SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
[WESTERN CAPE DIVISION , CAPE TOWN ]
CASE NO: A143/2023
In the matter between:
ELWERADO McKENZIE Appellant
And
THE STATE Respondent
JUDGMENT HANDED DOWN ELECTRONICALLY ON 06 MARCH 2025
ADAMS, AJ
2
" At the southern tip of the continent of Africa, a rich reward is in the making …. This reward
will not be measured in money ....... It wi ll and must be measured by the happiness and
welfare of the children, at once the most vulnerable citizens in any society and the greatest of
our treasures. The children must, at last, play in the open veld, no longer tortured by the
pangs of hunger, or ra vaged by disease, or threatened with the scourge of ignorance,
molestation and abuse, and no longer required to engage in deeds whose gravity exceeds
the demands of their tender years. In front of this distinguished audience, we commit the new
South Africa to the relentless pursuit of the purposes defined in the World Declaration on the
Survival, Protection and Development of the Child."1
A. INTRODUCTION
[1] T his matter illustrate s why vulnerable child witnesses are entitled to the
constitutional and statutor y protect ion afforded to them when they testify and what
happen s when they are not adequately protected. Courts are under a constitutional
and statutory duty to ensure that the rights and best interests of child witnesses are
safeguarded during legal proce edings. This duty arises from both domestic and
international legal obligations.2
[2] The appellant was convicted in the Regional Court on one count of rape in
contravention of s3 of the Sexual Offences and Related Matters Amendment Act 32
of 2007 (SOR MA), and a further count of consensual sexual penetration of a child in
1 Extract taken from Nobel Peace Prize Acceptance Speech by Nelson Mandela on 10 December
1993
2 These include the Constitution of South Africa, the Criminal Procedure Act and the Children’s Act, a s
well as Regional a nd International treaties like th e UN Convention on the Rights of the Child (CRC)
and the African Charter on the Rights and Welfare of Children ( ACRWC)
3
terms of s15(1) of the same Act . The offence set out in count 1 attract s a minimum
sentence of life imprisonment by virtue of the provisions of section 51 (1), read with
Part 1 of Sch edule 2 of the Criminal Law Amendment Act, 105 of 1997 ("the Act"),
unless substantial and compelling circumstances are present .
The Court a quo could not find substantial and compelling circumstances and
consequently considered itself bound to impose th e minimum sentence of life
imprisonment in respect of count 1 and an additional six-year direct imprisonment on
count 2 which the Magistrate regarded as a proportionate punishment.
B. THE STATE’S CASE
[3] The state presented evidence of the complainant and his aunt . In addition,
the medical report(J88) setting out the observations and findings relating to
the medical examination of the complainant after the incidents occurred was
accepted into evidence by agreement between the parties .
3.1 The com plainant was 13 years old when the incidents occurred, and 15
years old when he testified.
3.2 The complainant testified about three incidents which occurred during
September and November 2014. Only the last two of these incidents were
considered by th e Magistrate in his judgment as they underpinned the
charges the appellant faced in the court a quo. For the sake of completeness,
I will refer in brief to all three incidents the complainant testified about.
4
3.3 The first incident occurred while the c omplainant was sleeping in the
home of his aunt and uncle . His aunt was called by the state as a witness.
The circumstance of the incident is not entirely clear as the complainant was
in a deep sleep, and he was thus unable to recount exactly what happene d.
3.4 The complainant was only able to recall that he felt the appellant’s
hand in his pants. The next morning, he had anal pain and discomfort, his
underpants was wet, and his tracksuit pants was damp. The incident occurred
while both he and the appel lant were sleeping in the same bed at the
appellant’s insistence even though separate beds had been allocated to them.
3.5 As indicated the two charges proffered against the appellant are
informed by the remaining two incidents. The rape as alleged in count two
happened when the complainant was invited to sleep over at his uncle’s
house. When he arrived, he found the appellant there, but he was not aware
that the appellant was also going to be there.
3.6 The evidence of the complainant is that the appellant told him to sleep in
the same bed as him. The appellant instructed the complainant to lay on his
side and switched off the room lights. Prior to switching off the light s, the
appellant took cream from a red and white bag with his surname on it. H e
smeared the cream on the complainant’s anus and inserted his penis. The
complainant told him to stop but the appellant continued until he ejaculated.
5
3.7 The complainant explained that he did not report the incident as he was
afraid of hurting his fami ly because this was the second time that he was
sexually violated and for that reason he also did not scream for help or raise
the alarm in some other way. He did not tell his uncle and aunt about the
incident even though they were in the same house.
3.8 The third incident happened a short while later. It was precipitated by a
call the appellant placed to the grandmother of the complainant requesting the
grandmother to send the complainant to appellant so that he could pray for an
upcoming exam the compl ainant would be writing .
3.9 The complainant complied with the request. At the home of the
appellant, the complainant was instructed by the appellant to lay next to him
on his bed. The appellant smeared olive oil on the complainant’s anus and
inserted hi s penis. The complainant did not say or do anything. The
complainant got ready to go to school and before he left the appellant gave
him R10.
3.10 The complainant’s evidence relating to the initial disclosure of these
incidents and who the disclosure was made to was slightly confusing. The
complainant indicated that he told both the school principal and his aunt as
the so -called first report. It appears from his later evidence that he became
confused with an earlier disclosure he had made to the principal in a matter
unrelated to this incident. In relation to this incident, he was confident that he
6
told his aunt.
3.11 He recounted the circumstances leading up to and including the way
the disclosure was made. The complainant informed his aunt of the incid ent
by way of a handwritten letter after she had a discussion with him. The
handwritten letter dated 14 November 2014 was the only way in which he felt
comfortable making the disclosure as he was not able to tell her in person.
