Y v S (537/2018) [2020] ZASCA 42 (21 April 2020)

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[2020] ZASCA 42
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Y v S (537/2018) [2020] ZASCA 42 (21 April 2020)

THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case
no: 537/2018
In
the matter between:
Y                                                                                                               APPLICANT
and
THE
STATE                                                                                        RESPONDENT
Neutral
citation:
Y v S
(Case no 537/2018)
[2020] ZASCA 42
(21
April 2020)
Coram:
NAVSA, DAMBUZA, MOLEMELA and MBATHA
JJA and MOJAPELO AJA
Heard
:
18 February 2020
Delivered
:
This judgment was handed down electronically by circulation to the
parties’ legal representatives by email, publication
on the
Supreme Court of Appeal website and release to SAFLII. The date and
time for hand-down is deemed to be 10h00 on 21 April
2020
Summary:
Criminal
law and procedure – evidence – sexual assault and rape of
child complainant in terms of the
Criminal Law (Sexual Offences and
Related Matters) Amendment Act 32 of 2007
– multiple
contradictions and inconsistences in the evidence of single child
witness – whether the evidence was sufficient
to prove the
offences beyond a reasonable doubt – evidence unsatisfactory in
material respects – appeal upheld.
ORDER
On
appeal from:
Free
State Division of the High Court, Bloemfontein (Mbhele J and Chesiwe
AJ, sitting as court of appeal):
1 The application for leave to appeal is granted.
2 The appeal is upheld and the order of the court below
is set aside and substituted as follows:
‘
The appeal is upheld and the
convictions and related sentences are set aside.’
JUDGMENT
Mbatha
JA (Navsa and Dambuza JJA concurring)
[1]
The applicant, Mr Y, was arraigned before the Regional Court for the
Division of Free State, Bloemfontein (the regional court)
on one
count of sexual assault in contravention of s 5(1) of the Criminal
Law (Sexual Offences and Related Matters) Amendment Act
32 of 2007
[1]
(the Sexual Offences Act), and two counts of rape in contravention of
s 3 of the Sexual Offences Act.
[2]
He entered a plea of not guilty on all charges. He was subsequently
convicted of all charges. He was then sentenced to five years’

imprisonment on the conviction of sexual assault and life
imprisonment on the two convictions of rape.
[2]
His application for leave to appeal his convictions and related
sentences was dismissed by the regional court. A petition to
the
Judge President of the Free State Division of the High Court,
Bloemfontein (the high court) met the same fate. This was followed
by
an application for leave to appeal to this Court, which leave was
granted to the full court of the high court, in respect of
both
conviction and sentence. That appeal failed.
[3]
The applicant then lodged an application for special leave to appeal
to this Court, which was referred for oral argument in
terms of
s
17(2)
(d)
of the
Superior Courts Act 10 of 2013
. The parties were directed to
be prepared, if called upon to do so, to address the court on the
merits of the appeal. We heard
argument on both the application for
leave to appeal and on the merits.
[4]
It is necessary at the outset to state that the police, the
prosecuting authority and courts are required to display the
requisite
sensitivity and attentiveness to cases involving sexual
offences, including consideration of the trauma attendant upon those
who
were victims, especially when they are children. Care should
however also be taken at the end of the case to ensure that the
criminal
standard of proof has been met. The State is required to be
technically proficient in prosecuting the case. In this case the
prosecution
fell short. This is an aspect to which I will repeatedly
refer.
[5] The complainant in this matter was born on 4
November 1996. She was thus 13 years and six months old when the
trial commenced
in the regional court. The applicant, the accused in
the regional court, is her stepfather. It is necessary to pause to
have regard
to the charge sheet which we had to call for during the
hearing before us as it was not provided as part of the record. In
respect
of the first count, the particulars provided in the charge
sheet read as follows:
‘
In that on or about the During 2008 and at
or near Bloemfontein in the Regional Division of Free-State the said
accused did unlawfully
and intentionally sexually violate the
complainant, to wit minor child (Ms X) 12 years by making her touch
and caress your penis
and touching and caressing her breasts without
the consent of the said complainant.’
In respect of the second count the charge sheet reads as
follows:
‘
In that on or about the During 2008 and at
or near Bloemfontein in the Regional Division of Free-State the said
accused did unlawfully
and intentionally commit an act of sexual
penetration with the complainant to wit, (Ms X) a 12 year old girl by
penetrating her
vagina with fingers more than once without the
consent of the said complainant.’
In respect of the third count the charge sheet set out
the following:
‘
In that on or about the during August 2009
and at or near Bloemfontein in the Regional Division of Free-State
the said accused did
unlawfully and intentionally commit an act of
sexual penetration with the complainant to wit, 12 year old (Ms X) by
penetrating
her vaginally with his penis once.’
[6]
It is common cause that the complainant, her mother, her stepfather
and her sibling, all lived together in Trompsburg before
they moved
to a caravan park in Bloemfontein. The allegations against the
applicant first surfaced after an incident that occurred
on
17 September 2009. The complainant had stolen a chocolate at a
local Spar supermarket. Her mother was informed about this.
She in
turn telephoned the complainant’s stepfather who then arrived
at the shop and physically admonished her in public.
According to the
complainant she was smacked across her face. The applicant, in his
evidence, insisted that he had struck her across
her buttocks.
[7]
In respect of the theft of the chocolate and subsequent events Ms V,
the complainant’
s 17
year old friend, testified that on 18
September 2009, whilst they were walking home from school, she
enquired about a blue eye
that the complainant had sustained and
which had been visible at school the day before. The complainant told
her that she had been
struck by her stepfather with an open hand,
across the face, the day before, because she had stolen sweets from
the supermarket.
Ms V, in turn, told her mother about this exchange.
Her mother imparted this information to the caretaker of the caravan
park,
who suggested they wait for the complainant to arrive before
they contacted a social worker. As the complainant approached the
caravan park, Ms V told her that she had informed her mother about
the assault by her stepfather. Upon hearing this the complainant

started crying and was concerned that her mother might be angry that
she had told someone about the assault.
[8] Following on what is set out in the preceding
paragraph, according to Ms V, she then knelt before the complainant
and advised
her that if there was anything she wished to communicate
she must do so, because the social worker was on her way. The
complainant’s
response was to cry even more. The following part
of Ms V’s evidence-in-chief on this aspect, is important:
‘
I then asked if uncle Y was. . . Or if she
was touching, if Oom Y was touching her body.
Ugh-huh? --- She then said to me; yes. I then asked her; what does
uncle Y do to her. She then said that uncle Y puts some hard(?)
parts
into her. …(indistinct) and she showed me. …
(interpreter clarifies). He insert his part into her (sic).
How did she show you? --- She stood upright and showed me and pointed
to her genitals and okay(?) this(?) part of the man …

(indistinct) that(?).
You mean… What parts? --- This part of a man…
INTERPRETER: The witness is pointing to her genitals.
Into what? --- Into her vagina.
Ugh-huh? --- I then asked her; what else does uncle Y do? She told me
that uncle Y also touches her body all(?) over(?) her body.
I then
asked her if she could still remember the last time that uncle Y
inserted his private part into hers.
Ugh-huh? --- She told me she could not remember
quite well but it was about a year ago.’
[9]
It is common cause that subsequent to the discussion described above,
Ms V’s mother was informed and a social worker was
summoned and
after she had spoken to the complainant in the presence of Ms V, the
police arrived and arrested the applicant. In
light of the narrative
thus far and the information available to the prosecutor, one
would’ve expected care to be taken in
the presentation of the
evidence of the complainant, especially in relation to the
chronology, location and frequency of the actions
of the applicant.
This was not done.
[10]
I now turn to set out the relevant parts of the evidence of the
complainant who testified through an intermediary. It is necessary
to
deal with her evidence in some detail. The material part starts with
the prosecutor saying: ‘Now let us start the whole
episode from
2008. Do you remember the month when this started?’ And the
complainant responding first: ‘My pa het my
geleer van seks.’
The court then pointed out that the intermediary had not conveyed the
question concerning the month in
which the offending conduct
commenced. The complainant then said that she could not remember the
month. It must at this stage be
kept in mind that the prosecutor
started by suggesting the year in when the ‘whole episode’
started.
[11]
The prosecutor then posed the following question: ‘Can you then
tell us how it started what your dad did first before
you reach to
the rape, what did he do? The answer to that question was: ‘Hy
het aan my gepeuter’.‘Peuter’
is defined in the
Pharos
Afrikaans-Engels
Woordeboek
[3]
as follows: ‘fiddle, potter, putter, niggle, tinker, palter,
footle, piddle, tamper. . .’ It is to be noted that the

prosecutor started by suggesting that she still has to testify about
being raped. Up until that stage, she had not mentioned rape.
[12] Immediately after the exchange set out in the
preceding paragraph the prosecutor said the following:
‘
Tell us everything how it started, how you
touched him, all those things.’
Once again the prosecutor is leading the witness. She
had not yet testified about touching the applicant. Shortly
thereafter the
prosecutor then asked the following question:
‘
Tell us where were you, who came and how it
happened.’
The following is the relevant exchange:
‘
Hy het langs my kom lê in die bed.
Whose bed? --- My bed.
Yes? --- Hy het gepeuter aan my. Toe trek hy sy broek af. Toe trek hy
my broek af. Toe verkrag hy my.
How did he rape you, what did he do, actually do. What part of the
body did he use? --- Sy private deel.
Where, what did he do with his private part? --- In my privaatdeel
gesit.
And did what? --- Hy het my verkrag.
COURT: Do you have the dolls there Mrs Van der Walt.
[INTERMEDIARY]: Ja ek het.
COURT: I think you can give her the dolls to demonstrate because she
is struggling to talk. Proceed.
Before, had she done anything to you on the body? --- Hy het aan my
gepeuter.
Not on the day of the rape, I am talking about before then? --- Ja.
What did he do? --- Hy het sy vinger in my private plek gesit.
And where were you when he did so, at home, in your bedroom, in the
kitchen? --- Ek kan nie onthou nie.
Was it once or many times, several times? --- Meer
as een keer.’
[13] The complainant then testified that she had been
sworn to secrecy by the applicant. The prosecutor proceeded to ask
the following
question:
‘
Has Y ever shown you his body or anything?
--- Ja’
What appears hereafter is the relevant exchange:
‘
What? --- Sy private plek.
Where were both of you? --- In sy kamer.
What did he start saying before he showed you his private part, his
penis? --- Hy het my verduidelik van seks.
Saying what? --- Ek kan nie so mooi onthou nie.
Did you know how kids were made? --- Ja.
Did anyone tell you how they are made? --- Nee.
So you did not know why he was showing you his private part? --- Nee.
What did he say about sex? --- Hy het my vertel hoe word babas
gemaak.
What did he say? --- Hy het gesê as jy seks het, ‘n sperm
gaan in jou in ‘n vrou se liggaam in, dan word dit
groter en
dan kry jy ‘n baba daar.
Hm-hm? --- Ek kan nie mooi onthou nie.
Did you touch or only see that penis? --- Hy het my hand gevat en dit
op sy private deel gesit.
Did you agree to do so or were you just ordered to? --- Ek het vir
hom gesê ek wil nie.
But what happened? --- Toe vat hy my hand en toe
sit hy dit op sy private deel.’
[14] The complainant was asked whether she had told her
mother about what had occurred and her answer is: ‘Nee’.
Asked
why she had not done so, she stated ‘Ek was bang’
and then immediately thereafter ‘Ek was bang hy maak my seer’.

