills and Social
Welfare Law.
[12]
Though she has a Bachelor of Social Work degree, and is presently
registered with the South African Council for Social Services
Professions, Mhlanga does not have the two years experience in Social
Work as required by paragraph (e)(i) of Government Notice
22435 of 2
July 2001 nor a qualification of a two year course in Child and Youth
Care approved by the National Association of Child
Care Workers, as
contemplated in paragraph (d) of the same Government Notice. Her
qualifications falls short of the requirement
as stated in the
Government Notice.
[13]
The question before me now is whether the use of Mhlanga's services
as an intermediary, whose qualifications falls short of
the
requirements published in the Government Gazette, has vitiated the
proceedings.
[14]
Section 170A of CPA provides that a judicial officer presiding over a
trial where minors, in particular a complainant minor
is to testify,
may appoint an intermediary. In doing so, the Court has to satisfy
itself that the child, if called to testify in
open court, would be
exposed to undue mental stress and suffering. See in this regard S v
F
1999 (1) SACR 571
(c).
[15]
Ngcobo J (as he then was) in Director of Public Prosecutions v
Minister of Justice and Constitutional Development
2009 (4)
SA
222
(CC) at page 265 paragraph 111, had this to say:
"what
the subsection (subsection (1) of section 17 OA of the CPA)
contemplates is that a child will be assessed prior to testifying
in
court in order to determine whether the services of an intermediary
should be used. If the assessment reveals that the services
of an
intermediary are needed, then 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.
"
[16]
If the assessment of the child's fitness to testify in open court has
been conducted by an expert such as Social Worker or
Psychiatrist,
the prosecution must make the evidence of such expert available to
the Court in order to assist the Court to exercise
its discretion
correctly. The Court in DPP v Minister of Justice and Constitutional
Development supra stated further as follows
on in paragraph 128:
"these
subsections contemplate that in all cases of sexual offences
involving a child complainant, the Court will enquire into
the
desirability or otherwise of appointing an intermediary. This enquiry
must be conducted with due regard to the principle that
the child's
best interest are of paramount importance in criminal proceedings
concerning a sexual offence against the child. "
[17]
The Constitutional Court further described the object of section 170A
(1) on page 261 paragraph 96 of the Judgment by Ngcobo
J as follows:
"its
object is to reduce to the minimum the degree of stress and create an
atmosphere that is conducive for a child to speak
freely about the
events relating to the offence committed against him/her. The
provisions of an intermediary is intended to create
this atmosphere.
The child conveys his/her experiences to a person skilled in dealing
with children. This person knows how to communicate
with a child and
to do so in a manner that is neither intimidating nor embarrassing to
the child. But at the same time, this person
is able to communicate
what the child has conveyed to him or her to the adults in Court. In
short, this person acts as a link to
bridge the communication gap
between the child and the Court. "
[
18] The obj ect of Section 170A (1) was found to be consistent with
the provisions of Section 28 of the Constitution of the Republic
of
South Africa Act, 1996.
[19]
In referring this matter for review, the Magistrate had this to say
about Mhlanga as an intermediary:
"Me.
W. P. Mhlanga is met ingang van 1 January 2011 deur die Department
van Justisie, Streekkantoor in Mpumalanga aangestel
as permanente
tussenganger te Piet Relief.
Sy
is destyds ingesweer as tussenganger. Ek kan uiteraard nie onthou wat
betreffende haar kwalifikasies voorgehou is nie. Ondertussen
werk sy
al 'n geruime tyd as tussenganger in die Streekhof te Piet Retief. Ek
moet ook meld dat sy uiters bekwaam is en die werk
wat my betref met
onderskeiding verrig.
Dit
het egter ondertussen onder die hoofaanklaer te Witbank se aandag
gekom dat sy waarskynlik nie kwalifiseer ingevolge die bepalings
van
die relevante Staatskoerant om as tussengnger op te tree nie. "
[20]
From her curriculum vitae however it is clear that she did not have
the requisite 2 years experience as a registered Social
Worker
alternatively a Masters Degree with 2 years experience. She also does
not have the required certificate in Child Care, although
she
obtained a certificate for successfully completing a course
"Introducing the Child Witness" with the institute for
Child Witness Research and Training. It is not clear for how long was
this course and what its content entailed.
[21]
The fact that she does not have the required two years experience,
her appointment as an intermediary does nor meet with the
requirements of the regulation as published in the Gazette.
[22]
A full bench of the Cape Provincial Division sitting on review in the
matter of State v Bongani
2001 (1) SACR 670
(CPD) was seized with the
problem where an intermediary appointed by the Court was a retired
educator. After examining the definition
of educators, the Court
concluded that the intermediary so appointed was not qualified, as
the class of intermediaries educators
did not include retired
educators.
[23]
Conradie J, delivering the judgment for the Court stated the
following in obiter:
"whether
or not proceedings in a trial in which a non competent intermediary
has been used will be invalid, would depend on
the circumstances. In
our days we turn to ask whether an accused has had a fair trial.
