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[2008] ZANCHC 40
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S v Hans (KS 60/02) [2008] ZANCHC 40 (12 September 2008)
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No
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IN THE HIGH COURT
OF SOUTH AFRICA
(Northern
Cape
Provincial
Division)
Case
no:
KS
60/02
Date
heard:
2008-09-01
Date
delivered:
2008-09-12
In
the appeal of
:
DANIËL
MTHETHO HANS APPEL
LANT
versus
THE
STATE
RESPONDENT
Coram:
MAJIEDT
J
et
OLIVIER
J
et
MOLOI
AJ
JUDG
MENT
ON APPEAL
MAJIEDT J:
The
Appellant was convicted of rape in the local Regional Court and the
matter was referred to this Court for sentence in terms
of the
provisions contained in s52(1)(b) of Act 105 of 1997, prior to its
amendment by s1 of Act 38 of 2007. The presiding Judge
having been
satisfied that the proceedings in the Regional Court
were
in accordance with justice, confirmed the conviction and sentenced
the Appellant to 18 years imprisonment.
The Appellant was
granted leave to appeal against conviction and sentence by my
colleague Olivier J (the Acting Judge who
had confirmed the
conviction and imposed the sentence, was no longer acting in this
Division at the time).
Having
perused the record, Olivier J on behalf of the Court, addressed a
memorandum to the Registrar requesting that the record
of the
proceedings be submitted to the Regional Magistrate who had
conducted the trial, for his comment with regard to the fact
that
the intermediary who relayed the complainant’s evidence to the
Trial Court was apparently not sworn in. The Regional
Magistrate
was also requested to comment whether the admonition issued to the
complainant by him at the commencement of her evidence,
had been
interpreted to her by the official interpreter in the complainant’s
language and whether she had heard the said
admonition from the
official interpreter (and not only from the intermediary) before she
responded thereto. The Regional Magistrate
has commented as
requested. I deal firstly with this very important aspect in this
judgment.
The
complainant was 9 years old at the time of the incident and 10 years
old by the time she had to testify in the trial. The
State’s
application for her to testify through an intermediary in terms of
the provisions contained in s170A of the Criminal
Procedure Act, 51
of 1977 (“
the
Act
”)
was granted. It is common cause that the Regional Magistrate
correctly found that the provisions of s170A of the Act
are
applicable and that the intermediary was properly qualified in terms
of the Act. The problem arises with the fact that,
as is common
cause between the parties, the intermediary had not been sworn in
prior to her commencing to relay the evidence
of the complainant to
the Court. Mr. Van Tonder, on behalf of the Appellant, has
submitted that this omission constitutes a
fatal irregularity in the
proceedings, whereas Mr. Mashuga, for the State, has argued that the
Appellant has suffered no prejudice,
since the admonition issued by
the Court to the complainant prior to her testimony, was in fact
interpreted to her in isiXhosa
(her home language) by the official
interpreter.
It
has been held in
S
v Booi and Another 2005(1) SACR 599(B)
and
in
S
v Motaung 2007(1) SACR 476(SECLD)
that the failure to administer an oath or affirmation to an
intermediary at a trial constitutes an irregularity. I am in
respectful
agreement with these two decisions.
In
his detailed response to the query by Olivier J, referred to
supra
,
the Regional Magistrate makes the following points:
a) That
the judgments in
Booi
and
Motaung,
referred to above and alluded to by Olivier J in his aforementioned
memorandum, had been decided subsequent to the trial in this
matter
which had been conducted in 2002 (the Regional Magistrate, however,
conveyed his concurrence in the correctness of those
judgments);
b) That,
having listened to the tapes, he was of the view that he did not
ensure throughout the trial that the official interpreter
translate
all the relevant testimony between the intermediary and the
complainant at all times;
c) That the sound quality
of the communications between the intermediary and the complainant is
extremely poor on the tapes;
d) That
the answers by the complainant were in all instances relevant to the
questions posed, from which he infers that the information
gleaned by
the complainant from the intermediary were in all instances correct
and relevant, so that fears of a possible wrong
interpretation were
thereby obviated;
e) The
Regional Magistrate also took the view that the set of facts herein
accord with those in the
Motaung
matter,
supra
;
f) That
the official interpreter at the trial is no longer in the employ of
the Department of Justice and could not be approached
for an input in
the matter, but having listened to the tapes, the Regional Magistrate
states that he can hear the voice of the
official interpreter
translating the admonition conveyed by the Regional Magistrate to the
complainant and thereafter he hears
the answer of the complainant in
isiXhosa. Afterwards the official interpreter interprets in
Afrikaans what the complainant had
said.