3.12 The version of the a ppellant was put to the complainant during cross -
examination wherein the appellant denied the incidents and that the incidents
could not have happened as the complainant testified because the appellant
being a prophet in the church was precluded from sleep ing over at a
congregant’s home. In addition, the appellant disclosed an alibi that he was in
Ceres during the whole of September 2014.
3.13 In relation to the third incident , it was further put to the complainant that
at that time of day, the appellant’ s mother and another person would have
been at home and it was contended that for that reason t he incident could not
have happened .
3.14 Several questions were posed to the complainant which were quite
intrusive and unsuited to cross examination of a ch ild witness and these
7
aspects will be discussed along with some other concerns later in the
judgment.
3.15 The aunt confirms the version of the complainant in relation to the fact
that the appellant often slept over, she estimated at least six times. In
addition, she testified that it is at the request of the appellant who was a
prophet in their church, that the complainant would also sleep over when
he(appellant) was there. The church had several “prophets”, and the workings
of the prophets were unfamili ar to her and her husband.
3.16 In relation to the prohibition on sleepovers for prophets, th e aunt
testified that the appellant had told them that they should not tell anyone
about him sleeping over because prophets were not permitted to do so . In
addit ion, she confirmed the evidence of the complainant that her daughter
slept in the main bedroom with her and her husband, when the appellant and
the complainant slept over. There were double -bunk beds in the room and the
door was always closed when the comp lainant and appellant slept there.
3.17 She suspected that the a ppellant was molesting the complainant, and
she asked the complainant about the unrelated case as a means to make
subtle enquiries relating to her suspicion. She confirms that the complainan t
did not want to speak, and that he disclosed what happened in a letter she
identified in court. When the complainant wrote about the prophet, she knew
8
that it was the appellant because he was the only prophet who had slept over
at her house.
3.18 The aunt also explained the reason why she spoke to the complainant.
She had observed the occasions where the appellant and the complainant
would have slept in the same room. She was aware that the complainant had
been subjected to previous sexual abuse. She w as concerned due to the
rumors she had heard at church about the appellant. She had observed that
the complainant had huge respect for the appellant and trusted him as he
would a big brother or father figure. His face would glow when they spoke of
the appe llant.
3.19 The aunt showed the letter to her husband, the complainant’s uncle,
and they reported the matter a few days later, first to the complainant’s
parents, and later to the police .
3.20 She testified about a Friday evening when she , her husband and other
church members were in Ceres, and they bumped into the appellant. A n
arrangement was made for the appellant to sleep at their house the following
Saturday. On that Saturday the appellant and the complainant slept in her
daughter’s room. Her dau ghter M […] and another person named C […] slept
with her in the main bedroom. They left the church after they became aware of
the incident s.
9
3.21 Cross examination consisted of further denials and a repeat of the alibi
defense. I n response to a query as to why she allowed the appellant to sleep
over in a room with the complainant, when she was aware that he had already
been a victim of a sexual offence, she noted that they trusted the appellant.
C. THE APPELLANT’S CASE
[4] The appellant, his mot her and the person he sta yed with in Ceres testified on
his behalf.
4.1 In his testimony, the appellant repeated the bare denial of complicity in
the sexual violation of the complainant. The appellant denied any sleepovers
at the home of the aunt and unc le of the complainant but confirmed the
evidence of the complainant and his aunt to the extent that he confirmed that
after the complainant’s family joined the church, they became acquainted with
each other.
4.2 Additionally, he confirmed he visited the home of the complainant’s
aunt and uncle as t hey would invite each other for Sunday lunch es.
Furthermore, he confirmed that the complainant was included in the lunches
and that he spent time with the complainant , although they never really spoke.
He only stopped short of admitting sleepovers as he confirmed h is presen ce
at the home where the complainant alleges the incidents happened ,
something which was only revealed when he testified.
10
4.3 The impression created throughout the evidence for the state was that
the appellant never set foot at the home in question, that he only had fleeting
encounters with the family of the complainant and even less contact with him ,
even in the face of overwhelming and undisputed evidence to the contrary .
4.4 In additio n, important aspects not revealed to the state witnesses for
comment were disclosed when the appellant testified. These include
reference to WhatsApp messages received from the daughter of the aunt who
testified after the case was opened . The appellant said the WhatsApp
messages was an attempt to get him to say that he had slept at their house .
4.5 Despite stating that the complainant did not have a cellphone, the
appellant testified that the complainant knew about the bag with the
appellant’ s surname o n it because he would have seen it on Facebook. In so
doing he inadvertently corroborated the evidence of the complainant that he
was the owner of the bag the complainant testified about.
4.6 This bag was described accurately and the complainant testif ied that
he saw it in the bedroom when he and the appellant slept over at the home of
his aunt and uncle. The appellant stated that whilst the case was ongoing, the
complainant sent him a friend request on Facebook, which he never replied
to, probably to explain how the complainant could have seen the bag on the
social media platform . This was new information which was never put to the
complainant.
11
4.7 The appellant sought to impugn the character of the complainant
during his evidence, and I will return t o this aspect later in the judgment. In
cross -examination the appellant did not do fair well and contradicted himself
in relation to his alibi regarding the exact duration of his stay in Ceres. From
the initial whole month of September, it became apparent during his evidence
that he had visited the area where the complainant’s aunt and uncle reside
towards the end of September .
4.8 Significantly , the evidence of the complainant’s aunt that when they
saw the appellant in Ceres arrangements were made for him to sleep over at
their home the Saturday night when the complainant testified the second
incident occurred, stood uncontroverted. His evidence also confirms that he
was at his home after the 9th of November when the third incident is said to
have occ urred at the home of the appellant.
