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1991
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[1991] ZASCA 132
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S v Ansell (318/90) [1991] ZASCA 132 (27 September 1991)
IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION
CASE NO. 318/90 In the matter between
ANTHONY HOWARD ANSELL Appellant
and
THE STATE Respondent
Coram: NESTADT, F.H. GROSSKOPF JJA et HARMS AJA
Date heard: 20 September 1991 Date delivered: 27 September 1991
2 JUDGMENT
HARMS AJA:
The appellant was found guilty of
crimen injuria
in the Durban
Regional Court. The appeal against his conviction was dismissed by the Natal
Provincial Division. Leave to appeal against
the conviction was, however,
granted by that court.
The case against the accused was that on 27 July 1988 and at the Esplanade
parking garage he insulted and impaired the dignity of
the complainant by
exposing his penis, erecting it and masturbating in her presence. The
complainant was at that stage a school girl
in std 7 and 14 years of age. She
described herself as a person of smaller build than the
3 average 14 year old
girl.
Many of the surrounding facts are not in dispute. The appellant is the owner
of a number of businesses in the central business district
of Durban. He is
involved with organised commerce and has a special interest in security; he
attempted to spearhead an awareness
and education campaign about the seriousness
of shoplifting. He has strong views on the issue and in a magazine interview
published
shortly before the events that led up to the alleged
crimen
injuria
, he expressed the following sentiments:
"Major stores have to prosecute because of the volume of goods taken from
them. I understand that. In my case I like to try and save
the youngsters from
further disaster and act according to the circumstances. I will involve the
parents if I think it's necessary.
But if the kids are arrogant or cheeky, I
will charge them then and there."
4 He went on to stress the importance of
education in trying to combat shoplifting and said further:
"I am very concerned about the problem because the shoplifter of today is
often the hardened criminal of tomorrow. I feel there is
not enough education in
schools regarding the seriousness of shoplifting. Most school-going shoplifters
we catch don't even know
that it's a criminal offence, which will give them a
criminal record for life, and they don't realise that the courts don't play
around with shoplifters."
On 15 June 1988 the complainant was caught shoplifting from the appellant's
place of business. The appellant took her to his office
and, in the presence of
a female staff member, interviewed the complainant. The complainant was, in
spite of her age, aggressive,
and denied the allegations. She later confessed.
The appellant took down her particulars and established, inter alia, her age,
details
of her school, that her parents were divorced, that her father lived in
the then South-West Africa and that she had an elder sister
who had behavioural
problems due to truancy and some or other
5 dagga offence.
The complainant was then told to acknowledge, in writing, the theft. She was
given a sermon on shoplifting and handed the said article
to read. She was told
that she would not be prosecuted. She also had to undertake to return to the
appellant for a further interview
during the period 18 July to 23 July 1988. The
reason for the return visit was, according to the appellant, that such visits
break
down barriers and establish a friendly relationship between the shoplifter
and the appellant so that no "hard feelings" remain.
The complainant did not return on the agreed date. The appellant then
telephoned her at home and made an appointment for the fateful
day. She honoured
the appointment. After another discussion on shoplifting and the complainant's
holidays the discussion took a strange
turn towards (in complainant's words)
"sex and rape". What
6 apparently happened was that the appellant enquired
about the complainant's school work. She then mentioned that she was doing a
project on a rapist who had been imprisoned for interfering with young girls on
the Berea. The complainant had the relevant press
clipping with her. Although
the complainant stated initially that she did not know how the subject arose,
there can be little doubt
that it was raised under the circumstances sketched.
It should be noted that the complainant had a lively interest in sex and the
learned magistrate remarked correctly that she is not an innocent, ignorant
young girl with little or no knowledge of sexual matters.
At the end of this meeting the appellant offered the complainant a lift home.
They went to his motor vehicle which was parked at the
Esplanade parking garage.
It was approximately 16h00. It was there in the motor vehicle that the
appellant, according to the complainant's
version, committed the acts referred
to above. It is, for purposes
7 of this judgment, not necessary to relate the
discussion that took place in the car, or to colour the picture.
After the alleged injurious acts the appellant took complainant home. He
mentioned the possibility of another return visit. She told
her sister what had
happened and a friend of the sister who is a policeman was informed. The matter
then took its ordinary course.
The learned magistrate was aware of the fact that the prosecution relied on
the evidence of a single witness and that the cautionary
rules applicable to the
evidence of children and of complainants in matters of a sexual nature should be
borne in mind. It was argued
before the court a
quo
(and again in this
court) that the learned magistrate paid lip service to the cautionary rules. The
court
a quo
dismissed this submission and found that the magistrate had
subjected the complainant's evidence to an analysis which was in some
respects
unduly critical, that he had given due
8 consideration to the fact that her
evidence was not unblemished and that he had found correctly that she was
nevertheless a satisfactory
witness. I agree with this assessment of the learned
magistrate's judgment on this aspect of the case.
The appellant's evidence did not impress the learned magistrate because, in
his view, aspects of his evidence were improbable. He
did not comment on the
appellant's demeanour as a witness. The court
a quo
pointed out that the
unsatisfactory features found by the magistrate, each taken on its own, do not
demonstrate the untruthfulness
of the appellant's evidence but that the
appellant's evidence had to be rejected as being improbable.