After
the hearing my
two
colleagues and I who presided in this appeal have, at the suggestion
of both Mr. Van Tonder and Mr. Mashuga (who had both
listened to the
tapes and had found it to be inconclusive on this aspect of the
admonition to the complainant by the Regional
Magistrate), listened
to the relevant portion of the evidence on the tapes. The three of
us are satisfied that, indeed, the
Regional Magistrate’s
admonition to the complainant to testify only the truth, can be
heard to be conveyed by the interpreter
in isiXhosa to the
complainant, who, after a short delay, replies in isiXhosa, which is
interpreted by the official interpreter
to the effect that she
understands the admonition. During the slight delay, which I have
referred to, between the interpreter’s
interpretation and the
complainant’s reply, it sounds vaguely as if another person
(probably the intermediary) is also
talking. My colleague, Moloi
AJ, who is fluent in isiXhosa, confirms that the interpretation by
the official interpreter is
correct in all material respects. As a
consequence we are satisfied that the admonition by the Regional
Magistrate to the complainant
to testify only the truth, was
correctly conveyed by the official interpreter to the complainant,
who replied in the affirmative
in isiXhosa as interpreted to the
Court by the official interpreter.
The
aforementioned observations are of considerable importance, given
the factual circumstances in the
Motaung
matter,
supra
.
In that matter, Jones J held as follows at par. 9 and 10 (480 f
– 481 a):
“
[9] The
transcript of the record of evidence shows, and the magistrate's
reasons confirm, that after appointing the intermediary
the
magistrate swore the child in as witness. She then gave evidence in
terms of
ss 158(2)(a)
and
170A
(3)(c) of the
Criminal Procedure Act
in
a room outside the court through the medium of closed-circuit
television. Questions were put in English and were interpreted into
isiXhosa by the interpreter. The interpretation was heard by the
child and repeated by the intermediary in the course of assisting
and
supporting her during the course of her evidence. The intermediary's
rendition of the questions interpreted by the interpreter
was audible
to the interpreter and, if there had been any misunderstanding, he
would have been aware of it and would have cleared
it up in the
course of his ordinary duties as an interpreter. The child gave her
answers either in isiXhosa or Afrikaans, and the
interpreter once
again interpreted these into English. Everything was recorded and
capable of verification.
[10] The
complainant gave evidence after being properly sworn in as a witness
by the magistrate himself, unlike in the Naidoo case
supra where the
oath was ineffective because it was administered by an unsworn
interpreter. Here, the complainant's evidence is
not inadmissible. As
I understand the magistrate's reasons and as I read the record, the
intermediary did not fulfil the role of
interpreter. The magistrate
is correct that she was merely a conduit. The complainant's evidence
was conveyed through the intermediary,
but was audible through the
closed- circuit television system. It was recorded as part of the
record and was interpreted to the
court directly by the interpreter.
On the facts there is no suggestion anywhere of any impropriety or
any irregularity involving
the presentation of evidence or its
admissibility which operated to the detriment of the accused and
which arose because the intermediary
did not take an oath.”
The
facts in this matter are on all
fours
with the aforequoted exposition of the facts in
Motaung
by Jones J, save insofar as the communications between the
intermediary and the complainant are hardly audible in the present
matter (see para 6(c) and 7,
supra
).
I am in respectful agreement with his conclusion that the
irregularity of the intermediary not having been sworn in, is not
fatal, given the fact that the proceedings were conducted before the
Regional Magistrate through closed circuit television and
given the
fact that the official interpreter had conveyed the admonition to
the complainant and had interpreted the rest of her
evidence to the
Trial Court.
In
the premises, I hold that the proceedings in the
Trial
Court, although irregular, are not to the detriment of the Appellant
for the reasons enunciated above.
I
turn to a consideration of the merits of the conviction. Mr. Van
Tonder has correctly drawn our attention to the fact that
the
complainant was a child witness and also a single witness concerning
the rape allegedly perpetrated on her by the Appellant.
A brief
exposition of the facts is necessary in this regard. The common
cause or proven facts, concisely stated, were as follows:
11.1 The complainant and
the Appellant were alone in the lounge, watching television in the
complainant’s grandmother’s
house. The said grandmother
was asleep in her bedroom, in another part of the house.
11.2 The
complainant alleged that the Appellant had raped her in the lounge on
a couch. The Appellant’s denial in this regard
was rejected as
false beyond reasonable doubt by the Regional Magistrate.
11.3 A
State witness, one Walter Frans, testified that he had knocked on the
front door of the residence (it is clear that this
had happened
around the time when the complainant was allegedly being raped).
According to Mr Frans the door was locked and there
was no reply to
his knocking, although he could see that the television was on in the
lounge. He left and returned a short while
later. When he knocked
again, the door was opened by the Appellant. Upon entering, Mr Frans
saw the complainant lying on a couch
in the lounge; he testified
that, somewhat unusually, the complainant’s eyes were “
wide
open
”.