The following further exchange is also relevant:
‘
Did this touching of his penis happen on a
separate date or time or day from the rape? --- Ja.
So am I correct to say the touching of your breast and the putting on
fingers was also different from this touching of penis and
rape?
COURT: Do you understand? --- ‘n Paar dae daarna, ja.’
Significantly,
the complainant had not testified about the touching of her breast
before it was mentioned by the prosecutor, nor
did she testify about
it thereafter. It is also, at this stage, important to note that in
the exchange referred to above, it is
clear from the complainant’s
evidence, that the three incidents set out in the charges sheet,
occurred within days of each
other.
[15] The prosecutor subsequently attempted to obtain
clarity in relation to the sequence of events:
‘
So can you then tell us which comes first,
when did he do this first and then this and then that? --- Heel
eerste het hy vir my
verduidelik van seks. Daarna toe begin hy vat
aan my privaatdele.
Hm-hm? --- Toe het hy een dag my verkrag.
All these times you did not tell your mother? – Nee.
Did anyone say you must not tell? --- My Pa.’
At
this stage she was denying that she told her mother about any one of
the three incidents.
[16] The prosecutor continued and questioned the
complainant about how the applicant’s conduct became known to
others:
‘
--- Toe my pa my verkrag het toe het ek vir
hom gesê, los my uit, toe raak hy kwaad, toe sê hy iets
vir my ma. Die volgende
dag in die badkamer toe vra ek vir my ma wat
het gebeur. Toe sê ek vir haar hy het my seergemaak. Toe vra sy
vir my hoe seergemaak.
…
Toe sê ek vir haar hy het sy
privaatdeel in my privaatdeel ingedruk.’
From
this exchange it appears that what her stepfather said to her mother,
caused her to ask what had happened, rather than her
disclosing
anything before that.
[17]
The complainant went on to testify that Ms V came to know about it
after she had been asked by the latter whether the applicant
was
molesting her. The prosecutor then asked the complainant whether she
had an injury on her face. This was before anybody had
testified
about such an injury.  Despite this impermissible leading of the
witness, the magistrate did not once intervene.
The complainant
confirmed that she had an injury on her face and that this had
occurred because her stepfather had assaulted her
after the theft of
the chocolate. She confirmed that Ms V and her mother had contacted
the caretaker of the caravan park and thereafter
the social worker.
[18]
Towards the end of her evidence-in-chief the complainant said that
after she had informed her mother about what her stepfather
had done,
the former had undertaken to talk to him about it, but did not appear
to have done so.
[19]
Under cross-examination the complainant described the inside of the
caravan in which her family lived. She described how the
front door
of the caravan was kept open so as to access a small room standing
apart from it. Two beds stood within the caravan
and one in the
adjoining room. Her mother and stepfather slept in the caravan and
she slept in the adjoining room. The beds were
apparently two to
three metres apart. The complainant was asked to explain what she
meant when she used the word ‘gepeuter’
in her earlier
evidence. She replied that she meant that the applicant had placed
his finger in her private part. She did not protest
because she was
afraid he would assault her.
[20]
The complainant was asked when the applicant had exposed his penis
and placed her hand on it. She said that this had occurred
in his
room. This incident, she said, had occurred in his room when they
still lived in Trompsburg. She could not remember the
date of that
incident. She could not say whether it was two, three or six months
before they moved from Tromspburg to the caravan
park. She did say
however, that it had occurred before the rape in the caravan. She
could not remember whether it was three months
or six months before
they had moved to the caravan park,
[4]
ostensibly from Trompsburg. Almost immediately thereafter, she said
that the rape in the caravan had occurred a few months after
the
incident in Trompsburg.
[21]
It will be recalled that the first two incidents, including the one
presently being discussed were said in the charge sheet
to have
occurred in 2008, whereas the rape was said to have occurred in 2009.
It will also be recalled that the complainant had
testified earlier,
in-chief, that the three incidents in respect of which the applicant
had been charged had occurred a few days
apart. From her
evidence-in-chief they appear to have occurred at one location,
namely, the caravan park, as that is where they
had been living at
the time. Trompsburg was never mentioned by the complainant during
her testimony in-chief.
[22]
Under cross-examination the complainant was asked, once again, when
the applicant had first abused her sexually. Her reply
was that she
could not recall. She said she could not recall when it occurred
because she might not want to recall it. She was
asked about the
second time when he had abused her sexually. Her response was: ‘As
ek kan reg dink, in my bed.’ She
had no idea where her mother
was at that time. According to her, the caravan door was open at the
time.
[23]
Asked how many times he had abused her sexually (gepeuter het), she
replied, ‘baie keer’. She was asked whether
it occurred
in the caravan park or in Trompsburg. She replied that it had
occurred in both locations. She could not recall where
her mother was
when any one of these incidents occurred.
[24] Further, under cross-examination, the complainant
repeated that she had not called for help because she was afraid. She
was
then asked why she then told her mother about it, when they were
in the bathroom together the next day. She replied as follows:
‘
Want ek wou dit uit my kry.’
Asked why her fear had dissipated, she replied:
‘
Want ek het besef hy kan niks aan my doen
nie.’
As to why she had feared her stepfather before, she replied
‘
Want toe ek klein was het hy Martial Arts
gedoen’
As to why she chose, nevertheless, to disclose her stepfather’s
misconduct to her mother she stated:
‘
Ja maar hy het nie’
Later under cross-examination she was asked, once again, why she had
told her mother about the rape. She replied:
‘
Want ek het besef ek moet’.
Shortly thereafter she said the following:
‘
Ek was bang daardie aand want as ek vir my
ma vertel het of ekskuus, as ek geskree het daardie aand sou my ma en
my pa gestry het
en ek wou hulle bymekaar hou.’
Pressed by counsel for the applicant as to why she told her mother
about the incident the next day, she replied:
‘
Ek het nie meer omgegee nie . . . Want ek
het besef een van die dae gaan kom wanneer hulle twee gaan skei.’
A short while later, in response to a question, yet again, about why
she had changed her mind, she said the following:
‘
Want my pa was kwaad gewees het vir my oor
ek vir hom gesê het: los my uit. Toe sê hy iets vir my
ma. Die volgende oggend
toe vra my ma vir my wat het gebeur. Toe sê
ek vir haar my pa het my seergemaak. Toe vra sy hoe seergemaak.’
[25] The complainant had testified that while she was
raped in the caravan she had said the following to her stepfather:
‘
los my uit’.
She
said her mother would not have heard because she speaks softly.
[26] Asked about whether she had stolen sweets before,
she replied:
‘
Nie wat ek aan kan dink nie, nee’
Urged by counsel for the applicant to tell the truth,
she then testified as follows:
‘
Toe ek klein was uit my oupa sê
winkel uit, ja.’
[27]
Asked about the time of day that the rape (the third count) had
occurred she replied: ‘In die aand’. Asked where
her
mother was at the time, she replied: ‘In haar bed’. It
will be recalled that she had testified earlier that she
could not
recall where her mother was at the time of any one of the three
incidents. Later, under cross-examination, she repeated
that the rape
(the third count) had occurred at night. It was common cause that her
stepfather drove trucks over long distances
for a living and that he
was often away from home. The complainant testified that he worked
Mondays to Fridays. Some nights he
was at home. She was adamant that
at the time that her stepfather raped her, she was in her pyjamas.
She could not recall whether
he was dressed or not. Later she stated
that in order for him to have raped her: ‘Hy het seker sy broek
afgetrek.’
Asked if she had seen him do this, she replied: ‘Dit
was onder die komberse, ek kon niks sien nie.’ It will be
recalled,
as set out in para 12 above, that the complainant clearly
testified that she had seen the applicant remove his pants before he
raped her.
[28]
The applicant was referred to a statement to the social worker where
she had stated that he had raped her in the morning, when
he was off
work. When she was confronted with the contradiction between her
statement to the social worker and her testimony about
the time when
the rape occurred she insisted that it had occurred at night and
stated the following:
‘‘
n
mens is ook net ‘n kind ‘n mens vergeet baie maklik’.
[29] Asked under cross-examination whether her
stepfather had been under the influence of alcohol at the time that
he had raped
her in the caravan, she replied: ‘Ek kan nie
onthou nie, dit is lank terug’. In her statement to the social
worker
she had said the following:
‘
Die keer toe hy sy ding in my ingedruk het
was hy ‘n bietjie gedrink gewees. Dit het in die oggend
gebeur.’
In explaining the contradiction, she said the following:
‘
Maar ek kan nie onthou wat ek in die
verklaring gesê het nie, want dit is lank terug.’
[30] Asked about whether she was angry at her stepfather
because he had assaulted her following the theft of the chocolate,
she
replied:
‘
Ek was nie kwaad vir hom gewees nie, elke
kind kry sy pak, maar deur die gesig, nee, dit werk nie so nie.
So jy was vir hom kwaad gewees omdat hy vir jou
deur jou gesig geklap het? --- Ek was nie kwaaad vir hom gewees nie,
maar dit werk
ook nie so dat hy ‘n mens deur die gesig klap
nie.’
[31]
It is to be noted that the complainant repeatedly stated under
cross-examination that she is telling the truth and that it
was up to
others to believe her or not. At one stage she refused to answer a
question on the basis that she had answered it already.
[32] In respect of how the disclosure of the allegation
about her stepfather raping her came about, the following question
and response
are relevant:
‘
Het jy ook toe vir haar vertel dat jou pa
jou verkrag het? --- Sy het my gevra, het hy, toe sê ek ja.’
[33]
Significantly, Ms V testified that the complainant was reluctant to
speak to the social worker because she did not want the
latter to
disclose to her mother what she had done. This is at odds with the
complainant’s testimony that she had already
disclosed to her
mother what her stepfather had done to her. Asked about what had
prompted her to suggest what the applicant had
done to the
complainant, she replied that many people in the caravan park had
suspicions about the applicant. It was clear from
the evidence of Ms
V, her mother and the applicant that there was little love lost
between them and him. More accurately it appeared
that they
positively disliked each other.
[34]
In respect of the blue eye that the complainant had sustained, Ms V
agreed that it was strange that it had not been visible
the morning
after the chocolate incident, and that she had only seen it that
afternoon on the way home from school. She testified
that the
complainant had initially said that she had sustained the blue eye in
a fight. It was only after Ms V accused her of lying
that she
implicated the applicant. This evidence came to light for the first
time during cross-examination.
[35] Under cross-examination Ms V was emphatic that the
complainant had not disclosed her stepfather’s misdeeds to her
mother
‘want sy was bang my ma vertel haar ma’. The
following exchange a little later is important:
‘
Verstaan ek reg; jy sê dat [X] het
vir jou gesê sy het nooit vir haar ma van die goed vertel nie,
wat nou Mnr Y sou
gedoen het nie? --- Nee, sy het nie haar ma vertel
nie.’
[36] Further on in cross-examination Ms V was even more
emphatic:
‘
Ek noem dit vir jou dat [Mnr Y] hier hier
getuig het in die hof dat sy dit wel vir haar ma vertel het. --- Maar
ek sê mooi
vir jou sy het nie haar ma vertel nie, want haar ma
weet van niks nie, tot en met die dag wat [die maatskaplike werker]
daar was’.
Ms
V insisted that the complainant had only told her that she had been
molested sexually by her stepfather, and nothing more.
[37]
Ms V’s mother, Ms H, confirmed her testimony that the
complainant said that she had not told her mother about her
stepfather
sexually abusing her. She did, however, provide some
corroboration for the applicant’s version that he had struck
the complainant
on the buttocks by stating that Ms V told her that
the complainant had been beaten on her buttocks. Towards the end of
cross-examination
she added the injury to the eye.
[38]
Sister Mokoena, a forensic nurse, testified that she had examined the
complainant on 30 September 2009. She completed the J88
medical form,
which showed no evidence of penetration. Irrespective of that, Sister
Mokoena concluded that the lack of injuries
did not exclude the
occurrence of sexual assault.
[39]
The social worker testified that upon receipt of the complaint, she
interviewed the complainant and her family. She testified
that she
immediately placed the complainant in foster care permanently. The
social worker’s testimony was that she observed
a blue mark on
the right hand side of the complainant’s face. As she was
leaving with the complainant she observed the applicant
making
gestures to the complainant indicating to her not to say anything.
Upon being questioned the complainant told her that her
stepfather
was responsible for the mark on her face. The social worker testified
that there were no indications of any marks on
the complainant’s
buttocks or her back.
[40]
The applicant testified in his defence and denied ever sexually
assaulting or raping the complainant. He testified that the

