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[2024] ZAKZPHC 96
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Chetty v S (AR221/2022) [2024] ZAKZPHC 96 (10 January 2024)
IN
THE
HIGH
COURT
OF
SOUTH
AFRICA
KWA-ZULU
NATAL
DIVISION,
PIETERMARITZBURG
Case no.:AR221/2022
In the matter between:
SIVAJI
GONASEN CHETTY
APPELLANT
and
THE
STATE
RESPONDENT
Delivered:
This judgment was handed down electronically by
circulation to the parties' legal representatives by
email. The date and time for hand-down
is deemed to be 12h30
on 10 January 2024
ORDER
The appeal against the
conviction in respect of both counts is dismissed.
JUDGMENT
Delivered
on:
10
January
2024
S. Singh AJ et Hadebe
J (concurring)
Introduction
[1]
The
appellant
was
convicted
of
one
count
of
rape
of
a
minor
child
in
contravention of s 3 of the Criminal Law (Sexual Offences and Related
Matters) Amendment Act 32 of 2007 ("the Act")
and one count
of sexual assault of a minor child in contravention of s 5(1) of the
Act. This appeal is against the conviction only.
He was legally
represented, pleaded not guilty to both counts, testified and led
witnesses in his defence.
[2]
The appellant was
sentenced to 15 years' imprisonment on
count 1 of which seven years was suspended for five years on
condition that he does not contravene
s 3 of the Act by committing
the same offence during the period of suspension. He was sentenced to
six years' imprisonment on count
2 which was ordered to run
concurrently
with
the sentence in count 1.
Grounds of appeal
[3]
The
appellant
raised
two
points
in
/imine.
(a)
The first issue for determination on appeal
is the procedural irregularities allegedly committed by the court a
quo
which,
according to the appellant, rendered the complainant's evidence
inadmissible. The argument in this regard is that the court
a
quo
made a finding that the young
complainant understood the meaning of the oath and the affirmation
without the court having mentioned
the word oath in determining
whether the witness understood the nature and import of the oath.
(b)
The second issue is that the court a
quo
did not treat the complainant's
evidence with caution.
[4]
It is not in dispute that the complainant
was a victim of rape and sexual assault. The identity of her
perpetrator, whom she said
in her evidence in the court a
quo
was the appellant, her great
grandfather, is disputed by the appellant. However, the appellant
confirmed during cross-examination
that the complainant knows who
raped her.
[5]
The
further
grounds
of
appeal
are
that:-
(a)
The
State
relied
on
the
evidence
of
a
single
witness,
the
five-year-old
child,
and the court a
quo
was
obliged to treat her evidence with caution which the court
a
quo
allegedly failed to do
sufficiently. Regardless of her age, the State had to prove
commission of the offences against the complainant
beyond reasonable
doubt. It is further alleged that the court a
quo
applied a lesser test in the case
against the appellant because the complainant was a young child, and
intervened
in
the
cross-examination
of
the
complainant
by
reminding
the
appellant's counsel that she is a young child and that he needs to
curtail his cross-examination, and to get to his defence
instead of
asking questions not understood by her.
(b)
The appellant avers that the child witness
was not a reliable and credible witness, that the court
a
quo
erred in rejecting his version and
accepting the evidence of the State and in the circumstances, he did
not have a fair trial. The
appellant avers, further, that the
complainant testified in her evidence-in-chief of only being raped
and sexually assaulted on
the sofas in the house, which is what she
also pointed out to the police. However, when confronted during
cross-examination on
her police statement, she said it happened in
the wendy house as well.
[6]
The points
in
limine
raised by the appellant are
neither plausible nor legally correct. In terms of s 164(1) of the
Criminal Procedure Act 51 of 1977
("the CPA") unsworn or
unaffirrned evidence is admissible in respect of a child witness who
may not understand the nature
and import of the oath or affirmation,
and such a witness may be permitted to testify in criminal
proceedings provided that in
lieu of the oath or affirmation, such a
witness must be admonished by the presiding judicial officer to speak
the truth. This was done by the court a
quo.