4.9 The witness Elton Witbooi corroborated the appellant’s version that he
lived with him in Ceres during September, but in contrast to what was put to
state witnesses, he stated the appellant returned to Cape Town for a few
days, whereafter he went back to Ceres. He also contradicted the appellant
on important and material aspects relating to appellant‘s return to Cape Town
at the end of October.
4.10 The appellant’s mother confirmed that they lived in a one -room Wendy
house with no privacy. She struggled with her evidence and did not make a
12
favorable impression. She unconvincingly tried to show that she had a routine
and would have been at home if the complainant came to her house as he
alleged.
D. THE GROUNDS OF APP EAL AND SUBMISSIONS MADE IN THIS COURT
[5] The appellant raised several grounds of appeal, the following being central:
5.1. The complainant was a single , child witness who was n either credible
nor reliable and that the court a quo erred in rejecting his versio n and
accepting the evidence of the State .
5.2. The delay in reporting the matter and confusion around who the first
report witness was.
5.3. The Regional Magistrate overemphasized the medical evidence which
is a neutral factor, and the medical finding s relate to an incident in 2013 prior
to the incidents which form the basis for the complaint in this matter.
5.4. In relation to sentence the grounds of appeal is that t here were
substantial and compelling reasons to be found in the appellant’s personal
circumstances whic h justified a lesser sentence.
[6] Before us the appellant's counsel conceded that he could not sustain any
grounds of appeal against conviction. However, he had no instructions to abandon
the appeal against conviction and it is accordingly apposite to d eal herein with the
central aspects as indicated .
[7] Counsel for the State held firm to the submissions contained in their heads of
13
argument setting out the strengths of the State case and the inherent weaknesses in
the case for the appellant as evinced by the myriad of contradictions and
improbabilities on the few aspects where interestingly he disagrees with the
witnesses for the state case. In many respects , the evidence of the appellant serves
to corroborate either directly or indirectly the evidenc e presented by the State.
E. A DISCUSSION OF THE RELEVANT LEGAL PRINCIPLES
a. The power of an appeal court to interfere
[8] It is well established that the power of a court to interfere on appeal with the
factual findings of a trial court are limited. A court of appeal will be reluctant to
interfere with the trial court's evaluation and findings in respect of oral evidence
unless such findings are misdirected, and clearly incorrect. This is mainly because
the trial court has the advantage of having seen a nd heard witnesses, which is not
the case in the appellate court. A trial court is in a more favorable position to make
credibility findings which an appellate court will be hesitant to interfere with, unless
as stated there is a misdirection. In that case , interference will be warranted. This
court therefore must consider whether there is such a misdirection on the part of the
trial court.3
[9] In S v Francis4 the Supreme Court of Appeal held:
“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. ”
3 See R v Dhliwayo and Another 1948(2)SA 677(A); S v Francis 1991 (1) SACR 198 (A) at 204E.
4 1991 (1) SACR 198 (A) at 204e
14
b. The Delay in Reporting the Matter (First Report )
[10] Section 59 of the SORMA states as follows:
“In criminal proceedings involving the alleged commission of a sexual offence, the court may
not draw an y inference only from the length of any delay between the alleged commission of
such offence and the reporting thereof. ”
[11] The provision is clear that no c ourt may draw inferences , adverse or
otherwise only from the length of a delay in reporting. A first report , the initial
voluntary complaint made by a victim after an alleged rape , is not a mandatory
requirement for a rape charge to proceed. The absence of such a report or
uncertainty as to whom the first report was made to does not invalidate the
prosecution’s case. Courts assess the totality of evidence to determine whether the
charge has been proven beyond a reason able doubt.5
[12] It is so that the complainant kept silent on the rapes, even when his aunt
questioned him directly. However, the reasons why he did not raise the alarm and
kept quiet were explained partially during the evidence of the complainant and
further by the circumstances inherent in the matter.
[13] This is a classic case where there is a massive power imbalance between the
complainant and the appellant. The appellant was a well -respected and loved
prophet of a church who took an interest in the complainant and offered to support
5 See S v Vilakazi [2016] ZASCA 103 at paragraph 15
15
him by praying for him. The complainant l ooked up to him as an older person with
social standing in their community . This statement is confirmed by the evidence of
the aunt and to some degree by the evidence of the app ellant himself.
[14] For these reasons, this ground of appeal is without merit and cannot be
sustained.
c. The Cautionary Rule
[15] It is accepted that the evidence of young children must be approached with
caution. The cautionary rule relating to t he evidence of children has been debated in
numerous authorities. In Maila S6 the approach endorsed by the Supreme Court of
Appeal is set out in these terms:
“[16] ... To ensure that the evidence of a child witness can be relied upon as provided in s 208
of the CPA, this court stated in Woji v Santam Insurance Co Ltd, that a court must be satisfied
that their evidence is trustworthy.
[16] This court has, since Woji, cautioned against what is now commonly known as the double
cautionary rule. It has state d 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 sing le child witness’
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
6 [2023] ZASCA 3
16
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 Hadebe7 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 f or the trees.
[17] Careful consideration of the evidence of the complainant viewed in the totality
of all the evidence clearly shows the complainant’s evidence to be consistent,
reliable and credible. The many ways in which his evidence is corroborated by the
evidence offered by the appellant provides further guarantee for the reliability
thereof .
[18] In my view , the magistrate's rejection of the appellant's version cannot be
faulted, given the inherent shortcomings in the evidence he presented to the court .
The appellant testified that the incidents could not have happened as the
complainant testified because for the first count he was in Ceres and the second
count there were other people present at his house. On both scores, the evidence
presented fe ll short of setting out the scenario presented during cross examination of
the state witnesses.
