IN THE IDGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
In the matter between:
NICHOLAS VAN DER SCHYFF
and
THESTATE
Coram: NZIWENI J and MORRISSEY AJ
Heard: 22 August 2025
Delivered: 17 November 2025
Reportable
Case no: A28/25
APPELLANT
RESPONDENT
Summary: The evidence provided by a child witness should not be
disregarded merely because it contains minor inconsistencies or details that
may have been influenced by their imagination. This is particularly relevant
when those details are not essential to the overall truthfulness of their
testimony.
2
Criminal Procedure - manner in which a child witness is sworn in - section
164 - whether requirements have been met -is determined by the unique facts
of each case - what is crucial is that the assessment of a witness's oath's
meaning must be evaluated based on the substance of the child's
comprehension, not the syntax of their explanation. The focus should be on
whether the child genuinely grasps the core moral and legal obligation to tell
the truth, rather than their ability to express that understanding using formal
or complex language. - subsequent questioning by the lower court revealed
that the child did, in fact, understand the fundamental importance of swearing
to the truth.
Sentence - No substantial and compelling circumstance - appellant had
committed an exceptionally serious abuse of a position of trust. - Section 51
(3) imposes a high t}veshold-appellant's age-ill-health and difficult past are
not sufficient to warrant an alteration of the original sentence imposed by the
trial court.
ORDER
The appeal is dismissed.
JUDGMENT
MORRISSEY AJ:
3
[ 1] The appellant appeals his conviction and sentence by the Wynberg
Regional Magistrate's Court.
[2] The Court a quo convicted the appellant on a charge of rape, six charges
of sexual assault and three charges of exposing or displaying
pornography to children. The Court sentenced the appellant to life
imprisonment on the rape charge and to five years imprisonment on
each of the other nine charges. All sentences were to run concurrently.
The Court also made certain ancillary Orders which it is unnecessary to
recount in detail. The appellant had an automatic right of appeal in
respect of the rape conviction. He was granted leave to appeal in
respect of the other charges.
[3] The complainants were three girls, twin sisters and a friend. They were
all minors when they testified in 2023. They testified regarding events
that allegedly occurred in 2015, when the twins were nine and the friend
would have been about seven years old.
[ 4] The essence of their evidence was that the appellant, a friend of the
twins' late maternal grandfather, would from time to time take them to
his home, play pornographic films and sexually molest them by
touching their private parts. One of the twins testified that the appellant
raped her on one of those occasions. He was able to do so because he
had given some money to the other two children who had gone to buy
something at a nearby shop. They testified that when they returned,
they had heard their sister/friend crying. It seems they realised
4
something was wrong and started throwing stones on the roof of the
appellant's house.
[ 5] It appears that the children reported the molestation to their mothers.
Precisely when they did so is uncertain, but it seems it was around the
time of the alleged rape in 2015. The mother of the twins testified. She
said she reported the matter to the police but it was taken no further.
She also said that her mother told her not to press the issue. The mother
of the friend did not testify.
[6] The mother of the twins was told about the rape in January 2021. The
matter was reported to the police. The accused was arrested shortly
thereafter.
[7] The appellant testified in his defence. He disputed all the allegations
made against him. He said that during 2015 he had not been at home
during the days because he was either working as a painter or working
with a friend, and only arrived home late in the evenings. He essentially
said that the complaints and the twins' mother had concocted a case
against him because he had stopped giving the complainants food
( something he said he did sometime in 2014 ), and because in December
2020 he had accused the twins' mother of spending money on "tile'
( crystal methamphetamine) instead of buying food for her family.
[8] The Judgment of the Court a quo considers the evidence in detail. We
have considered the record and have concluded that the findings
underlying the convictions cannot be faulted. It is unnecessary to
5
discuss the Court a quo 's reasoning in detail, but we note the following
for completeness.
[9] The complaints were minors when they testified and were testifying
about traumatic events that occurred several years earlier, when they
were young minors. Only one of the complaints could testify directly
to the rape charge. Many witnesses, minors or otherwise, have
difficulty recalling factual detail years after the event they testify about,
even if they believe that their recall is infallible. This is manifestly a
case where the cautionary rule regarding the evidence of child
witnesses needs to be carefully applied.