The
court
a
quo
did not mention the word 'oath' and did
not interfere with the defence or their evidence. The complainant was
also questioned in
great detail, which included whether she
understood the difference between the truth and lies to which the
complainant responded
that she understood same. The court a
quo
was satisfied with her competency. The
complainant, in the view of this appeal court, was correctly found by
the court a
quo
to
be compliant with the competency test and was a competent witness.
[7]
The cautionary rule relating to the
evidence of children has been dealt with in a number of cases
emanating from the superior courts
of South Africa including S
v
Jackson
1998 (1) SACR 470
(SCA)
and in
S v M
1999 (2)
SACR
548
(SCA)
at
554-555. However, the recent case of
Maila
S
[2023] ZASCA 3
is most relevant in
that it sets out the legal approach recently endorsed by the Supreme
Court of Appeal as stated hereunder:
'[17]
...
To
ensure that the evidence of a child witness can be relied upon as
provided ins
208
of the CPA,
[1]
this court stated
in
Woji
v Santam Insurance Co Ltd,
[2]
that
a court must be satisfied that their evidence is trustworthy.'
[18]
This court has, since
Woji,
cautioned
against what is now commonly known as the double cautionary rule.
[3]
It
has stated that the double cautionary rule should not be used to
disadvantage
a
child witness on that basis alone. The evidence of a child witness
must be considered as a whole, taking into account all the
evidence.
This means that, at the end of the case, the single child witness's
evidence, tested through (in most cases, rigorous)
cross
examination, should be "trustworthy". This is dependent on
whether the child witness could narrate their story
and communicate
appropriately, could answer questions posed and then frame and
express intelligent answers. Furthermore, the child
witness's
evidence must not have changed dramatically,
the
essence
of
their allegations should still stand.
Once
this is the case, a court is bound to accept the evidence as
satisfactory in all respects; having considered it against that
of an
accused person.
"Satisfactory
in all respects" should not mean the evidence line-by-line. But,
in the overall scheme of things, accepting
the discrepancies that may
have crept in, the evidence can be relied upon to decide upon the
guilt of an accused person. What this
Court in S
v
Hadebe
[4]
calls
the necessity to step back a pace (after a detailed and critical
examination of each and every component
in
the body of evidence),
lest
one may fail to see the wood for the trees.
[5]
This
position has been crystallised
by
the Legislature
in
s 60 of the Criminal Law
(
Sexual
Offences and Related Matters) Amendment Act 32 of 2007, which
provides that:
"Notwithstanding any
other law, a court may not treat the evidence of a complainant in
criminal proceedings involving the alleged
commission of a sexual
offence pending before that court, with caution, on the account of
the nature of the offence." (footnotes
included.)
The State's case
[8]
The complainant, who was the first State
witness, was six-years-old at the time when she testified in camera
in terms of s 170 of
the CPA. She testified in great detail that she
had been raped and sexually assaulted by the appellant on many
occasions. She also
demonstrated
same
by using the dolls in the court a
quo.
She testified that she reported same to
the social worker and to her grandmother. According to the
complainant's paternal grandmother,
she became aware that there were
problems after the complainant had been removed from the house of her
maternal grandmother and
of the appellant to stay with her. The
complainant would scream in her sleep. As a result, her grandmother
took her to the doctor.
[9]
The court a
quo
did allow the defence to continue
questioning the complainant, which is evident
from the trial transcript.
The further questioning
of the complainant included the denial by
the appellant that he used his finger and his private part (buli) in
her private part,
the complainant's
response was that his denial was not true.
[10]
In her response to the further
cross-examination by the defence counsel, the complainant revealed
that she had been admonished by
the appellant not to share what had
happened to her with anyone else. Inevitably this had led.to the
delayed reporting. The complainant's
version was well presented and
any discrepancies raised therein were cured when other witnesses
testified, including the appellant's
evidence which corroborated her
evidence materially as mentioned in this judgment.