[19] The evidence tendered by and on behalf of the appellant did not live up to the
promise of what was made during the presentation of the state case. Upon b eing
asked why these aspects had not been put to the State witnesses in cross -
examination, the appellant sought to suggest that he may not have told his attorney
7 S v Hadebe and Others 1998 (1) SACR 422 (SCA).
17
in consultation. He was unable to explain why , despite the attorney taking
instructions in cou rt, he did not use that opportunity to instruct the attorney
accordingly.
[20] The appellant impressed as an evasive witness and his evidence leaves one
with the distinct impression that th ese aspects were last minute fabrication s. He is
contradicted on material aspects by his own witnesses and the evidence he
presented was clearly aimed at creating both physical and social distance between
himself and the complainant. In these attempts he failed spectacularly.
d. The Medical Evidence
[21] Indeed, counsel for appellant , quite correctly, also did not persist in the
argument that the Court a quo did not properly reflect on the fact that the J88 report
setting out the observations and findings of the medical practitioner after a medical
examination was performed on the complainant should not be considered in relation
to this matter .
[22] The submission sought to imply that the finding of the doctor was that the
injuries he saw related to old injuries sustained during the previous incident in 2013
where the complainant was raped. These submissions are not borne out by the
content of J88, which refers to the 2013 incident in the context of relevant medical
history and not in relation to the incident under investigation.
[23] It is settled law that the presence or absence of physical injuries, such as anal
18
injuries in rape cases, does not solely determine the outcome of a case . Put
differently , it is important to note that the absence of visible injuries does not negate
the occurrence of sexual assaul t, as many survivors may not exhibit physical signs
despite experiencing significant trauma.
[24] In any event the evidence of the complainant is that a form of lubrication
either cream or olive oil was used during the incidents of penetration. Therefore ,
each case is assessed on its own merits, considering all available evidence .
[25] Having considered the conspectus of evidence presented , 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. The complainant, being a single
witness, came across as an honest, reliable and credible witness. He was subjected
to torturous cross examination and remained consistent in his evidence. Additionally,
his evidence i s corroborated in important respects by other witnesses, including the
appellant. The court a quo had no reason to reject his evidence.
F. A DISCUSSION OF THE RELEVANT LEGAL PRINCIPLES IN RELATION
TO SENTENCE
[26] The crux of the argument for the appel lant is that the Court a quo did not
properly consider that his personal circumstances, when weighed with the fact that
he is a first offender, amount to substantial and compelling circumstances.
Additionally, counsel for the appellant seems to suggest tha t this is not a matter
19
where the complainant was grabbed off the street and dragged into bushes, and this
should somehow be considered in the appellant’s favor.
[27] As far as the appeal against sentence is concerned, the Act is peremptory
when the fact s of the case fall within the provisions of Schedule 2 to the Act. The
complainant was under 16 years of age at the time of the rape and the appellant thus
face a minimum sentence of life imprisonment as outlined in the legislation. The
sentencing c ourt must consider within the context of all relevant information and
factors presented whether there are substantial and compelling circumstances which
would justify a deviation from the prescribed minimum sentence.
[28] In Director of Public Prosecutions, Kwa zulu-Natal v Ngcobo and Others8
Navsa JA observed:
“Traditional objectives of sentencing include retribution, deterrence and rehabilitation. It does
not necessarily follow that a shorter sentence will always have a greater rehabilitative effect.
Furthermo re, the rehabilitation of the offender is but one of the considerations when the
sentence is being imposed. Surely, the nature of the offence related to the personality of the
offender, the justifiable expectations of the community and the effect of a sent ence on both
the offender and society are all part of the equation? Pre - and post - Malgas the essential
question is whether the sentence imposed is in all the circumstances, just.”
[29] What is suggested by counsel for the appellant is tantamount to mini mizing
the brutality of rape out of “maudlin sympathy” for the rapist. This is untenable in our
8 2009 (2) SACR 361 (SCA) at paragrap h 22
20
society, which is experiencing a scourge of child rapes characterized by sexual
predators manipulating situations to corner perceived soft targets into vulnerab le
situations where they can be exploited. Severe sentences are reserved for heinous
crimes. Rape is regarded as a savage crime that robs children of their dignity in the
most invasive, degrading and humiliating manner .
[30] The complainant was a child brutalized by a person wh o was highly regarded
and respected by his family and by him . He is reported to have viewed the appellant
as an older brother/father figure. The appellant was calculating and manipulative in
how he arranged for opportunities to br utalize the child. He did not hesitate to use his
position as a spiritual leader to manipulate the complainant’s family to present the
complainant for him to use at his whim. He invaded and violated the privacy and
dignity of the complainant in his family home where he ought to have been in a safe
space , and in the second instance under the guise of praying for an upcoming test.
[31] The child was powerless to resist because the appellant orchestrated situations
which led to the complainant being instr ucted by adult family members to go to the
places where he was violated by the appellant.
[32] The circumstances as outlined in the evidence presented to the court a quo
indicate that the appellant used the initial rape to groom the complainant into
acce pting a sexual encounter where he was rewarded with R10 (ten Rand) for
compliance. In this instance the message of being paid after the sexual act was
clear.
21
[33] The personal circumstances of the appellant , while favorable , cannot be
described as extraor dinary . The trial is replete with the many ways in which the
appellant seeks to portray himself as a good person and he had no qualms about
tainting the image and reputation of the complainant by describing him as hanging
out on the streets abusing alcoho l and smoking in public at times he should have
been in school.
[34] He does this knowing that he used his position as leader in the church and
trusted family friend to impose his unwelcome affections upon the child, robbing him
of his innocence. It wa s conceded that the appellant did not display any remorse
and w ithout remorse, there could be no meaningful dialogue about his prospects of
rehabilitation.