11.4 Two
days later, the complainant’s aunt, Ms Sekweba, noticed blood
on the complainant’s panties and she reported
this to the
complainant’s grandmother, the schoolteachers and the social
workers. The complainant refused to tell any one
of them what had
happened to her. According to Ms Sekweba, the complainant’s
vagina was swollen. Eventually the complainant
divulged to inspector
Charlie Benn that she had been raped by the Appellant. Inspector
Benn took down the complainant’s
statement and thereafter
arrested the Appellant.
A
double cautionary rule applies to the evidence of the complainant as
a single witness and as a child witness. Her evidence
contains a
number of discrepancies,
improbabilities
and is in conflict in material respects with her witness statement.
The main problem which I have with her evidence
and which was
emphasized by Mr. Van Tonder during argument, is the fact that the
complainant had omitted to make mention in her
witness statement
about the fact that, as she testified in court, the Appellant had
threatened her with a knife which he had
in his possession. Her
explanation that she had forgotten about this aspect in her
statement, is highly improbable. At one
stage in her evidence she
insisted that she in fact told the policeman who took down her
statement about the knife. This was
controverted by Inspector Benn,
who testified that if she had made mention of the knife he would
most certainly have recorded
it in her statement. It is of some
considerable importance to bear in mind that on the evidence
presented to the Court by the
State, the complainant, after having
been confronted by her aunt who saw blood on her panties a few days
after the incident,
had refused to disclose to her aunt, her
grandmother, her teachers at the school and the social workers what
had happened to
her. She was also not willing to talk to other
police officials. Mr. Benn was the first person to whom she made
the disclosure
about the rape, after he had gained her confidence.
It is therefore to be expected, given this considerable confidence
she had
in Mr. Benn, that she would have made mention of all
relevant and important aspects of the incident. It is highly
improbable
in my view that a 10-year old child would forget about
something as important as having been threatened with a knife, even
during
a rape ordeal.
Coupled
to the aforementioned serious difficulty, is the fact that
complainant’s explanation
as
to why she did not approach or call out to her grandmother (who, as
I have stated, was asleep in an adjoining bedroom), fails
to
convince. On her version she did not call out to her grandmother
for help, because the latter had warned her not to make
a noise so
as not to interrupt her sleep. When she was confronted with the
fact that her grandmother would not have approved
of what the
Appellant had done to her, the complainant adapted her evidence and
then testified about the fact that the Appellant
was in possession
of a knife with which he had threatened her.
There
are other improbabilities and discrepancies in her evidence,
particularly when compared to that of the State witness Walter
Frans, but I do not deem it necessary to enumerate same here. In
this regard the record speaks for itself.
15.1
In
summary, I am of the view that the evidence of the complainant, as a
child witness, does not pass muster when measured against
the
authority laid down in various decisions.
See
in this regard inter alia:
R
v Manda 1951(3) SA158(A)
at 163 C;
S
v V 2000(1) SACR 453
(SCA)
at
454 g.
15.2
A
Court can only convict on the uncorroborated evidence of a single
witness if that evidence is satisfactory in all material respects.
See:
S
v Hlongwa 1991(1) SACR 583 (A)
at
587 a-c.
The
evidence of the witness Walter Frans, does not take the matter any
further. He testified that he had knocked on the door
of the house
in which the Appellant and the complainant
were
on two separate occasions before he was granted access by the
Appellant. He found the complainant lying on the couch and
her eyes
seemed unnaturally wide open, as if she was in shock. Furthermore,
the medical evidence of the doctor does not provide
corroboration
that the complainant was in fact raped. Firstly the doctor
testified that due to her very limited experience,
she did not
regard herself as an expert in rape matters. Furthermore she
testified that the tears that she found on the complainant’s
private parts
may
fit in with rape. This opinion quite clearly does not exclude the
fact that these injuries could have been caused to the complainant’s
private parts by something other than sexual penetration.
Given
the lack of corroboration therefore and the complainant’s
unsatisfactory evidence as a single witness to
the
alleged rape and in applying the cautionary rule which is applicable
to child witnesses, I am of the view that, while there
may be some
suspicion that something untoward had occurred between the Appellant
and the complainant in the lounge while they
were alone, the
conviction of rape cannot be sustained in law. In the premises I am
of the view that the Court
a
quo
erred
in confirming the Appellant’s conviction of rape. The appeal
against conviction should consequently succeed.
I issue the following
order:
18.1 The appeal
succeeds.
18.2 The Appellant’s
conviction and sentence are set aside.
___________
SA MAJIEDT
JUDGE
I
concur:
___________
CJ OLIVIER
JUDGE
I concur:
___________
KJ MOLOI
ACTING JUDGE
FOR THE
APPELLANT :
MR
A VAN TONDER
INSTRUCTED
BY :
JUSTICE
CENTRE, KIMBERLEY
FOR THE
RESPONDENT :
ADV
M MASHUGA
INSTRUCTED BY
: DPP