complainant started to misbehave after the birth of her youngest
sibling. The complainant had become uncontrollable as she was

stealing, drinking and associating with people who had a bad
influence on her. He testified that the complainant had laid false

charges against him after he chastised her for stealing chocolate at
the supermarket. He denied assaulting her on her face but
admitted
that he had slapped her twice on the buttocks. He admitted assisting
the complainant with a school project on sex education
with reference
to a compact disc that they viewed on a computer. He also used an
encyclopaedia. It contained drawings which dealt
with the basics of
sex education. The complainant’s mother was present at the
time. The applicant denied that he initiated
the sex education so as
to sexually groom the complainant.
[41]
He testified that in order to commit the alleged rape he would have
had to go over his wife, who was asleep in their bed, remove
the
complainant’s sibling from the bed to get into bed with the
complainant. He testified that in the circumstances of the
layout of
their home, his actions would not have escaped the attention of his
wife who was a very short distance away from where
the alleged rape
took place.
[42]
According to the applicant he and his wife had contacted a social
worker after Ms V and her sibling had come to complain that
they had
been beaten by their mother. When Ms H found out about this, she
swore and abused them and said that she would get back
at them. He
described in graphic terms the animosity between Ms V’s family
and him.
[43]
The applicant also called Dr Deon Wagner as an expert witness, who
testified on the unusual behaviour of the complainant when
examined
by Sister Mokoena and the lack of physical injuries to her vagina.
His evidence was largely speculative and deserves no
further
attention.
[44]
I return to what I set out at the beginning of this judgment. It is
important that I emphasise the displeasure of this Court
concerning
the manner in which the prosecution led the evidence of the
complainant. Cases of this nature require great care in
preparation,
presentation and leading of the witnesses. Meticulous attention to
detail, consultation, and understanding the language
of the
complainant are paramount in the prosecution of sexual offences. It
is very important that a child witness, in particular,
needs to be
allowed to state their version before clarification is sought by the
prosecutor. The prosecutor should not interrupt
the flow of the
witness’ testimony nor pose leading questions to the witness.
Not only does this affect the testimony of
the witness but may have
an adverse impact on the accused who is entitled to a fair trial in
terms of s 35(3) of the Constitution.
[45]
In criminal proceedings, the State bears the onus to prove the
accused’s guilt beyond a reasonable doubt. Furthermore,
the
accused’s version cannot be rejected solely on the basis that
it is improbable, but only once the trial court has found
on credible
evidence that the accused’s explanation is false beyond a
reasonable doubt. (See:
S
v V
2000 (1) SACR
453
(SCA) at 455B.) The corollary is that, if the accused’s
version is reasonably possibly true, the accused is entitled to an

acquittal. It is trite that in an appeal the accused’s
conviction can only be sustained after consideration of all the
evidence
and the accused’s version of events.
[46]
In light of the apparent material contradictions and inconsistencies
in the evidence of the State, particularly those arising
from the
evidence of the single witness, reasonable prospects of success
exist. The merits of the case not only constitute compelling
reasons
for the appeal to be heard, given that they could result in the
applicant being found not guilty, but they also constitute
special
circumstances as the prospects of success are so strong that the
refusal of leave to appeal would probably result in a
manifest denial
of justice.
[5]
[47]
The applicant’s challenge is two pronged. First, the applicant
argued that the regional court paid lip service to the
cautionary
rules when dealing with the evidence of a single witness. This is
apparent from the fact that the evidence of the complainant
was
replete with material contradictions and inconsistencies and should
have been rejected by the regional court. Secondly, the
applicant
argued that the applicant has reasonable prospects of success in the
appeal, which is based on the material contradictions
and
inconsistencies in the trial together with the evidence of the foster
mother, who testified at the sentencing stage of the
trial and cast
doubt on the credibility of the complainant.
[48]
The applicant was convicted on the evidence of a single witness,
which in order to be sufficient to convict, must be clear
and
satisfactory in every material respect. (See:
S
v Sauls
1981 4 All
SA 182
(A).) It is trite that a court will not rely on such evidence
where the witness has made a previous inconsistent statement, where

the witness has not had a sufficient opportunity for observation and
where there are material contradictions in the evidence of
the
witness. In
Sauls
it was held that there is no rule of thumb, test or formula to apply
when it comes to the consideration of the credibility of a
single
witness. Rather, a court should consider the merits and demerits of
the evidence, then decide whether it is satisfied that
the truth has
been told despite the shortcomings in the evidence.
[49] In respect of sexual assault cases, thankfully
there is no cautionary rule. In
S v Jackson
this Court aptly
stated as follows:
‘
In my view, the cautionary rule in sexual
assault cases is based on an irrational and out-dated perception. It
unjustly stereotypes
complainants in sexual assault cases
(overwhelmingly women) as particularly unreliable. In our system of
law, the burden is on
the State to prove the guilt of an accused
beyond reasonable doubt – no more and no less. The evidence in
a particular case
may call for a cautionary approach, but that is a
far cry from the application of a general cautionary rule.’
[6]
[50]
The only direct evidence implicating the applicant in this case was
that of the complainant. For such evidence to be accepted
it must be
clear and satisfactory in all material respects. The regional court,
in the evaluation of the complainant’s evidence,
stated that it
was alive to the need to treat her evidence with caution because she
was 13 years and six months old at the time
of giving evidence and
she had testified through closed circuit television with the
assistance of an intermediary.
[51]
In
Woji v Santam
Insurance Company Ltd
[7]
,
a civil judgment, this Court stated that the question which the trial
court must ask itself is whether the young witness’
evidence is
trustworthy. Trustworthiness depends on factors such as the child’s
power of observation, their power of recollection
and their power of
narration on the specific matter to be testified. In each instance
the capacity of the particular child is to
be investigated. Their
capacity of observation will depend on whether they appear
intelligent enough to observe. Whether they have
the capacity of
recollection will depend again on whether they have sufficient years
of discretion to remember what occurs while
the capacity of narration
or communication raises the question whether the child has the
capacity to understand the questions put,
and to frame and express
intelligent answers. There are other factors as well which the court
will take into account in assessing
the child’s trustworthiness
in the witness-box. Do they appear to be honest – is there a
consciousness of the duty
to speak the truth? Recently, in
Matshivha
v S
this
Court expressed itself as follows:
‘…
the prosecution of rape presents
peculiar difficulties that always call for greater care to be given
and even more so where the
complainant is young.’
[8]
This
Court went on to cite an earlier judgment
S
v Vilakazi
[9]
where Nugent JA said the following:
‘
From prosecutors it calls for thoughtful
preparation, patient and sensitive presentation of all the available
evidence, and meticulous
attention to detail. From judicial officers
who try such cases it calls for accurate understanding and careful
analysis of all
the evidence.’
[52]
The objective evidence, namely, that of the nursing sister who
examined the complainant is at best for the State, neutral or
at
worst exculpatory. I am willing to assume, in favour of the State,
that it is a neutral factor.
[53]
An assessment of the complainant from the record suggests that she is
as mature and as intelligent as could be expected for
her age. At
times she stood up to the attorney representing the applicant, asking
him why he was defending her stepfather. At other
times she appeared
petulant refusing to answer questions and asserting sternly that the
cross examiner and others were at liberty
to decide whether or not to
believe her. Her evidence noted in para 28 above in explaining away a
contradiction, namely that one
forgets as one is after all a child
indicates a perceptive nature.
[54]
It is very difficult from the record to obtain a clear picture of a
chronological sequence of events from the complainant’s

evidence. The evidence vacillates between the incidents occurring
within days of each other, possibly at one location, and being
months
apart and at different locations. I am conscious of the fact that the
charge sheet states that the charges in count 2 were
committed on
diverse occasions. The evidence of the complainant should have given
some kind of certainty as to the period of when
the offences were
committed. One is unable with any degree of certainty to locate where
the incidents occurred, save perhaps for
count three. This might have
been partially due to the manner in which she was led by the
prosecutor, but it cannot all be excused
on that basis.
[55] In her statement to the social worker the
complainant appears to have been careful to make the time of the rape
in the caravan
coincide with the time that the applicant would have
been off work, namely the morning. The statement was taken much
earlier in
time in relation to the incident than her testimony. In
her testimony she contradicted the statement, by saying that the rape
had
occurred at night but could not say whether it was light or dark.
[56]
In her statement to the social worker, the complainant had said that
her stepfather had been a little drunk when he raped her.
In her
testimony in court she said she could not remember if he had been
drunk at the time of the rape.
[57]
This is not an instance where reliance can be placed on cases that
justify inconsistencies between statements made by witnesses
and
other to police officers and viva voce evidence on the basis of a
misunderstanding due to language or cultural differences.
The social
worker was Afrikaans speaking as is the complainant. The complainant
never disavowed the statement she had made to the
social worker. The
complainant never said that she was misunderstood or that she had not
said what the social worker had written.
[58]
In relation to the reason for disclosing earlier that she had been
sexually abused, her evidence is unsatisfactory. This coincided
with
the various reasons she gave for not raising the alarm when she was
being raped: she was afraid of the applicant, who was
a martial arts
expert, and that she had spoken softly when she told him to leave her
alone. When it was suggested to her that her
mother was within
earshot, she gave a different reason: she wanted to keep her family
together and if she had told her mom that
night or screamed, her
parents would have fought and she wanted to keep them together.
Nonetheless, she testified that the following
morning she no longer
cared and told her mother. As shown in para 24 above, she followed
this testimony by a sudden realisation
that they would be divorced
one day soon. This too changed and the reason provided, as set out at
the end of para 24, is that
the disclosure
about the rape appears to have been prompted by the discussion
between her stepfather and her mother asking her about
what had
occurred.
[59]
When it was put to the complainant that her mother would have heard
when she said ‘los my!’ (let me go), she then
said she
was soft-spoken. When questioned why she spoke softly, her reason was
that she was a soft spoken person. A soft spoken
person is not
prevented from speaking more loudly or even shouting.
[60]
The complainant’s evidence about whether her stepfather had
removed his pants when he allegedly raped her, demonstrates
yet
another inconsistency and contradiction. She initially said that he
removed his underpants. Under cross-examination she said
she could
not see because it all happened under the blankets.
[61]
Her testimony that she had disclosed the rape to her mother, the
morning after the event, is in sharp contrast to Ms V’s

evidence that she was dead-set against her mother being told about
sexual abuse. Ms V’s evidence, as set out above, is emphatic

and calls into question the veracity of the complainant’s
entire account of how and why she spoke to her mother the morning

after the alleged rape.
[62]
The complainant had initially lied about whether she had stolen
sweets on more than one occasion. The inconsistencies and
contradictions abound.
[63]
One cannot discount that the disclosure to Ms V was prompted by the
latter. On Ms V’s own version, she had literally
gone down on
her knees alongside the complainant in order to elicit the disclosure
of sexual molestation. Furthermore, all that
was communicated,
according to Ms V, was sexual molestation and not rape. The
complainant’s evidence vacillated between communication
of
molestation only and of both molestation and rape.
[64]
The ill-will between Ms V and her mother on the one side and the
applicant on the other, is a disturbing feature, when seen
against
what is set out in the preceding paragraph.
[65]
One cannot ignore that on Ms V’s version the complainant had
initially lied about the reason for the blue eye, which
she later
recanted. The question that persists is when one can believe the
complainant and when not.
[66]
A further factor to be considered is that although the complainant
said she was not angry at her stepfather for the beating
she received
after the theft of the chocolate, her evidence set out in para 30
above demonstrates that she was deeply aggrieved.
She had reason to
implicate him. No wonder then that the foster mother, who was called
by the State, in aggravation of sentence,
and who had lived with her
for a few years, testified that she had told her that she had accused
the applicant to get her own back
at him. This evidence, of course
was not available to the magistrate before conviction. Neither was
the evidence of the foster
mother that she bragged publicly about how
she had stolen sweets.
[67] I am not unmindful of the pressures of being in a
court room, nor the trauma attendant on victims of sexual assault. As
can
be seen from what is set out above, I have taken great care to
assess the evidence adduced in the court below. The contradictions,