[35] In the result I do not find any substantial and compelling circumstances that
would have warranted the Magistrate deviating from the prescribed minimum
sentence. The incarceration while awaiting finalization of the matter in the court a
quo does not in my view, justify any deviation on the facts and in the
circumstances of this case. In the circumstances and for the reasons outlined, t he
appeal against sentence must also fail.
G. THE PROCEEDINGS IN THE COURT A QUO WHICH PROMPTS UNEASE
[36] I would be remiss if I do not remark on certain aspects which was noted in the
proceedings in the court a quo and which is unsettling to say the least. At the
22
commencement of this judgment, I noted the constitutional imperative to safeguard
the rights of vulnerable child witnesses. It is apparent from the record that the
complainant in this matter, a vulnerable young child was failed on many levels during
the proceeding in the court a quo .
[37] The record is a sad reminder of the vulnerability of children in what is
exceedingly be coming a cesspool where humans and most notably children have
become increasingly vulnerable to the cruelty of adults in and outside the
courtrooms. It is important that judicial officers fulfill their duties to protect child
witnesses . What follows below is a discussion on some relevant principles which are
of particular importance in relation to the approach by court officials in treating
vulnerable children during court proceedings.
a. The Duty to Protect Vulnerable Child Witnesses
[38] It is well est ablished that vulnerab le children find the criminal justice system
extremely intimidating and challenging when they a re called to testify as witnesses or
as victims of criminal acts. The importance of realising a justice system that not only
affords an acc used person the right to a fair trial but also protects and safeguards
the rights of the child ren involved as victims and witnesses to the crime is thus
undeniable .
[39] Courts in the criminal justice system must find a balance between the rights of
the accused person to a fair trial and the protection and safeguarding of the rights of
child victims and child witnesses. Emphasis must be placed on the role of the
judiciary to ensure that the delicate balance is maintained and the rights of all
23
impacted by crime are promoted and secured.
b. The Constitution
[40] The South African Constitutional Court has held that the guarantee of equality
'entitles everybody, at the very least, to equal treatment by courts of law.' 9 In
relation to criminal trials, the e quality clause10, and the clause which protects the
right of an accused to a fair trial11, are mutually reinforcing .12 Witnesses and
accused persons alike are afforded the s ame fair trial rights and the prohibition
against unfair practices like excessive, pr otracted and unfair cross -examination .
[41] In Director of Public Prosecutions, Transvaal v the Minister of Justice
and Constitutional Development13 the Constitutional Court acknowledged that
children are uniquely vulnerable and that they require specific attention when
brought to testify in court. The Constitutional Court provided guidelines on how child
victims and witnesses should be accommodated in court proceedings relating to
sexual offences, requiring the state to ensure children’s best interests rem ain intact
when they appear in court as victims or witnesses.
c. The best interest of the child principle
[42] The best interests of the child principle is protected and entrenched in several
legislative provisions in the Constitution, the Children’s Ac t 38 of 2005 and the
Criminal Procedure Act 51 of 1977 (CPA) (as amended by the Criminal Law (Sexual
9 S v Ntuli 1996 (1) BCLR 141 (CC) at para 19; Prins loo v Van der Linde 1997 (6) BCLR 7 59 at para22
10 The Constitution in (section 9(1)
11 The Constitution section 35(3)
12 S v Ntuli (supra) at paras 18 -20
13 2009 (4) SA 222 (CC)
24
Offences and Related Matters) Amendment Act 32 of 2007 (Criminal Law
Amendment Act). These provisions protect child complainants and witnesses from
undue s tress or suffering that might result from being present in court and recounting
their ordeals.
[43] Section 28(2) of the Constitution requires that the best interests of the child
are of paramount importance in all matters concerning the child. In the con text of
child complainants and witnesses, section 28(2) demands protection of children
while giving evidence in court to prevent hardship and secondary trauma. The
concept of the best interests of the child entrenched in section 28 of the Constitution
is aimed at ensuring the full and effective realization and enjoyment of all children's
rights as provided for.
d. International Obligations
[44] South Africa has an obligation under international law to ensure the protection
and care of child witnesses as i s necessary for their well -being.14 The United Nations
Convention on the Rights of the Child (CRC) and the African Charter on the Rights
and Welfare of Children(ACRWC) supports four guiding principles, namely non -
discrimination, the right to life, survival and development,15 participation16 and the
best interests of the children concerned,17 which are instrument al in safeguarding
children's rights. These rights extended to children, in my view, apply equal ly to
children when they become witnesses in c ourt proceedings .
14 Fambasayi R and Kor aan R “Intermediaries and the International Obligation to Protect Child Witnesses in
South Africa” PER/PELJ 2018(21) -DOI http://dx.doi.org/10.17159/1727 -3781/2018/v21i10a2971
15 Article 6 of the CRC; see also a 5 of the ACRWC
16 Article 12 of the CRC; see also aa4(2) and 7 of the ACRWC
17 Article 3 of the CRC; see also a 4(1) of the ACRWC
25
[45] For courts to give full effect to the realization of these rights , courts must
consider the best interest principle on the merits of each case by considering the
specific child in the matter before it. This approach will give effect to the ‘voice of the
child’ principl e espoused in the Children’s Act18 and will promote an environment
where the dignity of the child is respected, and the child is able to assert his or her
right to express his or her opinion freely and to participate in matters concerning
himself or hersel f. This principle is firmly entrenched in national and international
law.