[10] A review of the evidence reveals various conflicts in the versions of the
complainants. Those differences suggest that, although honest, some
of the evidence they gave was a case of their youthful imagination
filling in uncertainties in their recollection, as opposed to being a
"pure" recollection of fact.
[ 11] For example, it was uncertain whether the children were naked or
clothed when the appellant allegedly molested them (or ifit was always
one or the other). There was also a conflict as to how it came to pass
that two of them left the appellant's home before the alleged rape
occurred ( the overall version was that the girls had become concerned
that the appellant was about to molest one of them, and that they had
tried to plan a childish means of escape). There was also some
uncertainty about the type of food the appellant had served the girls
( one said it was always pancakes), the number of times they were
6
molested, and the events immediately preceding the disclosure of the
alleged rape.
[ 12] While those sorts of uncertainties might result in evidence being
rejected in certain cases, this was not one of them. All three children
testified clearly and consistently about the core facts relevant to the
charges, in particular, that the appellant had them watch pornographic
films and that he touched their private parts. The child who said the
appellant raped her described the event with the sort of detail one would
expect from a person who had endured such a traumatic event.
Significantly, her description included details that at her age she would
unlikely have known about unless she had experienced them. For
example, she explained how she bled as a result of the rape, that the
appellant ejaculated on her legs, and that he wiped up the blood and
ejaculate with a cloth.
[13] Even at the time she was testifying it appeared she did not understand
what semen was. She said that the accused removed his penis from her
vagina" ... and then he came on me, on my legs ... ". The following
exchange then followed:
"Prosecutor: Now, [ witness name], you used the word in Afrikaans,
kom. Can you just tell us what is kom?
Witness: No.
Prosecutor: Okay. When you say no, what do you mean? Is it no,
you cannot tell us or no, you do not know?
Witness: I cannot explain what it is.
Prosecutor: Now where did it come from?
7
Witness: Out of his penis.
Prosecutor: Okay. No, thank you, [witness name]."
[14] Immediately after this exchange the Magistrate intervened, requesting
the witness not to become irritated by the questions she was being
asked. Although we obviously did not have the benefit of observing
the witnesses, there are several instances in the record where the
complainants became emotional when testifying to what the appellant
did to them. That emotional response also tends to validate the truth of
the events, in our view.
[15] The child who said she was raped also testified as to the impact the
event had had on her. She said that she started cutting herself after the
incident, and that she had attempted to commit suicide by overdosing
on pills once she discovered that the appellant had been released on
bail. While lay witnesses may well be aware of some of the
psychological trauma rape can give rise to, that would generally not be
the case of minors. None of the evidence regarding self-harm or suicide
was challenged by the accused (to be clear, the appellant did challenge
the allegations of rape, molestation and displaying pornography).
[16) For those reasons and the others discussed in the Judgment of the Court
a quo, we do not consider the evidence of the complainants should be
rejected simply because they are child witnesses and because there are
indications that some evidence or detail that they gave was likely
coloured by youthful imagination. That sort of difficulty might be
problematic if the detail was more directly material to the probity of
their evidence. That might be the case where, for example, they had
8
testified as to the appellant was wearing on a particular day, or that they
had seen him at a particular place at a particular time, and those facts
were critical to securing a conviction against him.
[17] We have also considered the appellant's evidence and whether it raises
a reasonable doubt as to his guilt. In our view it does not. The defence
was two-pronged in the sense it consisted of an alibi and a reason why
the complainants would fabricate a case against him.
[ 18] The alibi is difficult to accept insofar as the appellant suggests that he
spent virtually all of 2015 away from his home except in the evenings.
We recognise that it was difficult for the appellant to be more specific
given that the charge he faced was that he committed certain crimes in
2015. Be that as it may, the complainant who made the allegation of
rape says that event occurred on a Sunday. The appellant also did not
dispute that the complainants had come to his home in the past, albeit
he said that occurred in 2014. The appellant did not call the person he
said he had been working with in 2015 to affirm the version that they
had spent virtually every day together that year, including weekends.