the inconsistencies and the overall unsatisfactory nature of the
evidence by the complainant, cannot be excused.
[68]
Counsel for the State was constrained to concede the many
inconsistencies and contradictions set out above. He argued, however,

that they were not material. On the contrary, they were essential to
the proof of elements of the offences with which the applicant
was
charged.
[69]
For all the reasons set out above the regional court erred by
convicting the accused on evidence that was unsatisfactory in
so many
respects and ultimately unreliable. The high court, in holding that
the complainant was consistent and frank and dismissing
the appeal,
erred. In the premises the application for leave to appeal must
succeed and so too the appeal.
[70] The following order is made:
1 The application for leave to appeal is granted.
2 The appeal is upheld and the order of the court below
is set aside and substituted as follows:
‘
The appeal is upheld and the
convictions and related sentences are set aside.’
________________________
Y
T MBATHA JA
JUDGE OF APPEAL
Dambuza
JA (Navsa JA concurring)
[71]
I have had the benefit of reading both the majority and minority
judgments. I am in agreement with the reasoning and the outcome
in
the majority judgment. I consider it necessary to provide my own
brief observations regarding the evidence adduced and to comment
on
the standard of proof in criminal cases. Proof beyond reasonable
doubt can only be met where reliable evidence sets out coherently
the
event(s) on which a charge is founded. The version that emerges at
the end of the State case must be sufficiently coherent
to avoid
conflict with the constitutional rights guaranteed to every person
charged with a criminal offence. And while the compound
effect of
imperfections in a child’s recollection and communication
faculties, together with the possible trauma of sexual
violence must
be taken into account in the evaluation of the evidence in sexual
assault cases, these factors do not justify discarding
the set
standard of proof for conviction. An accused’s constitutional
rights both in relation to fair trial procedures as
well as to a just
result cannot be discarded.
[72]
As pointed out in the judgment of Mbatha JA, the manner in which the
prosecutor led the complainant’s evidence in this
case was
woefully deficient. In my view it is difficult to make out a
sufficiently cohesive version. Confusing, suggestive interruptions
by
the prosecutor began shortly after the start of the complainant’s
evidence to derail the flow of the testimony, particularly
in
relation to the fondling and sexual assault charges or ‘peutering’.
It has been said that ‘whilst it is certainly
true that the
evidence of children should not be approached on the basis of
assumptions that all children make false allegations,
have poor
memories and are highly suggestible, it is equally true that a court
may not and cannot convict unless it is safe to
do so, that is,
unless there is proof beyond reasonable doubt’.
[73]
While any expectation that the complainant would be able to recall
exact dates of each of the alleged incidents, or what she
or the
applicant was wearing on each day, would be unreasonable for obvious
reasons, the deficiencies in her version described
in the majority
judgment, considered comprehensively, revealed a less than
satisfactory version. Self-contradictions in her evidence,

improbabilities and contradictions between her evidence and that of
other state witnesses, particularly Ms V and the social worker,

cannot be overlooked. Too many questions were left unanswered –was
Ms V the first person that the alleged conduct was reported
to, as
she insisted? If so, the manner in which the report was extracted
bears scrutiny as was done in the main judgment. Or was
the first
report made to the mother? If no report was made to the mother as Ms
V insisted, did the rape which, according to the
complainant, led to
a complaint to her mother, take place? Did it take place in the
evening as she testified or in the morning
as reported to the social
worker? Did it take place at all? What exactly happened?
[74]
When the report she had made to the social worker about the time the
rape had occurred was put to the complainant she did not
disavow
having made such a statement about the time. There was no objection
by the State in relation thereto.
[75]
The applicant was clear, in his evidence in-chief, about the bad
blood between him and Ms V and her mother, due, inter alia
to past
confrontations and to a complaint he had lodged with a social worker
in the past. He was equally clear about it when he
was cross-examined
by the prosecutor:
‘
Ek haa[t] hulle soos
gif ek praat nie met hulle oor wat hulle doen nie’.
The
deep seated animosity testified to by him was not contested by the
prosecutor in cross-examination. That animosity and Ms V
and her
mother’s base motivation in acting against him cannot be
discounted. It was put to the applicant that his legal representative

had not put to the complainant that she had been influenced by Ms V
and her mother. He, in turn, said he had informed his attorney
about
it. He said the following:
‘
Ek het vir Kobus van
die begin af gesê dat die ma ons wil terugkry vir wat sy gedoen
het en dat die kinders later van tyd
[complainant] beinvloed het dat
sy kon skeef uigedraai het, en toe later is Kobus dood’.
[76]
The material deficiencies in the State’s case were never
pertinently considered by both the trial court and the high
court.
And they are by no means trivial. Neither did the high court consider
the evidence of the foster parent (Mrs J) who, having
been called as
a witness by the State, after more than three and a half years of
fostering the complainant, expressed concern and
exasperation at her
conduct, and testified that the complainant had told her that she
laid the complaint against the applicant
to get back at him for
hitting her. According to her the complainant was deceitful and
manipulative:
‘
[Complainant] het n
manier van dinge gehad, om ‘n ding skelm te doen, leuens te
vertel’.
This
last part of her evidence was tendered whilst she was being led by
the prosecutor, and not under cross-examination by the applicant’s

legal representative.
[77]
References to dicta in which appeal courts have deferred to a trial
court’s assessment of evidence are unhelpful when
the evidence
on record in an instant case, or lack of it, militates against the
conclusions reached by a trial court. In the end
the relevant
standard of proof was not met and the application and appeal in my
view must succeed.
N DAMBUZA
JUDGE OF APPEAL
Molemela
JA (Mojapelo AJA concurring)
[78] I have read the judgment of my sister Mbatha JA
(majority judgment). Regrettably, I am unable to agree with both its
reasoning
and outcome. I consider it appropriate to preface this
dissent with two passages that put into perspective the situation
that typically
confronts a child complainant in court.
In
2004, this Court said:
[10]
‘Rape is a topic that abounds with myths and misconceptions. .
. . For many rape victims the process of investigation and

prosecution is almost as traumatic as the rape itself.’
[11]
(Footnotes omitted.)
For its part, the Constitutional Court remarked as
follows in
Director of
Public Prosecutions, Transvaal v Minister for Justice and
Constitutional Development and Others
:
[12]
‘[105]... If the cross-examination is conducted by the legal
representative, the child will be taken through his or her evidence

in the most minute detail. The cross-examination may bring out facts
that were so grotesque that the child could never have imagined
being
forced to recount them. The child will be taken to task for placing
events, often months after they had occurred, out of
sequence and for
not being able to remember important details concerning the events.
In this intimidating and bewildering atmosphere,
the child
complainant is required to relive and reveal sordid details of the
horror that he or she went through.
. . .
[106] Those who know more about child behaviour from a professional
point of view tell us that children are reluctant to relate
their sad
and often sordid experiences to several different people. As a
result, repetition tends to heighten their sense of shame
and guilt
at what happened to them.’
(Footnotes omitted.)
Any
fair criticism of a child complainant’s testimony in a rape
case ought to bear these remarks in mind.
[79]
I
must at this juncture point out that one of my difficulties with the
majority judgment is that it sets aside the decision of the
trial
court without having engaged with the credibility findings it made.
This flies in the face of the well-established principle
that courts
of appeal will not tamper lightly with the trial court’s
credibility findings.
[13]
As an appellate court, it is essential that this Court remain
cognisant of the strictures on it pertaining to the factual findings

made by the trial court.
[14]
Absent demonstrable, material misdirections and clearly erroneous
findings, we are bound by the trial court’s factual
findings.
[15]
In this dissent, I state why I hold the view that the credibility
findings made by the trial court are beyond reproach.
[80] Given the fact that t
he
majority judgment is critical of several aspects of the complainant’s
evidence and concludes that it is
unsatisfactory
and unreliable. It is therefore necessary to determine whether the
credibility findings made about her are justified.
This entails
scrutinising her evidence with a view to assessing whether there are
unexplained contradictions, inconsistencies and
improbabilities that
have an impact on her credibility. Of course I also address myself to
the criticisms made in the majority
judgment and the submissions made
on behalf of the applicant.
[81] The majority judgment criticised
the complainant for ‘the unsatisfactory manner in which the
evidence was led’
and partially attributed the blame to the
poor execution of the prosecutorial function. In
Director
of Public Prosecutions, Transvaal v Minister for Justice and
Constitutional Development and Others
,
the Court observed that questioning a child in a court room
environment requires skill which, undeniably, not all of our
prosecutors
possess.
[16]
It must therefore be borne in mind
that due to the complainant in this matter being a child witness, her
narration of the events
largely depended on the guidance of the
prosecutor pertaining to the aspects of evidence on which she was
expected to testify.
[82] It is true that the prosecutor
adduced the evidence of the complainant in a haphazard fashion,
constantly interrupting her
and directing her to other scenes before
exhausting the questioning in relation to a particular aspect. While
this was indeed a
poor reflection on her prosecutorial skills, we
need to be careful not to, in the process of determining whether the
requisite
standard of proof has been met, throw the proverbial baby
of credible evidence out with the bathwater.
Of
significance is that this court, being a court of appeal, has the
benefit of an overall conspectus of the transcribed evidence.
It is
therefore in as good a position as any other court to determine the
sequence of events.
[83]
Although the background facts
have been sketched out in the majority judgment, it is necessary to
reiterate aspects that require
a further elucidation. This will
unfortunately necessitate a repetition of the salient facts that form
the basis of this dissent.
My
understanding of the complainant’s evidence is that she was a
victim of historical sexual abuse, the nature whereof will
become
clear shortly.
In a nutshell,
her evidence is that her stepfather, the applicant, sexually abused
her during 2008 and 2009, starting from the time
when the family
lived at Trompsburg, continuing after their relocation to
Bloemfontein. In relation to count one and two, she testified
that
the
there were various instances during
which the applicant asked her to touch his penis. Furthermore, the
applicant would come into her
bedroom and start touching her. During one of these encounters the
applicant inserted his finger in
the complainant's vagina and made
her touch his penis. She was unsure of the exact dates on which these
incidents happened.
[84]
The complainant testified that the incident in relation to count 3
happened in the family home in Bloemfontein. The family
comprised the
applicant, his wife (the complainant’s mother), the complainant
and her younger sister born on 19 June 2006.
The family home in
Bloemfontein was a caravan that was attached to a small adjoining
room. Two beds stood within the caravan and
one in the adjoining
room. A cupboard was put at the door that separated the caravan from
the adjoining room, as a result of which
the door could not close.
The applicant and complainant's mother slept in the caravan section,
which was used as the main dwelling
by the family. The complainant
slept in the adjoining room. It was here that the applicant, on a
specific night, got into the complainant’s
bed, lowered her
pyjama pants and penetrated her with his penis. She stated that it
was painful when the applicant penetrated her
in that manner. She
softly uttered the words ‘los my uit’. The applicant was
angered by her reaction and went back
to his bed, where he joined the
complainant’s mother.
[85]
The complainant testified that she later overheard the applicant
mentioning her name to her mother. The next morning, while
she and
her mother were in the bathroom, she informed her that the applicant
had hurt her. When her mother asked her how he had
hurt her, she told
her that the applicant had inserted his penis into her private parts.
Her mother undertook to confront the applicant
about it but that
never happened. She could not remember the exact date of this
incident.
[86]
The evidence of the complainant portrays
continual
sexual abuse that occurred over a period of time. This may be the
reason for her inability to pinpoint the precise timeline
for the
occurrence of the sexual violations described in the charge sheet.
This appears to be the reason why the charge sheet fixed
no dates for
the various sexual violations beyond a reference to the years 2008
and 2009. I did not understand the complainant’s
evidence to be
that all the incidents happened within days, as suggested in the
majority judgment. The complainant’s response
of ‘’n
paar dae daarna’ must be seen in context. It was in response to
a vague question posed by the prosecutor.
T
he
sequence of events is captured in the following exchange between the
prosecutor and the complainant is important:
‘So can you tell us which comes first, when did he do this
first and then this and that? ---Heel eerste het hy vir my
verduidelik
van seks. Daarna toe begin hy vat aan my privaatdele.
Hm-Hm. --- Toe het hy my
eendag
verkrag.’(Own emphasis.)
[87] In her narration of the events,
the complainant was consistent that the incident concerning the theft
of the chocolate happened
after the rape that constitutes count
three. She attributed the bruise (blue eye) that she sustained to the
fact that the applicant
was wearing a ring when he slapped her in the
face.
It is noteworthy that despite all
the trauma exhibited by the complainant during the proceedings, she
was able to give her account
of events in relation to all the
charges. Her version, with all its imperfections, sticks together
despite her testimony not having
been led in a strict sequence
.
I was unable to identify any deficiency in her version that could
warrant its outright rejection.
[88]
The peculiar
difficulties inherent in the evaluation of evidence adduced in rape
cases and the requisite careful analysis of all
evidence by judicial
officers are well-articulated in a legion of court judgments. The
question is whether functionaries, including
courts, are demonstrably
alive to that aspect in their analysis of evidence.
[89] The warning sounded by this
Court in
S v
Shilakwe
[17]
comes to mind. In a nutshell, it boils down to this: once a detailed
and critical examination of all the components of evidence
has been
done, a court must step back and observe the mosaic of evidence as a
whole. Acknowledging that doubts about one aspect
of the evidence led
in the trial may arise when that aspect of evidence is viewed in
isolation, the court pointed out that such
doubts may be set at rest
when that aspect of evidence is evaluated again together with all the
other available evidence.
[18]
In
S v Chabalala
,
[19]
this Court cautioned that ‘a trial court (and counsel) should
avoid the temptation to latch on to one (apparently) obvious
aspect
without assessing it in context of the full picture presented in
evidence’.
[90]
In
S
v S
,
[20]
the Zimbabwean Supreme Court cautioned against approaching cases
‘with a single-minded eye towards seeking corroboration’,