In assessing the evidence of the complainant it must be borne in mind that,
in the words of Lewis AJA in
R v J
1966 (1) SA 88
(SR AD) 91:
9
" the reason for the special cautionary approach [in
this type of case] is that, where there is no clear corroborative evidence to
show that the offence in question has been committed,
then one is faced with the
danger that the whole episode complained of may have been a figment of the
child's imagination."
The learned Judge proceeded to state (at 92) that:
"In the case of all females alleging sexual assaults, the need for similar
caution, in the absence of corroboration, flows from the
fact that such charges
are easily laid and difficult for the accused to disprove, and a multiplicity of
motives may exist for their
being falsely laid. This has been recognised since
time immemorial, and a classical example of such a false charge can be found in
the Biblical story of Potiphar's wife and Joseph."
Concluding this issue, the learned Judge stated:
"The main purpose, therefore, of applying the cautionary rule in cases
involving young children and in sexual cases generally, where
the commission of
the offence is not established by corroborative evidence, is to guard against
the danger of invention."
Similar sentiments were expressed by Botha JA in Sv
Balhuber
(1987 (1) PH H22 (A); case 30/1985 dated 25
10 September
1986) and quoted with approval and applied in
5 v
F
1989 (3) SA 847
(A).
It was there pointed out that the risk of a false accusation may be present even
though the motive may not be readily apparent,
and that there i s a wide variety
of possible motives f or invention and laying of false charges in these cases.
It was said that
the complexity of such motives and the difficulty of perceiving
them lie at the very foundation of the cautionary rule. The following
words of
Botha JA appear to be apposite:
"The laying of a false charge, judged by objective standards, is an
irrational act, but the intrinsic improbability of it is much
attenuated in
cases of sexual assault by the knowledge, gained from experience, that a variety
of possible motives do induce complainants
to act in that way."
Both the trial court and the court
a guo
did consider the
question
of motive. Both found that the complainant could
not have had a motive to
implicate the appellant falsely
because she feared the possibility of a
prosecution for
shoplifting and had every reason to refrain from
mentioning
11
the matter and thereby provoking her own prosecution.
The complainant did testify that, in spite of the appellant's assurance that
he would not prosecute her, she feared that a prosecution
could still follow.
She also testified that when she arrived home after the event and had told her
sister of what had happened, the
sister wished to telephone the police and she
then asked her sister not to telephone because she did not want to get into any
trouble.
The sister nevertheless telephoned the police and after having been
assured that the appellant's undertaking not to prosecute was
binding, the
complainant decided to lay a charge. The complainant's sister did not
corroborate the complainant on this aspect of
the case. She merely testified
that the complainant made the report and that she thereafter telephoned the
police. In other words,
what the trial court and the court
a quo
did was
to rely on the complainant's own evidence to corroborate her evidence relating
to the absence of a motive.
12
They did not err in so doing. The apparent discrepancy was not raised with
the sister who, as a witness, tended to be
taciturn. The complainant's
evidence on this aspect was never challenged; it is also probable because, in
spite of the appellant's
undertaking not to prosecute, he had retained the
confession and her particulars. Why, he could not explain satisfactorily. It was
submitted that there is an equal and opposite probability that the complainant
had made the allegation in order to pre-empt a prosecution
by transforming
herself from an offender to a victim. This supposition is not based upon any
fact: it was not the complainant's evidence
that she feared that a prosecution
w
ould
follow. It
could
follow if she did not toe the line: she had
to submit to further meetings; she had to behave; she may not be cheeky or
arrogant.
I gave anxious consideration to the possibility of any other motive to
implicate the appellant falsely. Some spring to
13 mind but they have no
factual basis and require a conspiracy between the complainant and her sister.
That possibility was not mooted
with either witness or in argument. It follows
that the trial court and the court
a quo
did not err in holding that the
complainant had no motive to implicate the appellant falsely.
Much was made in the trial court and the court
a quo
of
the-appellant's so-called
modus operandi
with shoplifters. It would seem
that they deduced from this
modus operandi
that the appellant used his
position to force sexual advances upon female shoplifters. There is nothing
untoward (as distinct from
amateurish) in the
modus operandi
as set out
in the magazine article quoted above. What does not appear from the article or
his evidence is that it formed part of
his scheme to obtain a confession from
the shoplifter; nor does it appear that there was an insistence on a return
visit. There was
no evidence to justify the assumption of other improper
behaviour. The fact of the matter is that
14 the appellant gave to the
police, at their request, a list of other shoplifters who were subjected to his
modus operandi
and no evidence came to the fore to the effect that the
appellant had misbehaved himself with any of those shoplifters.
I am of the view that the matter must be considered on the basis that the
appellant did not, at the initial stage, have any ulterior
designs on the
complainant. However, his handling of the second interview is suspicious. He got
involved in a lengthy discourse on
aberrant sexual behaviour with a 14 year old
girl who was known to him as a shoplifter. One would have expected that when she
mentioned
her school project he would have changed the subject. He did not. Her
uncontested evidence is that he even told her what contraceptives
were sold in
his shop. It is probable that this lurid discussion aroused the appellant. He
then decided to take her home and used
the occasion to end the sex lecture with
a demonstration.
15
To conclude, and without dealing with all the subsidiary arguments which were
convincingly dealt with by the trial court and the court
a quo
, the
appellant was properly convicted.
The appeal is dismissed.
HARMS AJA NESTADT JA ) F.H GROSSKOPF ) CONCUR