[19] Perhaps more significantly is the appellant's evidence as to why the
complainants would fabricate the charges levelled against him. He said
that he stopped giving the children food in 2014, and that he had made
his comment about the twins' mother spending her money on tik at the
end of 2020. He surmised that those events had precipitated the
fabrication that led to the charges being brought against him.
9
[20] A major difficulty we have with that aspect of the case is that the
interaction about tik use was never put to the state witnesses, including
the person to whom it was allegedly made. It was first mentioned by
the appellant when giving his evidence in chief. Given its prominence
in the appellant's case, it is highly unlikely that he would not have
discussed it with his representative when consulting with her. We are
not saying that the interaction did not occur. Rather, we are saying that
it seems to have been sufficiently innocuous for the appellant not to
have mentioned it to his legal representative as a potential catalyst for
the laying of charges in early 2021.
[21] Absent a trigger event for the charges being laid early in 2021, it is
difficult to understand what motive the complainants would have had
to fabricate a case against the appellant. He suggested it was because
he stopped giving them food, but on his own account that occurred in
2014.
[22] That version must be contrasted with the evidence of the complainants
and the twins' mother. The child who said she was raped said she did
not want to tell her mother about the incident for various reasons,
including a concern that she would not be believed and that there would
be repercussions from the appellant. She explained that she eventually
told her mother when she felt she was strong enough to do so, and
because she felt anger towards the appellant whom she considered was
controlling her life. The other children also expressed a fear of
speaking out because of a concern they would be disbelieved and the
risk of repercussions. Those are inherently convincing grounds: The
appellant was a family friend who was in a position of trust. Being an
adult he also held a position of power over the children.
[23] We also bear in mind the evidence concerning the friend of the twins
telling her older sister she had been molested, that being communicated
to her mother, and the evidence from the twins' mother that she too was
aware of allegations of molestation (but not rape) prior to the disclosure
to that effect in 2021.
[24] That evidence places the mothers in a poor light: They were alerted to
the fact that the appellant had molested their children but took limited
steps to intervene. We consider that evidence is important because, if
the case against the appellant was a fabrication, it would be strange for
the twins' mother not to also fabricate something that placed her in a
better light. That she did not do so strongly suggests she was being
truthful in her account and, more importantly, that it was not a
fabrication.
[25] We have also discussed the evidence of the complainants regarding the
incidents giving rise to the charges. The combination of corroboration
and contradiction in their evidence also points away from a
manufactured version. Rather, the evidence seems to have been given
freely and truthfully ( even if some aspects were coloured by
imagination, as explained above). A further difficulty with the
appellant's version is that there was no challenge to the evidence that
the child who claimed to have been raped had committed acts of self
harm after the incident. Her mother also testified to noticing her
personality change. Those events occurred after the event and are
11
inconsistent with a theory that the complaints were fabricated some five
years after the incident.
[26] We have also considered the Court a quo 's views regarding the poor
quality of the appellant's evidence. While one must be careful of
conflating poor evidence with untrue evidence, what is significant is
that the appellant asserted a very clear recollection on events that
assisted him, and tended to be evasive when issues that might be
adverse to him were being explored. That also has some weight that
must be taken into account when evaluating the appellant's evidence.
As an appellate Court we will also be slow to interfere with findings of
credibility made by the Court a quo.
[27] Overall, we do not consider that the appellant cast a reasonable doubt
on the evidence of the complainants, at least that regarding the elements
of the charges levelled against him.
[28] A procedural issue we identified on our consideration of the record
concerned the manner in which the complainants were sworn in.
[29] Section 164( 1) of the Criminal Procedure Act, 51 of 1977 requires that
witnesses who do not understand the nature and import of the oath or
affirmation must be admonished by the Court to tell the truth. The
subsection is set out below, with emphasis added by us:
"Any person, who is found not to understand the nature and
import of the oath or affinnation. may be admitted to give
evidence in criminal proceedings without taking the oath or
12
making the affirmation: Provided that such person shall, in lieu
of the oath or affirmation, be admonished bv the presiding fudge
or ludicial officer to speak the truth."
[30] Section 164 must be read in the context of sections 162, 163 and 165,
which essentially require evidence in a criminal trial to be given under
oath or affirmation, and specify by whom such oath or affirmation may
be as administered. Evidence that is not given under oath is
inadmissible.