[11]
The next witness was the paternal
grandmother. She testified that the complainant looked neglected and
sick when the complainant
was brought to her house by the social
worker, Ms Mthembu
in
June or July 2018 from the appellant's house. The complainant was
also scared, in a state of shock and she was teary. The social
worker
informed her that the version given to her (the paternal
grandmother), was the same as what the complainant had told her
in
private in the absence of the paternal grandmother. The complainant
was taken for a medical examination by the doctor at the
R.K. Khan
Hospital. The doctor informed the paternal grandmother that the
complainant had been tampered with sexually. The grandmother
opened a
case against the appellant and he was later arrested. As part of the
investigation the complainant
showed
the police the sofas where the molestation had taken place. This was
in the presence of the paternal grandmother.
[12]
Under cross-examination the paternal
grandmother
confirmed
that she asked the complainant why she screamed at night in her
sleep. The complainant explained what the appellant did
to her. There
was no mention about the wendy house but she said all these things
happened on the sofas. The paternal grandmother
said that sometimes
the appellant would be at his house with no
one else, as she would come to deliver food items for the
complainant's maintenance.
This would be sometimes at midday or in
the morning. She confirmed also that the complainant said that the
appellant penetrated
her with his penis many times.
[13]
When this witness went to the appeilant's
house with the police and the complainant, the paternal grandmother
confirmed having seen
other family members but she insisted that the
appellant's wife would not be there whenever she came to deliver the
food.
She further
confirmed her evidence of medical issues in respect of the
complainant and the treatments given to her at home and by
doctors
for same. All of these medical issues had developed whilst the
complainant resided at the appellant's house, according
to
information received from the complainant. She said she had a problem
with recollection of the dates when the complainant had
come to her
house and given her the information of what the appellant did to her.
She also could not recall the dates on which
she had taken the
complainant for medical treatment.
She
attributed this to her age. The relevant clinic medical card was
handed in as an Exhibit at the trial.
[14]
The medical doctor, Dr S Govender, who
examined the complainant testified next for the State. She explained
her examination and
her conclusions. She confirmed erosion of the
complainant's hymen, minimal tissue not with normal thickness for a
five-year-old
child. Her opinion was that, the examination of the
complainant, other than that, was basically a normal examination.
Those were
the only injuries she noted and her conclusion was that it
was consistent with vaginal' penetration. The J88 medico-legal report
was also handed
in
as
an exhibit at the trial. Under cross examination, the doctor
confirmed that the complainant's
injuries
were old injuries.
[15] The social
worker, Ms Mthembu, testified next for the State. She worked with
children in need of care and protection,
and those who were sexually
abused. She testified that she had received reports of abuse and
neglect of the complainant from the
school and the paternal
grandmother of the complainant. She took steps to remedy the issues
with the complainant by meeting her
parents and speaking to her
paternal grandmother. As a result of her intervention, the
complainant was removed from the home of
the appellant and his wife.
She was officially placed with her father's family on 6 June 2018
since the social worker was of the
view that she was not well cared
for at her mother's family.
[16]
The social worker received reports from the
paternal grandmother about the complainant's screaming in her sleep.
The paternal grandmother
told the social worker that the complainant
had told her that she was traumatised from the incidents at the
appellant's house.
The various incidents of rape and sexual assault
were reported later to the said social worker.
The information received was that the
complainant had not told anyone of the incidents at the time they
happened as she was scared
because the appellant had told her not to
tell anyone. Thereafter, the social worker referred her for medical
examination which
confirmed that the complainant had a history of
sexual abuse. Her school teacher also reported signs of neglect on
the complainant.
[17]
Under cross-examination, the social worker
confirmed the complainant's report of the of the sexual abuse by the
appellant which
took place in the wendy house, and that it was not
the first time that it happened there. According to Ms Mthembu, the
complainant
had memory issues so she never reported what happened on
the other days nor did she specify the wendy house as the place where
the sexual abuse took place. No medical proof was produced at the
trial to sustain the complainant's allegations of sexual abuse
on the
other children.
There
is, however, other evidence led at the trial, of the appellant
hugging, grabbing and kissing his grandchildren. The exact
examination of the children was not revealed in court. The
complainant was very scared, very withdrawn and not speaking. As per
Ms Mthembu, the complainant's removal from the house of the appellant
enabled her to report the incident albeit late. That was
the State's
case.