as one could, as a result of that approach, lose sight of the reasons
for seeking it. It aptly pointed out that what was needed
was a
proper analysis of the possible shortcomings in a particular child’s
evidence, in which one applied a certain amount
of psychology and
remained aware of recent advances in that discipline. I share the
same sentiments. Various experts in the field
of child psychology and
victimology give insight into the numerous challenges that
sexual
abuse presents to its victims. The following remarks are apposite:
‘
It
is not reasonable to expect a trauma survivor – whether a rape
victim, a police officer or a soldier – to recall
traumatic
events the way they would recall their wedding day. They will
remember some aspects of the experience in exquisitely
painful
detail. Indeed, they may spend decades trying to forget them. They
will remember other aspects not at all, or only in jumbled
and
confused fragments. Such is the nature of terrifying experiences, and
it is a nature that we cannot ignore.’
[21]
[91]
In
Bothma v Els
,
[22]
the Constitutional Court aptly stated as follows:
‘
[47] Child rape is an especially egregious
form of personal violation. As law reports from other jurisdictions
show, it is sadly
found in all social classes in all parts of the
world. It is widespread, if under-reported, in South Africa. By its
nature it is
frequently characterised by secrecy and denial. . . .
Because it often takes place behind closed doors and is committed by
a person
in a position of authority over the child, the result is the
silencing of the victim, coupled with difficulty in obtaining
eye-witness
corroboration. Complainants should be encouraged rather
than deterred when, breaking through feelings of fear and shame, they
seek
to bring to light past abuses against them.
. . .
[50] The Supreme Court of Appeal accepted that rape had the inherent
effect of rendering child victims unable to report the crime,

sometimes for several decades, and that the policy was not to
penalise them for the consequences of their abuse by blaming them
for
the delay. . . .
. . .
. . .
[53] A similar approach was adopted by the Supreme Court of Appeal in
S v Cornick
. In that matter the rapes for which the applicants
had been convicted occurred in 1983, some nineteen years before the
complainant
laid charges against them. The complainant was then a
child of fourteen and the applicants some four years older. . .
[54] Upholding the convictions, Lewis JA stated that it was not
improbable that a young woman who had tried to bury memories of
a
traumatic event for many years would not appreciate until her
mid-twenties, at a time when discussion and publicity about rape
had
become common, the full extent of what had happened. . . .’
[23]
(Footnotes omitted.)
[92]
Against
the backdrop of the authorities mentioned in the preceding
paragraphs, the question is whether the trial court’s
evaluation of the evidence passes muster. In my view, it does. It is
true that the complainant was a single witness to the sexual
assault
and the rapes. Her evidence therefore had to be approached with
caution. It behoves our courts to bear in mind that the
exercise of
caution when assessing evidence, should not be allowed to displace
common sense.
[24]
It is clear from the detailed
judgment of the trial court that it was mindful of the cautionary
rule that was applicable to the
complainant’s evidence as a
single, child witness. In dealing with the complainant’s
evidence, it also dealt with the
contradictions between her evidence
and that of other state witnesses and the inconsistencies. Its
application of the cautionary
rule is demonstrable in its detailed
judgment. I therefore cannot agree with the applicant’s
contention that the trial court
paid lip service to the cautionary
rule.
[93] The majority judgment bemoaned
the fact that the prosecutor sometimes put leading questions to the
complainant, which indeed
happened on a few occasions. It
[25]
states that the prosecutor started by suggesting that the complainant
still had to testify about being raped, well before the complainant

had alluded to any rape. With respect, this observation is not borne
out by the record. The record clearly shows that the complainant

testified about being raped without any leading question being posed
by the prosecutor.
[94] At the initial stages of her
testimony, the complainant was asked why she had attended the court
proceedings. Her response
was that she was there to testify about
rape. It was then that the prosecutor invited her to testify about
‘the whole episode
from 2008.’
The
record shows that with specific reference to count three, the
complainant in her own narration, stated that the applicant raped

her. Thereafter, the prosecutor followed up by posing questions aimed
at eliciting her understanding of rape. As no leading question
was
posed by the prosecutor in relation to the two rape charges, the
prosecutor’s approach in relation to those charges survives

scrutiny.
[95]
In assessing the complainant’s evidence, it is important to
bear in mind that the complainant was traumatised by the
sexual
assault and rape. She became emotional on several occasions during
the proceedings in the trial court, which at some stage
necessitated
the adjournment of those proceedings. The majority judgment’s
observation that the complainant ‘appeared
petulant refusing to
answer questions’ pays little regard to the complainant’s
trauma. The complainant was forthright
in mentioning that she was
trying to block out the memories of the historical sexual abuse she
suffered at the hands of the applicant
from her mind. This is not an
uncommon reaction from victims of child rape.
[26]
Consideration must also be paid to the stress the complainant endured
during the proceedings.
[27]
[96]
The line of cross-examination followed by the defence counsel is also
a consideration here. It was clear that the complainant
was
cross-examined with the sole purpose of discrediting her, as the
applicant’s version was not put to her for comment.
Any
seasoned legal practitioner can attest to the difficulties ascribable
to the posing of compound questions to a witness, which
obviously
become exacerbated when the witness in question is a child. A number
of compound questions were put to the complainant,
which made it
difficult for her responses to be as effective as those of an adult
could have been.
[97]
The defence counsel asked the same questions repeatedly. He put to
the complainant that the medical report (J88) did not support
her
version of having been raped
[28]
or sustaining the injury to her eye area. The prosecutor, who was
obviously in possession of the J88 during this questioning, did
not
object to that line of questioning. It was only much later that the
prosecutor objected on the basis that the line of questioning
on that
aspect was not borne out by the record. This caused the court to
express its displeasure at the manner in which a misleading
statement
relating to the medical evidence had been put to the witness. Counsel
for the applicant even went to the extent of asking
the complainant
whether the rape was traumatic for her. The following exchange
between counsel and the complainant is instructive:
‘
Nou vertel gou-gou vir ons en die hof dat
ons kan verstaan, was hierdie verkragting vir jou baie traumaties?
--- Ja
Hoekom was dit vir jou erg gewees? --- Want dit is, want hy het jou
verkrag en hy is nog getroud met jou ma ook, hy moet jou pa
wees, nie
‘n flippen ou of pa wat jou verkrag nie.’
[98] The majority judgment
[29]
states that the complainant had different explanations for not having
previously told her mother that the applicant had been sexually

abusing her. In relation to the complainant’s testimony to the
effect that she was soft spoken and thus spoke softly when
she told
the applicant to leave her alone, the majority judgment reasons that
‘[a]
soft spoken
person is not prevented from speaking more loudly or even
shouting’.
[30]
[99]
With respect, I did not understand the complainant’s evidence
to be that by uttering the words ‘los my uit’
softly
during the rape, she was trying to get the attention of the mother.
This criticism fails to take into account that the complainant

asserted that she had kept her historic sexual abuse a secret because
she was scared of the applicant and also wanted to keep the
family
together. The reasons advanced can co-exist and are not mutually
exclusive at all. As I see it, none of the answers she
gave are
inconsistent with the other. They merely reflect a further
elaboration, as opposed to being a vacillation or contradiction.
[100] A careful reading of the
complainant’s evidence shows that the essence of her
explanation for not telling her mother
about any of the incidents of
sexual abuse before the last incident of rape is twofold. Both
reasons were disclosed in her evidence-in-chief.
First, she was
scared of the applicant, a martial arts expert who had practically
silenced her by telling her that the incidents
were not to be
disclosed to anyone (‘dit bly tussen ons’).
The
applicant’s prowess in martial arts is an aspect that was
attested to by Ms V in her testimony. This evidence was never

disputed. The complainant had witnessed the numerous fights between
her mother and the applicant. Clearly, her fear was not unfounded.
[101]
Second, she
did not want to ruin her parents’ relationship.
She
was aware that there was alcohol abuse within the family which led to
fights between her parents. According to her, her parents
hurt each
other during those fights.
[31]
Her apprehension about her disclosure leading to a disintegration of
her parents’ marriage was reasonable. Under those
circumstances,
her failure to scream or to protest loudly was a
neutral factor that did not detract from her plausible explanation.
[102]
It must be borne in mind, in relation to the rape in count three,
that this was something the complainant had not experienced
before.
This time around, the applicant had penetrated her with a penis. The
complainant’s version is that she found the
experience
extremely painful and traumatic to the point that she told the
applicant to leave her alone. Under cross-examination,
when asked why
she considered that particular rape to be traumatic, she explained
that as someone who was married to her mother,
the applicant was
expected to protect her and not rape her. It appears that overhearing
what she believed to be a discussion about
her between her mother and
the applicant is what prompted her to open up to her mother about the
rape the next morning. Given the
general tenor of her evidence, it is
not farfetched to infer that this may well have triggered the hope
that if she confided in
her mother about the incident, she would
stand up for her, as most mothers often do. In the complainant’s
own words, she
decided to get the matter ‘off her chest’.
Under those circumstances, I am unable to see anything wrong with the
12-year
old complainant eventually deciding to take a leap of faith
by informing her mother about how she had been violated by the
applicant.
[103]
During cross-examination, the complainant was confronted with the
contradiction of having previously stated, in a statement
made to the
police that the incident happened in the morning. Notably, the trial
court found that a basis for cross-examining her
about the statement
in question had not been laid by the cross-examiner. Furthermore, the
statement in question was not handed
up as an exhibit. The
circumstances under which the statement was obtained are not evident
from the record. We do not even know
whether she signed that
statement. Under such circumstances, I see no basis for concluding
that this is
an
instance where reliance cannot be placed on cases that justify
inconsistencies between statements made by witnesses to police