Formally, the question was more often asked
whether an irregularity
in the proceedings was sufficiently serious to have vitiated them.
The answer to this question depended
on whether or not the accused
had been prejudiced.... No conviction or sentence is to be reversed
or altered on appeal as a result
of any irregularity of or defect in
the record of proceedings unless it appears that a failure of justice
has resulted from such
irregularity or defect. "
[24]
The decision in State v Bongani supra, was handed down on 13 March
2001. In the same year, Parliament, through the Criminal
Law
Amendment Act 17 of 2001, added subsections 5 and 6 to Section 170 A
of the CPA.
[25]
Subsection (5)(a) and (b) of Section 170A of the CPA provides as
follows:
"(5)(ct)
no oath, affirmation or admonition which has been administered
through an intermediary in terms of Section 165 shall
be invalid and
no evidence which has been presented through an intermediary shall be
inadmissible solely on account of the fact
that such intermediary was
not competent to be appointed as an intermediary in terms of a
regulation referred to in Subsection
(4)(a), at a time when such
oath, affirmation or admonition was administered or such evidence was
presented.
(b)
if in any proceedings it appears to a Court that
an
oath, affirmation or admonition was administered or that evidence is
being presented through an intermediary who was appointed
in good
faith but, at the time of such appointment, was not qualified to be
appointed as an intermediary in terms of a regulation
referred to in
Subsection (4) (a), the Court must make a finding as to the validity
of that oath, affirmation or admonition or
the admissibility of that
evidence, as the case may be, with due regard to;-
(i)
the reason why the intermediary concerned was not qualified to be
appointed as an intermediary, and the likelihood that the
reason
concerned will affect the reliability of the evidence so presented
adversely;
(ii)
the mental stress or suffering which the witness, in respect of whom
that intermediary was appointed, will be exposed to if
that evidence
is to be presented anew, whether by the witness in person or through
another intermediary; and
(in)
the likelihood that real and substantial justice will be impaired if
that evidence is admitted. "
[26]
In so far as the trial itself is concerned I perused the transcript
thereof and it appears to me that there was no breakdown
in
communication, irregularity or breach of procedure when Mhlanga acted
as intermediary. I am unable to opine on the question
whether or not
the witnesses were subjected to mental stress or experienced
suffering during the trial. The mere lack of qualifications
as
proclaimed does not per se vitiate the proceedings. The Court,
however, on realising the absence of appropriate qualifications,
must
make a finding as to the validity of the oath administered or
evidence admitted.
[27]
It seems to me when looking at the record of the proceedings in the
trial, Mhlanga, even though not qualified as intermediary,
successfully and competently bridged the communication gap between
the minor witnesses (including the complainant) and the officials
in
Court which include the State Prosecutor and the attorney defending
the accused. There appears in my view, no irregularity or
breach in
the proceedings which could be so serious as to vitiate the entire
proceedings.
[28]
However, the decision as to whether the witnesses as minors were
subjected to mental stress or suffering which consequently
affected
the validity of the proceedings in terms of Section 170A (5) rests
with the Magistrate. He has to make a finding in terms
of Subsection
(5)(b) of Section 170A of the CPA, as to the admissibility of the
evidence in the trial, with due regard to:-
(i)
the reason why the intermediary concerned was not qualified to be
appointed as an intermediary and the likelihood that the reason
concerned will affect the reliability of the evidence so presented
adversely;
(ii)
the mental stress or suffering which the witness, in respect of whom
that intermediary was appointed, will be exposed to if
that evidence
will be presented anew, whether by the witness
in person or
through another intermediary; and
(iii)
the likelihood that real and substantial justice will be impaired if
that evidence is admitted.
[29]
I have dealt with the reason why the intermediary was not qualified
in paragraph [12] of this judgment. The rest of the issues
can only
be decided by the Magistrate who presided in the trial. If the
presiding officer is satisfied that there was no breach
of the
proceedings or contamination of the evidence or that the minor
witnesses were not subjected to mental stress and/or suffering,
in my
view the proceedings should be validated in terms of Subsection
(5)(a) of Section 170A of the CPA. As I have already stated,
this is
the finding that the Magistrate should make, as he is better placed
as the presiding officer in the trial, to do so.
[30]
Considering the provisions of this subsection, I am of the view that
the enactment of subsections 5 and 6 of Section 170A,
makes it
unnecessary in future to refer the issue of an unqualified
intermediary for special review. The trial Court is empowered
to deal
with such situations wherever they arise.
[31]
The matter is accordingly referred back to the Magistrate Court to
make a finding in terms of Section 170A (5) of Act 51 of
1977.
JUDGE
S. P MOTHLE
JUDGE
OF THE HIGH COURT
I
agree.
JUDGE
M. F. LEGODI
JUDGE
OF THE HIGH COURT