[46] The rights as reflected in terms of the Children’s Act and the factors to be
considered where the evidence of vulnerable child witnesses is sought to be placed
before children ’s courts are equally relevant to criminal proceedings, and they are
already taken up in general best practice or legislation but possibly not codified to
the extent that it is in the Children’s Act. The parts of the general principles provided
for in chap ter 2 of the Children’s Act, which I deem relevant to the proceeding s in
matters like the matter on appeal before us and which factors should in my view be
given due consideration in such matters, are reflected below.
“6. General principles
(1) The general principles set out in this section guide —
……
(2) All proceedings, actions or decisions in a matter concerning a child must —
(a) respect, protect, promote and fulfil the child’s rights set out in the Bill of Rights,
the best interes ts of the child standard set out in section 7 and the rights and
18 Section 6(2) of the Children’s Act 38 of 2005
26
principles set out in this Act, subject to any lawful limitation;
(b) respect the child’s inherent dignity;
(c) treat the child fairly and equitably;
(d) protect the child from unfair discrimination on any ground….,
(3) If it is in the best interests of the child, the child’s family must be given the
opportunity to express their views in any matter concerning the child.
(4) In any matter concerning a child —
(a) an approach which is conducive to conciliation and problem -solving should be
followed and a confrontational approach should be avoided; and
(b) a delay in any action or decision to be taken must be avoided as far as
possible.
(5) A child, having regard to his or her age, maturity and stage of development, and
a person who has parental responsibilities and rights in respect of that child, where
appropriate, must be informed of any action or decision taken in a matter concerning
the child which sign ificantly affects the child.
[Commencement of s 6: 1 July 2007.]
7. Best interests of child standard
() Whenever a provision of this Act requires the best interests of the child standard
to be applied, the following factors must be taken into con sideration where relevant,
namely —
(g) the child’s —
(i) age, maturity and stage of development;
(ii) gender;
(iii) background; and
(iv) any other relevant characteristics of the child;
(h) the child’s physical and emotional s ecurity and his or her intellectual,
emotional, social and cultural development;
27
(l) the need to protect the child from any physical or psychological harm that may
be caused by —
(i) subjecting the child to maltreatment, abuse, neglect, exploita tion or degradation
or exposing the child to violence or exploitation or other harmful behaviour; or
9. Best interests of child paramount
In all matters concerning the care, protection and wellbeing of a child the standard
that the child’s best int erest is of paramount importance, must be applied.
10. Child participation
Every child that is of such an age, maturity and stage of development as to be able to
participate in any matter concerning that child has the right to participate in an
appropr iate way and views expressed by the child must be given due consideration.”
[47] In addition, further guidance may be found in the UN General Assembly’s
Declaration of Basic Principles of Justice for Victims of Crime and Abuse of
Power (Declaration of B asic Principles)19 which provides a framework for responding
to the unique challenges and needs of victims.
[48] The duty of courts to protec t vulnerable children during court proceedings is a
constitutional and legislative priority. It is imperative that children are not subjected to
excessive cross -examination while maintaining the integrity of the justice system and
preserving the fair trial rights of the accused. Despite existing legal frameworks,
there are concerns that magistrates sometimes fail to adequately safeguard child
witnesses from excessive or inappropriate cross -examination, which can lead to
retraumatization and compromised test imony. The appeal before us is one such
instance.
19 Declaration of Basic Principles of Justice for Victi ms of Crime and Abuse of Power (1985), adopted on 29
November 1985 at the 96th plenary meeting, A/RES/40/34 referred to in the article by Fambasayi and Koraan
supra.
28
[49] A cursory glance at the record of the proceedings in the lower court exposes
that those officials present in the court did not pay much attention to the stress that
the child was forced to endure b ecause no one intervened. A reading of the record
also reveals the many ways in which the criminal justice system failed the child .
[50] The complainant suffered when he was exposed to prolonged, intrusive,
inappropriate and at times impermissible cros s-examination at the hands of the legal
representative of the appellant. It may be as counsel for the appellant before us
alluded that this is not a ‘run of the mill’ case because it involved a victim and
perpetrator of the same sex. It is possible that the parties may, for one or other
inexplicable reason have been unsure of how to handle the situation. The child in
question was required to relive the horror of the crime in court in the presence of
everyone, including the appellant.
[51] The complainant was asked to relate the sordid details of the traumatic
experiences that he had experienced at the hands of the appellant , who was a
trusted adult , while he was constantly questioned about returning to the accused
when he knew what he had done to him . Th e complainant was told that what he
alleges is probably not true since he voluntarily went to the home of the appellant.
[52] Apart from being an incorrect reflection of what happened because he was
instructed to go to the appellant by his grandmother, it also reinforces feeling s of guilt
29
and shame as the victim is blamed for what happened to him instead of placing the
blame with the appellant where it belongs. The plight of this child was seemingly not
the concern of those present in court and regrettab ly, the horror was permitted to
continue with no objection from the prosecutor who is the child’s representative in
court or the Magistrate who is constitutionally mandated to protect the rights of the
child.
[53] It is accepted that child witnesses expe rience significant difficulties in dealing
with the adversarial setting of a court and t hey d o not completely understand the
language of legal proceedings or the functions of the various role -players. Our legal
system provides for a procedure that involves confrontation and extensive cross -
examination. The challenges mentioned are exacerbated in cases of criminal
prosecutions for sexual offences due to the emotional stress and fears inherent in
the child being required to recall traumatic events that (s)he is required to testify
about.20
[54] The prosecution of sexual offences is much more intricate than that of most
other crimes, especially sexual offences involving child victims . The victims of these
crimes usually come from the most vulnerable groups of our society and must be
provided with additional protection.
[55] The record of the proceedings in the lower court tells a sad tale of a child who
was left at the mercy of a legal representative who went to town on inappropriate and
impermissible cross -examination . Counsel before us and in the court a quo
20 Klink v Regional Court Magistrate NO and Others 1996 (3) BCLR 402 (E) 403.
30
repeatedly sought to apportion blame for what had happened to him squarely on the
shoulders of the victim.