officers and evidence on the basis of a misunderstanding due to
language or cultural differences.
[32]
[104]
Barring minor contradictions relating to the applicant having been
clad in his pyjamas before the event and whether the room
was
illuminated or not, the complainant remained consistent about how the
rape was executed and about the conversation with her
mother in the
bathroom, during which she informed her about her ordeal. These minor
contradictions do not, in the context of this
matter, serve to
discredit the complainant as a witness, nor do they render her
evidence unsatisfactory. While they constitute
‘shortcomings’
[33]
in her evidence, they do not impinge on her honesty.
[34]
A
feature of her evidence that, in my
view, strongly attests to her honesty and reliability is that
even
in the heat of cross-examination, she
did
not try to portray the applicant as a monster. She openly professed
her love for both her mother and the applicant and acknowledged
that
she missed them.
[105]
Another important consideration anent to the assessment of the
complainant’s contradictions is that she was only 11
years old
when the applicant started to sexually abuse her. She was 12 years
old when the sexual abuse was revealed. By the time
she testified,
she was 13 years old. The very fact that the sexual abuse was
perpetrated by her own parent and the time lapse since
the offences
were committed are aspects that must be taken into account in order
to properly assess the reasonableness of any discrepancies
in the
complainant’s evidence. Given the facts of this matter, the
complainant’s inability to pinpoint the exact date
and the
lighting in the room when the offences were committed are not
material contradictions.
[35]
Thus, they ought
not
to lead to a rejection of her evidence as fabrication.
[36]
[106]
As stated before, the complainant stated that her parents often
quarrelled and fought. This was corroborated by Ms H, who
was a
friend to the complainant’s mother. Significantly, the
friendship between Ms H and the complainant’s mother was

confirmed by the applicant. That there was no bad blood between these
friends is evident from the fact that Ms H testified that
their
friendship continued beyond the applicant’s arrest on rape
charges. This was not disputed by the complainant’s
mother in
her evidence. The continuation of that friendship beyond the
applicant’s arrest dispels any notion of bad blood
between the
two families. With respect, the majority judgment’s finding
that there was animosity between the two families
failed to pay due
regard to this part of the evidence. It also failed to take into
account that ill-will as a basis for Ms H being
part of the
conspiracy was never put to her for comment.
[107] The majority judgment made specific reference to
the fact that the beds were two to three metres apart, noting that
the applicant
would have to move the younger sister who slept with
the complainant, in order for him to get to the complainant. Counsel
for the
applicant considered the proximity of the beds as an
indication of the improbability of the account given by the
complainant regarding
how the rape occurred. This contention fails to
take cognisance of three important considerations. First, there was a
cupboard
standing at the doorway, as a result of which the door
between the caravan and the adjoining room could not be closed. The
applicant
drew a sketch of the layout. As correctly observed by the
trial court, the applicant’s own words regarding the layout of
the caravan and the adjoining room was that it allowed the children
to get a measure of privacy. Second, the complainant testified
about
the misuse of alcohol in the family. This evidence stands
uncontested. Third, the complainant’s evidence that there
was
another bed in the caravan section was not disputed. It was only in
his evidence in chief that the applicant stated that dishes
were put
on that bed. A crucial piece of evidence from which it can be
inferred that the complainant did not always sleep with
her younger
sister on her bed is embodied in the following exchange between the
applicant’s counsel and the complainant speaks
for itself:
‘
Se gou vir my waar het jou klein sussie
geslaap altyd? ---Daar was nog ‘n bed in my ma-hulle se kamer.
Is dit nie waar dat jou klein sussie nie alleen wou slaap nie en dat
sy elke aand by jou geslaap het nie? --- Party aande wou sy
by my
slaap, ja.
Nou watse werk doen oom Y -- Hy is ‘n
bestuurder.’
[108]
While on this aspect of the close proximity of the beds in the
caravan occupied by the family, sight should not be lost of
the
unequal society that survives side by side in South Africa. A huge
section of the community lives in abject poverty in crowded
informal
settlements where families cohabit in cramped shacks as small as the
caravan in which the complainant lived with her family.
As pointed
out in
Bothma
,
child rape is found in all social classes, is widespread in this
country and no community is spared.
[37]
The close proximity of beds is a common feature in many households.
Such is the reality of life in South Africa. It is thus not
unheard
of that sexual abuse of a child is perpetrated in their own homes and
in the presence of someone who is in a position of
authority to the
child in question.
[38]
Unfortunately, in some of these instances, the incidents are
perpetrated by the partners of the persons
fulfilling
a parental role to the child.
[39]
[109]
The majority judgment is critical of the
circumstances in which the complainant disclosed the sexual assault
and rapes to Ms V.
The
complainant testified about this aspect in her evidence-in-chief. Her
evidence was not swayed by cross-examination. Further
details
concerning the disclosure of the sexual abuse were provided by Ms V.
[110]
At the time of the disclosure, Ms V was 17 years old, while the
complainant was 12 years old. Ms V’s younger sister,
T, was a
friend of the complainant.
The essence of
Ms V’s evidence is this. Ms V and her family resided at the
same caravan park where the complainant lived with
her family. She
was aware of a rumour doing the rounds at the caravan park, the
essence of which was that the complainant was molesting
the
complainant.
[111]
Ms V had last seen the complainant on Thursday afternoon. Seeing the
complainant with a blue eye on Friday morning prompted
her to ask her
how she had sustained it. The complainant initially told her that she
had sustained the injury at school. With the
knowledge that the
complainant did not have a blue eye on Thursday afternoon, she told
the complainant that she knew that she was
lying and asked her to
tell the truth. The complainant then told her that she sustained that
injury when the applicant slapped
her. The complainant then went to
school.
[112]
Ms V then phoned her mother, Ms H, to notify her about the fact that
the complainant had been assaulted by her father and
had sustained a
blue eye. Ms H in turn notified the caretaker of the caravan park, as
a result of which the social worker was summoned.
On the
complainant’s return from school, Ms V approached her and
pertinently asked her whether the applicant was molesting
her. The
complainant answered in the affirmative and told her about the sexual
assault and rapes. She informed the complainant
that the social
worker was on her way and that she would have to repeat the same
information. The complainant cried and pleaded
with her not to tell
her mother or the social worker about what she had told her. She
encouraged the complainant to confide in
the social worker. Upon the
social worker’s arrival, the complainant repeated her
experiences to her and this ultimately
led to the applicant’s
arrest.
[113]
Ms V’s evidence that the complainant spoke up about her sexual
assault and rape was corroborated by Ms H, who was a
friend to the
complainant’s mother.
The
social worker, too, confirmed that she was summoned to the
complainant’s home, where the complainant disclosed her the

sexual assault and rape to her. The complainant’s revelation of
sexual assault and rape
is
also
evident from the history recorded by the
nurse in the J88, which should be accepted as objective evidence.
Notably, the social worker’s
report also alluded to both the
rape and molestation. It is therefore erroneous to state that the
complainant’s evidence
‘vacillated between communication
of molestation only and of both molestation and rape’.
[114]
The majority judgment concluded that ‘all that was
communicated, according to Ms V, was sexual molestation and not
rape’. It also remarked that it was ‘strange’ that
Ms V had, under cross-examination, stated that she had not
seen a
blue eye on Ms V’s face on the morning following the chocolate
incident.
With respect, these conclusions are not
borne out by the record. Ms V explained that when she saw the
complainant on the day of
the chocolate incident, she had no injury.
She noticed the blue eye on the morning following the chocolate
incident. It is evident
that cross-examination on this aspect
commenced with the applicant’s attorney posing a compound
question to Ms V referring
to
both
molestation and rape.
‘Ek wil net seker maak. [X] het vir jou vertel dat
sy is
verkrag
. Hy
betas haar
. Het sy nog iets vertel?
[Translation: I just want to make sure. [X] told you that that she
was raped. He molested her. Did she
tell you anything else?] --- Sy
het net vir my daai vertel en toe se sy dat [Y] slaan haar baie’.
[Translation: She only
told me about that/those and then she told me
that [Y] beats her a lot]. (My emphasis.)
[115] He thereafter asked a series of other questions on
this aspect. The questioning on that aspect concluded with Ms V
repeating
a question of the cross-examiner. The trial court
interjected by asking her whether she agreed with the
cross-examiner’s
proposition. She answered in the negative. It
is clear that Ms V did not, at any stage, contradict herself on that
aspect. She
consistently stated that she had not seen the blue eye on
the day of the chocolate theft but had noticed it the next day when
the
complainant was on her way to school.
[116] The existence of the blue eye on the Friday in
question was corroborated by three witnesses, Ms V, Ms H and the
social worker.
The nurse who examined the complainant two weeks after
the incident recorded in the J88 that the complainant had informed
her that
her father had assaulted her, but that the bruise on her
face had healed.
[117] The majority judgment states that the ‘ill-will
between Ms V and her mother on the one side and the applicant on the

other, is a disturbing feature’ when consideration is paid to
the fact that Ms V had literally gone down on her knees alongside
the
complainant in order to elicit the disclosure of sexual
molestation.
[40]
It was also critical of the fact that, before telling Ms V that her
the applicant had assaulted her, the complainant had initially
said
she had fought at school. Sight must not be lost of the fact that the
complainant had, just the previous night, been severely
beaten by the
applicant. The lie could have been because she feared that the
applicant would assault her again if he learnt that
she had disclosed
the assault to outsiders. Viewed in the context of the whole
evidence, the lie she initially told ought not to
discredit the
complainant as a witness. It is trite that the fact that a witness
has lied about an aspect of evidence does not,
without more, lead to
the rejection of that witness’ entire evidence.
[41]
[118] Another significant aspect here pertaining to her
only confessing about sexual abuse after being probed is this. Child
rape
is, by its nature, ‘frequently characterised by secrecy
and denial’.
[42]
The complainant’s initial reluctance to speak out about the
sexual assault and rape may simply have been due to the fact
that she
was not yet ready to reveal everything to an outsider.
[43]
The strong bond the complainant had with the rest of her family is
evident from the record. The complainant repeatedly stated that
she
did not want to ruin her parents’ relationship.
Given those strong family ties, it is therefore not surprising that
she would
not readily disclose her home situation to an outsider.
[119] The dilemma the complainant faced after her
confession, expressed through her tearful pleas to Ms V not to tell
her mother
or the social worker is not difficult to understand. As
correctly acknowledged in a plethora of judgments, relating a rape
incident
to different persons entails reliving the encounter and is
often traumatic for the victim.
[44]
It is not unusual for someone who is traumatised to cry. In this
matter, the complainant cried several times during the proceedings