The appellant's case
[18]
The appellant testified as the first
defence witness. His version was that the complainant was his great
granddaughter
who
he brought up from the time she was a baby until she was removed from
his house. He testified that he is employed at Nev's Pest
control
since 2015, which was the position even when the allegations against
him surfaced. He gave contradictory versions of whether
the children
went to school or not. First, he said none of the children did go to
school, then he later changed this version to
indicate that one child
did go to school.
He
explained his work routine.
He
denied the allegations by the complainant against him. He said that
the wendy house was not separate but was part of his house.
He then stated that there are lots of sofas
in the house. He also confirmed that 'grandchildren' includes his
reference to the complainant.
[19]
Under cross-examination, the appellant
contradicted his evidence-in-chief in material respects
and materially
corroborated in part the evidence of the
complainant. He did not have any company records nor did he sign a
register for his various
work activities as alleged by him.
His evidence that his. place of work is in
Newlands was contradicted by his defence witnesses as being in other
areas.
He used
the company vehicle, the bus as well as the taxi to commute between
his house and his place of employment. His evidence
was that, even
when sick he would go to the hospital but return to work thereafter.
He stated further that even though the complainant's
grandmother
would see him on certain days at his home, this would only be after
18h30. He contradicted this later by saying that
he came home
straight from the hospital.
He
again changed that version by saying he would go to work from the
hospital.
[20]
The appellant blamed the paternal
grandmother for allegedly having forcefully taken the complainant to
her house against the complainant's
wishes. This version was never
put to the complainant or to her paternal grandmother.
He maintained that the complainant lied and
was schooled to implicate him.
He
contradicted his version of not giving the social worker information
of his work by later saying he cannot remember.
He admitted that he plays with the children
all the time and had, on occasion, been seen by the social worker
doing that.
After
admitting he was seen on two occasions
by
the social worker,
he
contradicted
that
by saying it was only once. His denial that he was never alone with
the children was contradicted by him when he said that
if he happened
to be alone at home, the children would be with him. He said there
were sofas also in the wendy house. He insisted
that the paternal
grandmother, the social worker, and the medical doctor were also
liars who gave false evidence in court. Of importance
is his evidence
that the complainant "knows who did it to her". This
version contradicts his evidence that the complainant
is lying, and
corroborates her evidence in so far as the identity of the
perpetrator is concerned.
[21]
Raksha
Ramsunder,
the appellant's
daughter,
testified
next
as
his
defence witness. She gave materially
contradictory evidence, including that she was certain of the days
he
would
be at home. She then said he worked every day and maybe took Sundays
off.
She
later
said
he
worked
seven
days
a
week
which
contradicts
the appellant's
version.
Another
contradictory
version
was
that one day
in
2018
the
appellant came home after going to the hospital. Raksha later changed
this version by saying the appellant on that day went
to work
directly from the hospital. She also said that
she
did
not know the name
of
the company
that
the appellant
worked
for.
She
insisted that she was the only one who fetched the children and took
them to school. She later changed to say that her mother
also took
the children to school and fetched them when she was not available.
In contradiction to
her
version that
the
complainant's maternal
grandmother
was
never
absent
from
home,
she
then
testified
that
the
maternal grandmother would be
absent
when she would have gone to hospital in the morning
and
would
return
when
the
children
had
arrived
from
school.
She further contradicted
the
appellant's
version
of
never
speaking
to
the
social
worker.
She introduced
new evidence that the appellant and the
social worker had actually
talked
to
each
other.On
the
issue
of
the
appellant
not
watching
television
with
the complainant,
she
testified
that
the
appellant
indeed
watched
television
with
the complainant and
that
the
complainant would always wait for the appellant before
going to sleep.
[22]
Under cross-examination the appellant's
daughter also contradicted his evidence in the following material
respects: She contradicted
earlier versions of his movements between
work, hospital and home. She kept silent when confronted by the State
on this. She also
remained silent when confronted by the State on
contradictory versions of being absent from home only when going to
the clinic
in 2018. She later changed her earlier version by saying
she took her eldest daughter, not the baby to the clinic. She gave
further
contradictory evidence on the bathing of the complainant, the
appellant's playing with the children in the presence of the social
worker Ms Mthembu by saying that the social worker lied.
