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[2008] ZAWCHC 227
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S v Jacobs (A731/2008) [2008] ZAWCHC 227 (1 August 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE NO
:
A731/2008
DATE
:
1
AUGUST 2008
In
the matter between:
THE
STATE
versus
GAVIN
JACOBS
JUDGMENT
(Appeal
against both convictions and sentence imposed)
AILIE.
J
:
The
appellant was charged in the Wynberg regional court with ten counts
of indecent assault spanning the period 1997 to 2006, and
one count
of rape.
He
was convicted on 31 October 2007 and on 1 November 2007 he was
sentenced to five years imprisonment for attempted rape and three
years imprisonment for the remaining counts of indecent assault. The
sentence was ordered to run concurrently. The appellant now
appeals
against both the convictions and the sentence imposed.
The
complainant testified that the appellant, who is her father's
sister's husband, indecently assaulted her by touching her breasts
and her vagina over her clothing since approximately 1997 untiE 2003
when she moved out of her grandmother's property. She said
that it
occurred twice a week once she began to live at her grandmother's
house. She alleged that it, however, commenced at a time
when she
merely visited her grandmother over weekends. The complainant also
described the indecent assaults as having occurred
in the house, in
the back yard and in a back storeroom at times when the premises were
being occupied by no less than six adults
and numerous children. She
further described the indecent assaults as follows: her uncle hugged
her tightly and touched her breasts
and sometimes brushed past her.
She further described her uncle as having indecently assaulted her,
and I quote:-
"Like
I would be alone and he would touch me all the time.â
This
further description directly contradicts her earlier description
where she said it occurred two or three times a week. Her
initial
description of him touching her over her clothes contradicts her
later allegation that he hugged her tightly and brushed
up against
her. The latter allegation is, however, the description given by both
her mother and father as to what they saw and
perceived as being
indecent assaults. Her parents went so far as to raise these
incidents with the appellant and his wife in the
presence of the
complainant who clearly believed from a young age that her uncle's
hugs and kisses were inappropriate. This directly
impacts on the
cogency of her belief that the appellant indecently assaulted her.
It
is clear that the State had not proved that the indecent assaults
occurred over a period of ten years, as alleged in the charge
sheet.
The alleged nature and manner of the indecent assaults are so varied
and contradictory that it cannot be said that they
have been proved
beyond a reasonable doubt.
The
complainant's description of the alleged attempted rape in February
or March 2006 deserves special consideration She testified
that at
the time she was only 12. That could clearly not have been her
correct age, as she was born in November 1988 and would
have been 17
years old at the time. She alleged that she was alone with the
appellant in her grandmother's house when he called
her to his room.
She stood at the door of his room. He allegedly grabbed her by the
shoulder and took her to his bed. He lay her
down on the bed and
kissed her on her neck. She told him to let her go, but he did not do
so. He unzipped her top, unbuttoned her
shirt and took off her pants
and panty. He pulled down his own pants and underpants and climbed on
top of her. He tried to penetrate
her vagina, but she pushed him off,
stood up and left. In this description the only mention of physical
force is that he grabbed
her by the shoulders and led her to his bed.
She had the physical strength to push him off later, but no
explanation is offered
as to why she did not have the strength to do
so earlier. At the time she was 17 years old and on her testimony had
already endured
at least six years of indecent assault by him. It is
highly unlikely that at that stage when he led her to his bed, she
did not
fear that a sexual assault of some nature was about to occur
This version of the complainant therefore does not accord with the
probabilities. The State prosecutor did nothing to clarify the
glaring discrepancies in the case. This Court is bound by this record
and we cannot ignore the material discrepancies mentioned earlier.
It
is clear that there is a history of animosity between the mother of
the complainant, to some extent the father too, and the appelfant,
his wife and her parents. The Court a
quo
should
accordingly have approached the testimony of the parents, aunt and
grandparents of the complainant with great caution.
The
regional magistrate clearly misdirected herself in finding that the
evidence of the teachers and social worker corroborated
the evidence
of the complainant as they were the first people to whom she
allegedly reported the incidents. They serve merely to
demonstrate
consistency, but in this case they also contradict her evidence.
In
the circumstances, this Court should place more reliance on the
testimony of the complainant and the appellant and look at the
circumstantial evidence to see whose version it favours. The evidence
of the remaining witnesses should be considered primarily
where the
evidence of the complainant and the appellant contradict each other
in material respects.
The
evidence of the teachers, Ms Kimmie and Ms Africa, do not accord with
that of the complainant concerning what she
reported to
them.
The
complainant had testified approximately one year after the
alleged attempted rape occurred.
The
evidence of the social worker, Ms R Kemp, is that the complainant
told her that the appellant commenced indecently assaulting
her at
the age of 13, whereas the complainant testified that it occurred
when she was nine or ten years old. The State adduced
no evidence to
clarify this huge and material discrepancy Ms Kemp made the point
that the complainant was very emotional at the
time when she reported
the incident of attempted rape.
During
cross-examination Ms Kemp, however, conceded that there were many
other factors that could have contributed to the complainant's
emotional state. The evidence of the teacher, Ms Kimmie, was that the
parents of the complainant were involved in divorce proceedings
The
mother of the complainant testified that the complainant was pregnant
during 2006. These are also factors that could contribute
to the
emotional state of the complainant.
When
questioned on how the complainant came to lodge a complaint, she
testified as follows-
â
Just
when I woke up one day, I wasn't feeling well and J, like it had all
got too much for me, and then I went to school. I was
crying and then
I spoke to the school counsellor. That night I had a bad dream and
when I - that's why I wasn't feeling well when
I got up, and I don't
know why, but I managed to talk to her because she kept asking me
what was the matter and I eventually told
her."
The
report was not made immediately after the alleged attempted rape, nor
was the report spontaneously made.
In
the case of
S
v Trainor. 2003(1) SACR 35 at 41B to C
,
the Court said the following concerning the evaluation of evidence:-
â
A
conspectus of all the evidence is required. Evidence that is reliable
should be weighed alongside such evidence as may be found
to be
false. Independently verifiable evidence, if any, should be weighed
to see if it supports any of the evidence tendered.
In
considering whether evidence is reliable, the quality of that
evidence must of necessity be evaluated, as must corroborative
evidence, if any. Evidence of course must be evaluated against the
onus on any particular issue or in respect of the case in its
entirety. The compartmentalised and fragmented approach of the
magistrate is illogical and wrong."
In
casu
an
evaluation of the evidence as a whole leads one to the conclusion
that the version of the State is eveniy balanced against the
version
of the defence. Both contain biased accounts and both contain equally
possible scenarios of what transpired. The onus,
however, rests on
the State to prove its case beyond a reasonable doubt. It does not
have to do so beyond a shadow of doubt, but
merely beyond a
reasonable doubt.
In
the circumstances, I am not persuaded that the State has discharged
its onus at all in relation to the ten counts of indecent
assault,
nor that it has removed the reasonable doubt created by the defence's
version supported by the common cause fact extracted
from the
witnesses for both sides that were family members in relation to the
attempted rape charge.
In
the circumstances I would
SET
ASIDE
the convictions and concomitantly the sentence imposed by the Court
a
quo.
I
agree.
LE
GRANGE, J
And
it is so ordered:
ALLIE,
J