[56] This was facilitated in the court a quo by repeated statements and questions
relating to the improbability of the allegations being true if the complainant on his
own accord and quite willingly went to the house of the appellant in circumstances
where he had already been raped by him. Before us on appeal it was submitted that
surely this poin ts to a degree of voluntariness.
[57] This was not only a patently incorrect statement considering the evidence but
also amounts to victim -shaming, is a highly inappropriate line of questioning and
should not have been allowed by the Magistrate. One must never lose sight in the
circumstances of this matter that the complainant was 13 years old at the time the
incidents happened, and the appellant was a respected prophet and trusted family
friend who was 34 years old at the time of the respective incidents .
[58] The protection of vulnerable witnesses during cross -examination is a critical
aspect of ensuring a fair trial. A pertinent case that addresses the court’s duty in this
regard is S v Mokoena; S v Phaswane21. This case involved two separate criminal
matters where child victims of sexual offenses were required to testify. The primary
concern was the adequacy of protective measures for these vulnerable witnesses
during the trial process, particularly during cross -examination.
[59] The High Court emphas ized the ne ed to protect vulnerable witnesses,
especially children, from the potential trauma associated with cross -examination.
21 2008 (2) SA CR 216 (T)
31
The court highlighted the importance of creating a supportive environment to
facilitate the testimony of such witnesses without causing additional harm or distress.
[60] The judgment underscored the court’s duty to implement protective measures,
such as appointing intermediaries, allowing testimony via closed -circuit television
(CCTV), and other appropriate accommodations to shiel d vulnerable witnesses from
the potentially intimidating atmosphere of the courtroom.
[61] Central to our discussion is whether the Regional Magistrate adequately
safeguarded the best interests, rights and well -being of the child witness, particularly
in relation to certain questions posed to him in cross examination by the legal
representative of the appellant.
[62] It is necessary for the judiciary to take responsibility to adapt procedures to
safeguard vulnerable witnesses during cross -examination. It highlights the balance
that courts must maintain between the rights of the accused and the protection of
vulnerable individuals, ensuring that the legal process does not subject them to
further trauma. This judgment reinforces the principle that courts mu st actively
protect vulnerable witnesses from excessive or aggressive cross -examination,
ensuring that the pursuit of justice does not come at the expense of the well -being of
those most susceptible to harm.
[63] From the record of the proceedings in the court a quo it is apparent that the
Magistrate ought to have intervened in the following circumstances:
63.1. The defense counsel’s cross -examination included repetitive questions
32
that sought to confuse the child witness.
63.2. The tone and demeanor of th e questioning appeared intimidating,
causing distress to the Child. In this regard , the child was repeatedly
questioned about the fact that family members were present in proximity
during the first and second incident and yet he did not raise the alarm or cry
for help.
63.3 These inappropriate questions , which have no bearing on any issues to
be determined in the matter , ought not to have been allowed to continue as it
only added to the trauma and stress the child was experiencing. It almost
certainly e xacerbated existing feelings of guilt and shame as the response to
these questions from the child was that he did not want to cause further
distress as it would have been the second time he fell victim to sexual
violation and for this reason he kept quiet and did not alert anyone to what
was happening.
63.4 The child’s testimony was critical, but the court had a duty to ensure
that his dignity and emotional well -being were safeguarded. The cross -
examination , both in terms of duration and content of the questions, was not
dignified and was detrimental to the well -being of the child. The high
watermark of the cross -examination consisted of informing the victim that he
was to blame for what happened to him and because he went to the home of
the appellant, he was at best a willing participant or at the very least he could
have refused to go and avoided what happened. These issues are apparent
right through the record and were not only restricted to the complainant.
63.5 His aunt was similarly questioned abou t her decision to allow the
33
complainant , whom she knew to have been violated before , to be alone with
the appellant, a trusted family friend. It should be borne in mind that the aunt
was not an accused in this matter. With the benefit of hindsight, it ma y not
have been in the best interests of the complainant to have allowed it, but the
appellant was trusted by the family and acted as a big brother/father figure to
the complainant. In these circumstances , such questions were similarly
inappropriate.
63.6. The court a quo also permitted questions of prior sexual conduct without
first entertaining an application as provided for in terms of section 227 (2) of
the CPA.22
[64] The court is empowered by the provisions of section 166 of the CPA to restrict
the de fense counsel to conduct himself in line with the obligation to conduct cross -
examination in a manner consistent with professional ethics and the child’s
constitutional rights. The relevant section allows a trial court to limit cross -
examination to avoid repetitive or irrelevant questioning and maintain a respectful
tone which gives effect to the obligation to treat the child with dignity and respect.
Allowing questions of this kind that would not be allowed in matters involving other
offences , affronts the rights entrenched in section 9 of the Constitution which
guarantees equal protection of the law.
22 227 Evidence of character and previous sexual experience Cases
……
(2) No evidence as to any previous sexual experience or conduct of any person against or in connection with whom a sexual
offence is alleged to have been committed, other than evidence relating to sexual experience or conduct in respect of the
offence which is being tried, shall be adduced, and no evidence or question in cross examination regarding such sexual
experience or conduct, shall be put to such person, the accused or an y other witness at the proceedings pending before the
court unless - (a) the court has, on application by any party to the proceedings, granted leave to adduce such evidence or to put
such question; or (b) such evidence has been introduced by the prosecutio n.
34
[65] In Director of Public Prosecutions, Transvaal v Minister of Justice and
Constitutional Development and Others23 the Constitutional Court held that the
existing provisions were insufficient in protecting child witnesses from the potential
trauma of testifying in open court.