[31] There·are a number of decisions that consider section 164. They reveal
that whether or not the requirements of the section have been met in
any given case often dependent on the specific facts before the Court.
Two leading decisions that articulate the relevant principles are
Director of Public Prosecutions, Transvaal v Minister of Justice and
Constitutional Development, and Others 2009 ( 4) SA 222 (CC) and S
v Matshivha 2014 (I) SACR 29 (SCA).
[32] In our view, the key principles can be distilled to the following:
a. There is a distinction between understanding: (i) what it means
to speak the truth, and (ii) the nature and import of the
oath/affirmation.
b. The first distinction needs to be understood in order for a witness
to be competent to testify ( at least without the intervention of an
intermediary).
13
c. One can only understand the second distinction if one
understands the first. In other words, one can only begin to
understand the nature and import of the oath or an affirmation if
one understands what it means to speak the truth.
d. Being distinct enquiries, it is best for a Court to consider them
separately.
[33] For evidence to be reliable it is insufficient for a witness merely to know
what it means to tell the truth: Witnesses also need to know that the
Court requires them to tell the truth when testifying, and that the failure
to do so will have adverse repercussions for them. Taking an oath or
affirmation to tell the truth serves that purpose.
[34] What section 164 contemplates is a witness who, due to tender age or
other impediment, cannot understand the concept and significance of
an oath or affirmation. In such a case the Court is required to admonish
the witness to tell the truth. This is a practical way to ensure the
reliability of their evidence, with the admonishment being a substitute
for the sobering effect of taking an oath or affirmation before testifying.
[35] An admonishment will thus typically entail impressing upon the
witness the importance of testifying truthfully and that there will be
adverse consequences if they do not. The facts of any given case will
inform the nature and extent of the admonishment required.
[36] The following extracts from the transcript reveal the enquiry
undertaken by the Court a quo in respect of the three complainants in
this case. The first extract is the evidence of the twin who alleged she
14
had been raped by the appellant, the second is the evidence of her sister,
and the third is that of the friend. All emphasis is added by us.
[37] The first twin (testimony of 25 July 2023):
"Court:
Witness
Court:
Witness:
Court:
Witness:
Court:
Witness:
Court:
Witness:
Court:
Witness:
Court:
Witness:
Court:
Witness:
Court:
Witness:
Court:
Can you tell me your name please?
[provides name]
How old are you, !witness name]?
16.
What is your date of birth?
The 13th of the ninth month, 2006.
And which Grade are vou in, [ witness name]?
Ten .
Which school?
[provides name of school].
Sorry? [repeats misheard name of school]?
[repeats name of school].
[ confirms name of school].
Yes.
Okay. Sorry, you are speaking English now. They said
you speak Afrikaans. Is jy meer gemaklik met
Afrikaans?
Ja.
Okay. [witness name], voordat ons begin wil die hof
net gou hoor, weet u wat dit is om die eed af te le?
Nee.
Het die staatsaanklaer dit nie met u bespreek nie?
Witness:
Court:
Witness:
Court:
Witness:
Court:
Witness:
Court:
Witness:
Court:
Witness:
Court:
Witness:
Court:
Witness:
Court:
Witness:
Court:
15
Nee.
Die hof wil vir u insweer, want clit wat u nou gaan
getuig moet jy did nou onder eed ... Die hof wil weet
of u kan sweer dat u die waarheid gaan praat.
Ja.
So het u enige beswaar, [ witness name], om te sweer
dat u die waarheid gaan praat?
Ja.
Het u a beswaar of nie?
Nee.
Verstaan u nou a bietiie beter wat dit is?
Nee .
Bet u al gesien hoe op n gehoor waar die hof n
persoon insweer?
Nee.
Wat ek gaan doen is ek gaan vra, [witness name], sal u
nou sweer die getuienis wat u gaan gee is die waarheid,
niks anders as clie waarheid, so help u God . Het u dit al
vantevore gehoor?
Nee .
Okay. So dit is wat die hof vir u wil vra, ne, of u die
waarheid gaan praat. So u se u bet geen besweer om
die eed af te le nie?
Ek verstaan nie nou eintlik nie.