and explained that she found the incident traumatic and was trying to
block it out of her memory. Her tears, after informing Ms
V about her
ordeal must be seen against that background. That she cried even more
when she was told that her mother and the social
worker were going to
be informed is also not hard to explain in the context of evidence
that is seen as a mosaic.
[120] The shame and guilt that is often experienced by
child rape victims at the thought of
relating
and repeating the sad and sordid details of their sexual abuse to
others
was acknowledged in
Director
of Public Prosecutions, Transvaal
.
[45]
Ms V was an outsider. So, too, was t
he
social worker. But perhaps a bigger challenge for the complainant was
the realisation that her mother was about to find out that
she had
informed an outsider about a closely guarded family secret. Given the
strong family ties, she was, in all probability,
ashamed to face her
mother because she considered her disclosure to be a betrayal of her
family.
[46]
She obviously realised that her revelation would also show that her
mother had failed to intervene.
The
contradiction between the complainant’s evidence and that of Ms
V on whether she had informed her mother about the sexual
assault and
rape
must therefore be viewed in that
light. On this aspect, a major consideration is that the
complainant’s mother did not refute
the social worker’s
evidence regarding her failure to deny that the complainant had told
her about the rape. In my view,
that contradiction can therefore
not
impact so adversely on the quality of her evidence that it renders
her entire testimony as unreliable or untruthful.
[47]
On the contrary, her
initial reluctance to
disclose the physical assault, her uneasiness about disclosing the
sexual assault and rape, and her reaction
after confessing to her are
aspects that serve to show her innocence, thereby dispelling any
notion of a conspiracy. In my view,
there is simply no room for
regarding her reaction as bolstering the applicant’s claim of a
conspiracy to falsely implicate
him.
[48]
[121
] It remains
to consider whether the applicant’s version, weighed against
the complainant’s credible account, was reasonably
possibly
true. In his evidence, the applicant asserted that the complainant’s
averments were fabricated. He stated that Ms
H and Ms V had conspired
with her to falsely implicate him. He alluded to several aspects
which collectively constituted a motive
for falsely implicating him.
He described the complainant as a ‘problem child’ who
resisted discipline. This problem
started because the complainant was
unable to adjust to having a sibling after the birth of her younger
sister. He testified that
since the complainant started associating
with Ms V and her sister, her ill-discipline worsened, as she started
to emulate their
bad behaviour by smoking and drinking. Due to this
bad behaviour, he had barred the complainant from associating with
them. The
complainant, Ms V and her sister were unhappy about his
intervention. This, according to the applicant, was one of the
reasons
why the complainant had decided to conspire with Ms H’s
family against him.
[122] He further testified that Ms H
also had a personal grudge against him on account of him having
agreed to take Ms V and
her sister to the police station and
thereafter to a social worker, to lodge a complaint of assault
against her (Ms H). A couple
of weeks after this incident, the
complainant, with the collaboration of Ms H’s family,
fabricated false allegations of sexual
assault and rape against him.
When asked by his counsel about the blue eye allegedly sustained by
the complainant, he stated that
the complainant was always involved
in fights at school and came home bruised. He stated that when her
mother asked her about it,
she had said that she fought at school.
All of this was never put to the complainant for her comment. I find
it odd that his counsel
would leave this crucial aspect out of his
cross-examination when he had been meticulous enough to question the
complainant about
the fact that she had stolen sweets when she was
much smaller. My conclusion is that the reason why all these aspects
were not
put to the complainant during cross-examination was simply
because they never happened.
[123] The applicant admitted that
when the social worker suggested that the complainant step outside so
that they could discuss
the matter in private, he had signalled to
the complainant to refrain from disclosing anything to the social
worker, by putting
his finger on his lips. His explanation for doing
so was that he did not want the complainant to be taken away from
their home.
The explanation proffered makes no sense, given that the
complainant was, on the applicant’s version, a “problem
child”
who resisted discipline and had even gone to the point
of making false allegations against him.
[124]
One would have expected that if the complainant had indeed been a
difficult child, the applicant would, long before this incident,
have
invited the social worker to his home for an intervention, just like
he had done when he, on Ms H’s request, summoned
a social
worker to her home. He had seen for himself that in that instance,
the social worker had intervened without taking Ms
H’s children
away from their home.
[125]
As regards the applicant’s assertion that the complainant’s
mother had told him that the complainant had returned
home ‘bruised
and bloodied’, it is difficult to imagine a caring mother not
going to her child’s school to investigate
why she was coming
home in that state or at least asking for assistance from a social
worker who had already assisted the family
when it faced financial
hardships. On probabilities, the only reason why the applicant
signalled to the complainant to keep quiet
when she was walking out
with the social worker was to discourage her from revealing his
deeds, knowing that they constituted serious
offences.
[126]
This brings me to the majority judgment’s acceptance that Ms H
and her family bore a grudge against the applicant and
that this may
be behind the conspiracy of falsely implicating the applicant. In my
view, this conclusion fails to take into account
that the nub of the
applicant’s version about why each family member bore a grudge
against him was not put to Ms V and Ms
H for comment. The existence
of the so-called conspiracy was also not put to the complainant for
her comment. The applicant’s
failure to put his version to the
complainant, Ms V and Ms H for comment is not without consequences,
as it related to the crux
of his defence.
[127]
The legal implications of a failure by a party cross-examining a
witness to put up their version to witnesses who have testified
were
articulated by the Constitutional Court as follows in
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
:
[49]
‘[61] The institution of cross-examination not only constitutes
a right, it also imposes certain obligations. As a general
rule it is
essential, when it is intended to suggest that a witness is not
speaking the truth on a particular point, to direct
the witness’
attention to the fact by questions put in cross-examination showing
that the imputation is intended to be made
and to afford the witness
an opportunity, while still in the witness box, of giving any
explanation open to the witness and of
defending his or her
character. If a point in dispute is left unchallenged in
cross-examination, the party calling the witness
is entitled to
assume that the unchallenged witness’s testimony is accepted as
correct. This rule was enunciated by the House
of Lords in
Browne
v Dunn
(1893) 6 R 67 (HL) and has been adopted and consistently
followed by our courts.
[62] The rule in
Browne v Dunn
is not merely one of
professional practice but is “essential to fair play and fair
dealing with witnesses”. [See the
speech of Lord Herschell in
Browne v Dunn,
above.] . . .
[63] The precise nature of the imputation should be made clear to the
witness so that it can be met and destroyed . . . particularly
where
the imputation relies upon inferences to be drawn from other evidence
in the proceedings. It should be made clear not only
that the
evidence
is
to be challenged but also
how
it is to be
challenged. This is so because the witness must be given an
opportunity to deny the challenge, to call corroborative
evidence, to
qualify the evidence given by the witness or others and to explain
contradictions on which reliance is to be placed.’
It
is abundantly clear that the applicant’s cross-examination did
not meet the standard laid down in the passage above.
[128]
The existence of a conspiracy is, in any event, dispelled by various
aspects of evidence. Had the complainant been hell-bent
on laying
trumped up charges against the applicant, as he claimed, she would
simply have indicated certain dates as those on which
the deeds were
perpetrated. She did not do so and was honest enough to say that she
could not remember the specific dates. Furthermore,
if the
complainant and Ms V had indeed conspired to falsely implicate the
applicant, they would have rehearsed their evidence so
as to
eliminate any possibility of contradiction in their evidence.
[129]
Moreover, it is difficult to understand why Ms V would bear a grudge
against the applicant for responding positively when
she and her
sister requested him to take them to the police station after their
mother had assaulted them. On this aspect, it bears
mentioning that
the applicant’s willingness to transport Ms V and her sister to
the police station on account of their mother
having assaulted them,
is incompatible with the applicant’s evidence regarding how he
disliked them due to their bad behaviour.
In any event, if Ms V
indeed wanted to falsely implicate the applicant she, being much
older and more mature than the complainant,
would probably have taken
it upon herself to lay charges of indecent assault against the
applicant, instead of taking a chance
of luring the applicant’s
own step daughter to falsely implicate him. This is more so because
during her evidence, she stated
that the applicant had, on a few
occasions, fondled her breasts and touched her private parts.
[130]
As for Ms H, the applicant’s counsel expressly acknowledged,
during Ms H’s cross examination, that she was indeed
a friend
to the complainant’s mother. Ms H’s evidence that her
friendship with the complainant’s mother still
continued after
the applicant’s arrest, was not disputed. Surely, the
complainant’s mother would not have continued
to associate with
Ms H after realising that she was part of a conspiracy to falsely
implicate the applicant. It is clear that the
applicant’s
version relating to the State witnesses’ motive for falsely
implicating him was nothing else but a ruse.
Considering the body of
evidence adduced by the State witnesses, the trial court correctly
took a dim view of his failure to present
his conspiracy theory to
all the alleged conspirators. It’s finding that he was an
evasive witness is also borne out by the
record.
[131]
The applicant called the complainant’s mother as a defence
witness. It is quite curious that she did not, despite having
heard
the complainant’s version,
[50]
deny that the complainant had ever informed her about the rape.
Notably, she also did not, in her laconic account of events, testify

about the complainant’s alleged failure to adjust to the fact
that she was no longer an only child; the alleged ill-discipline
she
exhibited by stealing and being generally rebellious over the years;
about her ill-advised association with Ms H’s daughters
and
that on the day of the theft of chocolates, she had returned from
school bruised and bloodied and had told her that she had
been in a
fight at school. Although this evidence would have corroborated the
applicant’s version, she did not mention any
of those things.
This is quite telling. What is also striking is that the
complainant’s mother also did not try to refute
the evidence of
the social worker about her not having denied that the complainant
had told her about the rape. The social worker
was an independent
witness and could not have had any motive to make a false allegation
about the complainant’s mother. These
are all aspects that the
trial court took into consideration.
[132]
The majority judgment
[51]
finds that the complainant was ‘careful to make the time of the
rape in the caravan coincide with the time that the applicant
would
have been off work, in the morning’. There is no basis for this
conclusion, given the fact that the applicant’s
own version was
that he would sometimes be off duty over weekends, which obviously
meant that he would have been home both in the
morning and at night.
[133]
The majority judgment further states that the complainant was deeply
aggrieved by the beating and concludes that ‘she
had reason to
implicate him’. I disagree with this point of view. It must be
borne in mind that the applicant’s version
was that he only
smacked the complainant on her buttocks and was not responsible for
the blue eye that she sustained. Notably,
the complainant’s
assertion that the applicant had previously chastised her (‘n
pak slae gegee) was not denied by the
applicant. As correctly stated
by the trial court, it would simply defy logic for the complainant to
feel so aggrieved by being
smacked on the buttocks that she would
falsely implicate the applicant, when she had previously not taken
chastisement by her uncle,
grandfather and the applicant personally.
[134]
In any event, if the severe beating was indeed the motive for falsely
implicating the applicant, the probabilities are that
the complainant
would not have shown any reluctance before telling Ms V that the
applicant had molested and raped her. The complainant’s
initial
reluctance to disclose both the assault and the molestation and rapes
to Ms V and later to the social worker dispels any
notion of a
conspiracy to falsely implicate the applicant. In my view, the
version of the applicant, unsupported by the evidence
of his own
witness, cannot stand.
The
trial court correctly found that the State had proven its case
against the applicant beyond reasonable doubt.
[135] Having considered all the
circumstances of this case, I am of the respectful view that the
majority judgment’s harsh
criticism of the complainant’s
evidence arises from viewing bits and pieces of evidence in isolation
despite the trite principle
that a court’s conclusion must
account for all the evidence.
[52]
[136] Having had the benefit of the conspectus of the
record, it is clear that the trial court’s verdict was based on
a careful
analysis of all the evidence that was adduced during the
trial.
The trial court had the
benefit of observing the complainant and the other witnesses during
their testimony. Its credibility findings
in respect of all the
witnesses are borne out by the record.
On
appeal, the court a quo found that the credibility findings it made,
cannot be faulted.
[53]
I agree. Since the finding
and
decision of the trial court in respect of the counts of which the
applicant was convicted were not vitiated by any misdirection
or
erroneous findings,
[54]
there is no basis for setting aside the decision of the court a quo.
[137] Before I conclude, I am constrained to comment on
the following passage from the majority judgment:
‘
No wonder then that the foster mother, who
was called by the State, in aggravation of sentence, and who had
lived with her for a
few years, testified that she had told her that
she had accused the applicant to get her own back at him. This
evidence, of course
was not available to the magistrate before
conviction. Neither was the evidence of the foster mother that she
bragged publicly
about how she had stolen sweets.’
[55]
It
is clear from the foregoing extract that the majority judgment
accepts the foster parent’s evidence as corroboration of
the
applicant’s evidence.
[138]
It bears mentioning that the foster mother testified that she had, on
several occasions, interacted with the complainant’s

grandmother, who happens to be the applicant’s biological
mother. As the foster parent testified after the applicant’s

conviction, this obviously means that the trial court reached its
verdict before her evidence was adduced. In his heads of argument,

counsel for the applicant implores this court to accept the foster
parent’s evidence using its ‘power to review option’.