[66] The Court emphasized the need for a more flexible and responsive approach
to accommodate the interests of vulnerable witnesse s while ensuring the integrity of
the judicial process. It underscored the importance of creating a child -friendly
environment to facilitate the testimony of young witnesses without causing additional
harm or distress.
[67] This judgment reinforced the c ourt’s duty to implement protective measures
for vulnerable witnesses. It highlighted the necessity of maintaining the balanc e
between the rights of the accused with the need to protect vulnerable witnesses from
secondary victimization during the trial process . It affirm s the judiciary’s responsibility
to adapt procedures to safeguard vulnerable individuals, thereby promoting a more
compassionate and just legal system.
[68] Reflection on the record of the proceedings in this appeal before us shows the
Magistrate to have acted conservatively and cautiously in his approach to ensure
that the fair trial rights of the appellant were respected and safeguarded. This is
apparent if consideration is given to the extreme latitude in allowing the types of
23 [2009] ZACC 8
35
inappropr iate questions permitted in cross -examination of the complainant. As
indicated , the record is replete with examples of this.
[69] In my view the Magistrate ought to have taken steps to ensure that the
appellant’s right to a fair trial is appropriately balanced against the complainant’s
constitutional right to dignity and protection from harm. Courts are constrained to
prevent vulnerable witnesses from being re -distressed , exposed to additional trauma
and secondary victimization during the trial process.
[70] I am mindful that :
“[r]ape 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. ”24
[71] A further feature of the type of offence feat ured in this appeal is the pre -
conceived ideas and myths surrounding how a victim should feel, and act as evinced
in questions such as why complainants did not fight back or scream because there
were people in close proximity. The se are the type of questi ons put to the
complainant in the court a quo during cross -examination.
[72] It is significant that what is expected of victims in sexual offences does not
apply to victims in other offences such as robbery or assault. It is common for
security consult ants to advise the public that in circumstances where a perpetrator
demands property (money or a car), not to resist or fight back and to surrender the
item(s) in question. I have yet to hear cross -examination of a complainant in an
24 S v De Beer -unreported judgment SCA Case No 121/2004 at para 18
36
assault or robbery cas e where the complainant is asked why (s)he did not scream or
fight back against the assailant, yet those types of questions are commonplace in
sexual offence matters.
[73] In Holtzhauzen v Roodt ,25 Satchwell, J acknowledged that:
‘‘not all rapes are the same. Indeed, it is probably trite to say that the capacity for
human experience is so infinite and unpredictable that no crime is quite the same as
another . . . Rape is an experience so devastating in its consequences that it is rightly
perceived as stri king at the very fundament of human, particularly female, privacy,
dignity and personhood.’’
[74] In S v Van Wyk26 a clinical psychologist was permitted to testify
regarding the symptoms experienced by the rape victim. During sentencing, Davis J
makes s pecial reference to the suffering endured by the victim and refers to the
symptoms as a post traumatic rape syndrome. It is unfortunate that instances where
psychologists ’ evidence is presented in the lower court are exceptionally rare , as the
benefit to t he court in understanding the victim , which will inform a more informed
approach can be invaluable.
[75] Research indicates the following salient points:
“Rape is about controlling the victim, male victims experience similar, or the same
emotional conse quences as female victims and male victims are more likely to be
attacked by multiple assailants. There is also a predisposition for male and female
25 1997 4 SA 766 (W) 778E -G
26 2000 (1) SACR 45 (C)
37
children to become victims of rape as they are easy targets and easily accessible .”27
[76] The time has c ome for judicial officers to extend the principle of fairness of the
process to how witnesses and particularly those who are vulnerable are treated.
Recognition ought to be given to inherent power inequalities , most notably in
offences of a sexual nature a s this quite often , as in this instance , is the reason for
delayed disclosure and the secrecy and shame that often plagues these victims.
[77] There is no prototype victim and the experience as well as how they react
during and after the incident is dif ferent for each one . In my view the benefit of
receiving evidence from a clinical psychologist can be of great assistance in these
matters, particularly when presenting the evidence of children so that a proper
picture of the child and his or her abilities is before the court which will promote and
facilitate a better understanding of the witness and will be beneficial in the evaluation
of such evidence.
[78] I pause to state that the concerns expressed in the approach to cross -
examination are not meant t o detract from the carefully considered judgment
underpinned by sound reasoning on the merits which buttress the conviction in the
court a quo. The judgment clearly sets out the basis on which the Regional
Magistrate makes his findings with reference to t he strengths inherent in respect of
the case presented by the State and the shortcomings in the case presented by the
appellant.
27 Male victims of sexual assault: a review of the Literature -PMC
https://pmc.ncbi.nlm.nih.gov/articles/PMC10135558
38
[79] The Regional Magistrate clearly and succinctly sets out the corroboration
found for the evidence of the complainant . The judgment is illustrative of a proper
analysis and evaluation of all evidence presented which form a well -reasoned basis
for the convictions. In respect of sentence, the Magistrate provides equally
compelling reasons for the respective sentences imposed on which he cannot be
faulted.
In the result the following order is made:
The appeal against conviction and sentence is dismissed.
______________________
MF ADAMS
ACTING JUDGE OF THE HIGH COURT
I agree and it is so ordered.
______________________
C FORTUIN
JUDGE OF THE HIGH COURT
APPEARANCES
FOR THE APPELLANT
ADV A PARIES
Instructed by: R DAVIES ATTORNEYS
1ST FLOOR, BENZAL BUILDING
BARRACK STREET
CAPE TOWN
8001
FOR THE RESPONDENT
ADV N AJAM
OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS
CAPE TO WN