So die eed, dit is wanneer n persoon sweer.
Ja.
Weet u wat dit is om te sweer?
Witness:
Court:
Witness:
Court:
Witness:
Court:
Witness:
Court:
Witness:
Court:
Witness:
Court:
Witness:
Court:
Witness:
Court:
Witness:
Ja.
As u se so help my, God.
Ja.
Verstaan u? Verstaan u <lit?
Ja.
16
Okay. So as die hof nou se iy moet die eed afle dan
bedoel dit ek gaan yir u vra sal u sweer om die
waarheid te praat.
Okay.
Nou weet u wat die verskil is tussen die waarheid en
n leuen?
Ja.
Wat is die verskil? As u nou ... As u iets verkeerd by
die skool moet doen, ne?
Ja.
As jy nou vir die juffrou se of jy gaan nie skool toe nie
of jy se jy is nou siek and jy is nie siek nie, is dit. .. En
jy vertel vir die skool - jou onderwyser jy was nie by
die skool omdat jy siek was, maar jy weet jy was siek
nie, is dit n leuen of die waarheid?
Dit is n leuen.
En wat is die gevolg as dit moet gebeur? As hulle nou
uitvind jy het gelieg? Is daar ... [tussenbeide]
Ek gaan gestraf word.
Goed. En by die huis, is daar ... Jy weet as jy met jou
ouers woon - woonjy metjou ouers, [witness name]?
Ja.
Court:
Witness:
Court:
Witness:
Court:
Witness:
.Court:
Witness:
Court:
Witness:
Court:
Prosecutor:
Counsel:
Court:
Witness:
Court:
Witness:
17
En wat is die gevolg as iy n leuen moet vertel?
Word jy gestraf of wat gebeur?
Bulle sal my straf, la.
Okay. So verstaan u nou a bietiie beter wat dit is om
die eed af te le?
Ja.
Die hof wil net basies weet dat dit wat u nou gaan
vertel is net die waarheid.
Ja.
En dat u ook verstaan is as iy nie die waarheid praat
nie, daar kan n gevolg wees?
Ja.
Verstaan u dit, [witness name]?
Ja.
Ms [prosecutor] and Advocate [for the appellant], do
you think she sufficiently understands?
Yes, Your Worship. State confirms.
Confirm, Your Worship.
Okay. Goed . [Witness name], kan u u regterhand vir
my op plaas asseblief? Hou net jou regterhand op. Ja.
So die hof gaan vir u nou insweer, ne? So luister baie
mooi. Sal u dan nou sweer dat die getuienis wat u gaan
gee is die waarheid, niks anders as die voile waarheid?
So help u, God?
Ja.
Okay. U kan se so help my , God .
So help my, God."
18
[38] The second twin (testimony of 17 October 2023):
"Court:
Witness:
Court:
Witness:
Court:
Witness:
Court:
Witness:
Court:
Witness:
Court:
Witness:
Court:
Witness:
Court:
Witness:
Court:
Okay, now before we start the Court needs to hear from
you; do you have any problem taking the oath? And
the oath means that I will have to then swear you in
and you would have to tell the truth. Do you have
any obiection in doing so? Het iy enige beswaar om
die eed af te le?
No.
No? Okay, do you understand what it means ?
Not really.
How old are you?
17.
Are you at school?
Not currently.
Okay , which Grade did you attend and fmish?
10.
Grade 1 O? Okay, so the oath, die eed is basies waar
die Hof vir u in sweer en dan moet U net sweer dat
U et die waarheid gaan praat.
Okei.
Verstaan u nou?
Ja.
Is U gemaklik on dit te doen?
Yebo.
Okay . Goed, dankie dan kan U, U regter hand op hou
[witness name]. Metjou, with your palm facing to the
Witness:
Court:
19
screen, and open your hand. There we go, that is how
we swear. Okay?
Right.
Okay so will you swear that the evidence you are about
to give is the truth, nothing other than the full truth, so
help you God?
(WITNESS NAME]: [admonished] [through intermediary] [through
court]
Court:
Witness:
Thank you, you are now sworn in, you can put your
hand down now.
Thank you."