The majority judgment has not pronounced itself on this request. It
is therefore necessary for me to underscore the principles
that this
Court and the Constitutional Court have laid down in relation to the
acceptance of ‘fresh evidence’ that
comes to light after
judgment.
[139]
The following warning sounded by this Court in
Colman
v Dunbar
[56]
still
rings true today:
‘
To allow fresh evidence on a point which
calls in question evidence already led would necessitate a rehearing
of the witnesses whose
evidence is questioned, so as to give them an
opportunity of answering the fresh evidence. This means that the case
would be largely
reopened which militates against finality. . . .’
In
S v Wilmot
,
[57]
this court aptly stated as follows:
‘
Accordingly
the power to hear new evidence on appeal or to remit a matter to a
trial court to hear such evidence will be sparingly
exercised and
only when the circumstances are exceptional.
A
further factor which weighs against the exercise of the power of
remittal is the possibility of fabrication of testimony after

conviction and the possibility of witnesses being bribed to retract
evidence given by them’.
The
foregoing sentiments succinctly lay bare the prejudice that would be
suffered by the prosecution in this matter if this Court
were to
accept the foster mother’s evidence on appeal.
[140]
In
Rail Commuters
Action Group and Others v Transnet Ltd t/a Metrorail and Others
,
[58]
the Constitutional Court stated the following:
‘
[41]… Important criteria relevant to
determining whether evidence on appeal should be admitted were
identified in
Colman v
Dunbar
. Relevant criteria include
the need for finality, the undesirability of permitting a litigant
who has been remiss in
bringing forth evidence to produce it
late in the day, and the need to avoid prejudice. One of the most
important criteria was
the following:
“
The
evidence tendered must be weighty and material and presumably to be
believed, and must be such that if adduced it would be practically

conclusive, for if not, it would still leave the issue in doubt and
the matter would still lack finality."
. . .
[42] In
Van
Eeden v Van Eeden
, the Cape High
Court held that it was well established that the court's powers as
derived from s 22
(a)
of
the Supreme Court Act should be exercised sparingly. The court
held, further, that in that case the additional evidence
related to
facts and circumstances which had arisen after the judgment of the
court
a quo
.
This raised the question whether it was competent for the court, in
the exercise of its power under s 22
(a)
,
to receive such evidence or to authorise its reception. Comrie J held
that the section did not include any express limitation
which would
exclude the reception of the evidence then sought to be tendered and
that the court exercising appellate jurisdiction
had a discretion
whether or not to allow the evidence to be admitted, which discretion
should be exercised sparingly and only in
special circumstances. From
time to time, he held, cases did arise which cried out for the
reception of post-judgment facts.
[43] In my view, this approach is correct. The
Court should exercise the powers conferred by s 22 “sparingly”
and further
evidence on appeal (which does not fall within the terms
of rule 31) should only be admitted in exceptional circumstances.
Such
evidence must be weighty, material and to be believed.’
(Footnotes omitted).
[141] It is clear that the evidence of the foster mother
does not meet any of the requirements mentioned in the foregoing
paragraphs.
Furthermore, it is noteworthy that in one of her answers
under cross-examination, she described the phrase ‘getting
back’
at the applicant as wanting him ‘to take
responsibility’. She, in the same breath, testified that the
complainant often
cried, stating that she did not understand why her
mother was taking the applicant’s side when she had actually
informed
her about the applicant’s deeds. Self-evident from the
foster mother’s evidence is that the complainant never
disavowed
the legitimacy of the sexual assault and rape charges she
laid against the applicant. Under those circumstances, it would be
wrong
to ignore the parts of her evidence that are in favour of the
complainant and to focus only on what is favourable to the applicant.
[142]
It is also of significance that the applicant’s heads of
argument acknowledge that the foster mother contradicted the

testimony she had given earlier. Clearly, her contradictory evidence
is not conclusive on any issue. Her testimony is incapable
of
affecting the outcome of the trial as the State did not rely on any
part of it in convicting the applicant. Given the principles
laid
down in all the authorities mentioned in paragraphs 133 to135 of this
dissent, the ineluctable conclusion is that the foster
parent’s
testimony ought not to be accepted by this Court as ‘fresh
evidence’ that came to light after the verdict.
Doing so would
impermissibly elevate the foster mother’s evidence to
corroboration of the applicant’s version.
[143]
For all the reasons mentioned above, I am of the view that the court
a quo
correctly dismissed the appeal that served before it. In this Court,
the applicant has not laid a basis for the granting of special
leave
to appeal. I would therefore dismiss the application for leave to
appeal.
________________________
M B MOLEMELA JA
JUDGE OF APPEAL
Appearances
For
applicant: A Pretorius
Instructed
by: JG Kriek & Cloete Attorneys, Bloemfontein
For
respondent: A Simpson
Instructed
by: Director of Public Prosecutions, Bloemfontein
[1]
Section 5(1) reads as follows:
‘A
person (“A”) who unlawfully and intentionally sexually
violates a complainant (“B”), without
the consent of B,
is guilty of the offence of sexual assault.’
[2]
Section 3 provides:
‘Any
person (“A”) who unlawfully and intentionally commits an
act of sexual penetration with a complainant (“B”),

without the consent of B, is guilty of the offence of rape.’
[3]
M du Plessis, F Pheiffer, W Smith-Müller & J Luther (eds)
Pharos
Afrikaans-Engels English-Afrikaans Woordeboek
Dictionary
(2010) at 447.
[4]
‘Was dit twee maande of drie maande of ses maande voor julle
getrek het? --- Ek kan nie onthou nie.’
[5]
Van Wyk v S, Galela v S
[2014] ZASCA 152
;
[2014] All SA 708
(SCA);
2015 (1) SACR 584
(SCA) para 21.
[6]
S v Jackson
1998
(1) SACR 470
(SCA) at 476.
[7]
Woji v Santam Insurance Company Ltd
1981 (1) SA 1020
(A) at 1021.
[8]
Matshivha v S
[2013] ZASCA 124
;
2014 (1) SACR 29
(SCA);
[2014] 2 All SA 141
(SCA)
para 24.
[9]
S v Vilakazi
2009 (1) SA SACR 552 (SCA)
[2008] ZASCA 87
;
(2012 (6) SA 353
;
[2008] 4 All SA 396
para 21.
[10]
S v De Beer,
an
unreported case of the SCA,
case no
121/04 (12 November 2004).
[11]
Ibid para 18. See also
S v Matyityi
[2010] ZASCA 127
;
[2010]
2 All SA 424
(SCA);
2011 (1) SACR 40
para 10.
[12]
[2009] ZACC 8
;
2009 (4) SA 222
(CC);
2009 (2) SACR 130
(CC);
2009 (7) BCLR 637
(CC) paras 105-106.
[13]
R v Dhlumayo and Another
[1948]
2 All SA 566
(A);
1948 (2) SA 677
(A) at 705-706. See also
S
v Francis
1991 (1) SACR 198
(A) at 204C-E.
[14]
Naidoo v The State
(333/2018)
[2019] ZASCA 52
(1 April 2019)
para 46.
[15]
Ibid.
[16]
Paragraph 104.
[17]
S v Shilakwe
[2011] ZASCA 104
;
2012 (1) SACR 16
(SCA) para 11.
[18]
See
S v Van der Meyden
, cited and approved in
S v Cornick
and Another
[2007] ZASCA 14
;
[2007] 2 All SA 447
(SCA) at para
42;
S v Hadebe and Others
1998 (1) SACR 422
(SCA) at 426E-H.
[19]
S v Chabalala
2003 (1) SACR 134
(SCA) para 15.
[20]
S v S
1995 (1)
SACR 50
(ZS) at 59H-I and 60A-C.
[21]
J Hopper and D Lisak
Why
Rape and Trauma Survivors have Fragmented and Incomplete Memories
Time Magazine (2014).
Biographies
as provided in the article: ‘
James
Hopper, Ph.D., is an independent consultant and Instructor in
Psychology in the Department of Psychiatry at Harvard Medical

School. He trains investigators, prosecutors, judges and military
commanders on the neurobiology of sexual assault. David
Lisak,
Ph.D., is a forensic consultant, researcher national trainer and the
board president of 1in6,
a
non-profit organisation that provides information and services to
men who were sexually abused as children.’
[22]
Bothma v Els and Others
[2009] ZACC 27;
2010 (2) SA 622 (CC); 2010 (1) SACR 184 (CC);
2010 (1) BCLR 1 (CC).
[23]
Ibid.
[24]
S v Artman and Another
[1968] 3 All SA 408
(A);
1968 (3) SA 339
(A) at 341. See also A
Kruger
Hiemstra’s Criminal
Procedure
(May 2019, online) at 24-41,
where t
he following is stated: ‘Today, child evidence
is approached with subtlety and sensitivity, not formally and
stereotyped
according to the standard cautionary rule but with an
acknowledgement of the specific circumstances of each case.
Presiding officers
should have a particular awareness of the nature
of the case and the attributes of the witness. No fixed rule exists
any longer.’
[25]
Majority judgment para 11.
[26]
S v Cornick
note 18 above.
[27]
See K M
ü
ller
‘
The Judicial Officer and the Child
Witness’ (2002) 148. Also see J J A Key ‘The Child
Witness: The Battle for Justice’
(1988) 241
De
Rebus
54 at 55.
[28]
This seems to have been based on the fact that the medical report
stated that she had not sustained injuries to her genitalia.
The
applicant’s expert witness, Dr Wagner, placing reliance on the
hymen morphology of a 12 year old, testified that it
was unlikely
that the complainant had been vaginally penetrated as the hymen was
still intact. This evidence was speculative.
A study done by experts
has shown that
using hymen morphology to
determine sexual history is not reliable. See R Mishori et al ‘The
little tissue that couldn’t
– dispelling the myths about
the Hymen’s role in determining sexual history and assault’
(2019) 16(1)
Reproductive Health
74.
[29]
Majority judgment para 59.
[30]
Ibid para 60.
[31]
The complainant’s evidence pertaining to
the alcohol abuse within her household and the fights between the
applicant and
her mother was corroborated by a neighbour, Ms H.
[32]
Majority judgment, para 58.
[33]
S v Sauls
and
Others
.
[34]
S v Oosthuizen
[1982] 4 All SA 245
(T);
1982 (3) SA 571
(T)
at 516A-B;
S v Mafaladiso en Andere
[2002] 4 All SA 74
(SCA);
2003 (1) SACR 583
(SCA) at 594A-F
.
[35]
S v Mkohle
[1990] 3 All SA
1087
(A);
1990 (1) SACR 95
(A)
at 98F-G
.
[36]
Compare
Mocumi
v The State
(2015)
ZASCA 201
para
20
.
[37]
Bothma
para 46.
[38]
The Director of Public Prosecutions, Grahamstown v Mantashe
[2020] ZASCA 5
para 15.
[39]
Ibid.
[40]
Majority judgment para 65.
[41]
See
S v
Oosthuizen
,
note 34 at 576G.
[42]
Bothma
para 46.
[43]
Compare
Hewitt v S
[2016] ZASCA 100; 2017 (1) SA 309 (SCA).
[44]
See
Director of
Public Prosecutions, Transvaal
note 12
above.
[45]
Ibid.
[46]
E H Weiss and R F Berg
‘Child
Psychiatry and Law –
Child
Victims of Sexual Assault Impact of Court Procedures
’
(1982) 21(5)
Journal of the American Academy of Child Psychiatry
513 at XXX. In this article the authors
opine
that the most common reaction of the victims of child rape is ‘deep
guilt feelings’ about ‘the trouble
they caused the
family’. According to them, the emotional reactions suffered
by those victims are often prolonged or intensified
whenever legal
proceedings are involved.
[47]
Naidoo v The State
(333/2018)
[2019] ZASCA 52
(1 April 2019)
para 51.
[48]
See S v
Cornick
, note 18 above. In
that matter, the complainant had not told her own parents or
grandparents, with whom she was staying, about
the rape. The
complainant in that matter was 14 years old at the time of the rape
and reported the matter to the authorities
about 19 years after the
incident. The secrecy about the rape and the delay in reporting it
were not considered to have any bearing
on her credibility.
[49]
2000 (1) SA 1
(CC);
1999 (10) BCLR 1059
(CC) paras 61-63.
[50]
The record shows that she was present in court when the complainant
testified.
[51]
Majority judgment para 56.
[52]
S v Van der Meyden
1999 (1) SACR 447
(W) at 449f –
450a, cited and approved in
S v Van Aswegen
2001 (2) SACR 97
(SCA).
[53]
K v S
[2018] ZAGPPHC 330 paras 11 and 29.
[54]
Ibid.
[55]
Majority judgment para 67.
[56]
1933 AD 141
at 161.
[57]
2002 (2) SACR 145
(SCA) 42 para 31
[58]
[2004] ZACC 20
;
2005 (2) SA 359
(CC).