But, she did not say that the appellant,
who agreed with the social worker's evidence, was also a liar. She
said further, in contradiction
to her evidence-in-chief, that the
appellant was not at the house sometimes when groceries were brought
by the child's paternal
grandmother, which is a further contradiction
to her several previous contradictions on this issue.
[23]
Krishna
Veni Chetty-Varandan, a co-employee of the appellant testified as the
last defence witness. In contradiction to the appellant,
she said he
worked in Westville. She had no recollection of his work activities
in 2018 because the company has no records. She
further said she took
him to hospital once or twice and she had never seen him thereafter
on that day. She contradicted the appellant's
version in regards to
the days she had taken him to hospital. She remained silent when
questioned about appellant's different versions
thereof but later
said that the appellant is not being truthful. She further said that
they work on Saturdays and no work is done
on Sundays, nor do they
have days off. She disputed Raksha's version about the appellants
movements between hospital, home and
work.
The legal position
[24]
A
court of appeal does not interfere with the factual findings of the
trial court unless such findings are misdirected, and clearly
incorrect. It is trite that the guilt of the appellant must be proved
beyond a reasonable doubt for a conviction by the trial court.
In
S
v Francis
1991 (1) SACR 198
(A) at 198J
-
199A, the
Supreme Court of Appeal held:
'The
powers
of
a
court
of
appeal
to
interfere
with
the
findings of
a
trial
court
are
limited.
In
the
absence
of
any
misdirection
the
trial
courts
conclusion,
including
its
acceptance
of
a
witness' evidence, is
presumed to be correct. In order to succeed on appeal, the appellant
must therefore convince the Court of
appeal on adequate grounds that
the trial court was wrong in accepting the witness' evidence - a
reasonable doubt will not suffice
to justify interference with its
findings. Bearing in mind the advantage which a trial Court has of
seeing, hearing and appraising
a witness, it is only in exceptional
circumstances that the Court of appeal will be entitled to
interfere with a trial court's evaluation
of oral testimony.'
[25]
Having considered the evidence, this court
finds no misdirection on the court a
quo's
findings that the State had proved the
allegations against the appellant beyond reasonable doubt. Though
being a single witness
in so far as the rape and sexual abuse is
concerned, the complainant came across as a credible witness. The
court a
quo
had
no reason to reject her evidence. She withstood extensive
cross-examination and she was not broken under same.
[26]
To a certain extent the evidence of the
other State witnesses, to wit the social worker Ms Mthembu, the
complainant's paternal grandmother
and especially the medical
doctor's evidence all go to corroborate the complaint's version of
the incidents. The appellant's
version
that the complainant was schooled to testify against him and that she
and her witnesses lied in their evidence against him
has no basis as
it was not supported by any factual evidence.
[27]
The appellant came across as an evasive
witness whose defence at the end of the day amounted to a bare
denial. His own witnesses
contradicted him on material aspects of his
work arrangements.
At
the end of the day what was clear was that all he did was try and
disassociate himself from ever having been alone in the house
with
the complainant.
Order
[28]
Consequently, I make the following order:
The appeal against the
conviction in respect of both counts is dismissed.
S SINGHAJ
I agree
HADEBE J
Appearances:
For the Appellant: Adv L.
Barnard
Instructed by: R.K.
Nathalal & Company (Verulam)
For
the Respondent: Adv C Nel
Instructed by: Director
of Public Prosecutions, Pietermaritzburg
Date of Hearing: 13
October 2023
Date
of Judgment: 10 January 2024
[1]
Section
208 provides: 'An accused may be convicted of an offence on the
single evidence of any competent witness'.
[2]
'Woji
v Santam Insurance Co
Ltd.
1981
(1) SA 1020
(A) at 102 8-
D.
Note the caution courts are advised to take note of when they
consider the reliability of a child witness in rape cases.
[3]
See
Vi/akazi
v
S
[2016]
ZASCA 103
;
2016 (2) SACR 365
(SCA) and cases cited therein.
[4]
S
v Hadebe and Others
1998
(1) SACR 422 (SCA).
[5]
Ibid
at 426F-H.