[39] The friend (testimony of 18 October 2023):
"Court:
Witness:
Court:
Witness:
Court:
Witness:
Court:
Witness:
Good afternoon.
Good afternoon.
How are you?
I am alright and you
I am fine, thank you. Ms [ witness name], it is the
magistrate speaking, Ms Ramos. Before we start with
your evidence, the court will just have to swear you in.
I will explain what that means . Can you just tell me
how old you are?
I am now 15 years old, turnint? 16 next year.
Okay, and your full name? Just tell me your full
names?
[provides full name]
Court:
Witness:
Court:
Witness:
Court:
Witness:
Court:
Witness:
Court:
Witness:
Court:
Witness:
Court:
Witness:
Court:
Witness:
Court:
Witness:
Court:
Witness:
So you are 15, turning 16 next year.
Yes.
Are you at school, [ witness name ]?
No, I actually left school. That was last year.
Last year?
Yes , in the middle of the year.
Okay, which grade did you last attend?
Grade 8.
20
Grade 8, okay. So [witness name], before you give the
evidence, before you tell your story, the court has to
make sure that I swear you in. Do you understand
what it is to take the oath? It is basically be that the
court will have to ask you to swear that what you
are going to tell us today is the truth.
Yes.
Do you understand what that means?
I do understand.
Okay, do you have any problem or objection taking
them oath [witness name]?
No.
So you understand what it means to take the oath and
tell the truth?
Yes.
And you have no problem doing so today?
No problem.
Okay, are you going to testify in English or Afrikaans?
Afrikaans.
Court:
Witness:
Court:
Witness:
Court:
Witness:
Court:
Witness:
Court:
Witness:
21
So can you raise your right hand for me please with
your palm showing to the screen.
This one?
Yes, that one. Sit up straight quickly. Sit up nicely so
that you are comfortable there.
Sorry.
Can you clip that in? Okay, you are comfortable?
Yes.
Okay. If you raise your right hand for me please.
Would you swear that the evidence you are about to
give [ witness name] is the truth, nothing other than the
full truth, so help you God? You can respond by saying
so help me God.
Help me God.
So help me God.
So help me God."
[ 40] As these extracts reveal, the Court a quo did not admonish the twins
despite them indicating that they did not understand ( or fully
understand) what it meant to take the oath. Rather, the Court sought to
explain the concept to them, and swore them in once she had done so.
The friend indicated that she understood what it mean t to take the oath,
but the Court did not test that understanding in any material way.
22
[41] We requested supplementary heads of argument from the parties
regarding the appropriateness of the approach of the Court a quo. We
are grateful to counsel for their assistance.
[42] Having considered the matter, we consider that on the facts of this case
it was correct for the Court to have sworn the witnesses in as opposed
to admonishing them.
[43] As regards the twins, in our view the record reveals that the professed
lack of understanding they indicated was one of syntax as opposed to
substance.
[ 44] Although the twins expressed confusion about what it meant to take an
oath, further questioning revealed that they understood what it meant to
swear something was true; and the Court then explained that that was
essentially what taking the oath meant.
[ 45] The first twin had initially said that she did not understand what it meant
to take the oath and the extent of the Court's further questioning reveals
a sufficient degree of rigour to test her subsequent statement that she
did understand the import of swearing something was true. Indeed, the
Court expressly told the first twin that there would be consequences for
her if she did not tell the truth in her evidence. While not determinative,
it is not without significance that the representatives of the parties both
confirmed that they considered the first twin "sufficiently understands''.
[ 46] The second twin expressed some uncertainty as to what it meant to
swear something to be true, but indicated she understood the concept
23
once it was explained to her in Afrikaans, the language she chose to
testify in.
[47] The nature and extent of the Court's enquiry must also be considered
in the context of the age and education of the twins. They were almost
majors when they testified (the first twin was 16 and the second twin
was 17, their birthday having passed between their testimony). The
second twin had completed Grade 10, and the first twin was in Grade
10, when testifying. In the ordinary course of things, one would expect
a child in high school to appreciate the gravity of swearing a fact to be
true, even if they do not understand a reference to their being required
to "take an oath" before testifying in Court.
[ 48] The age and level of schooling is also relevant when considering the
position of the friend. She was 15 years old when she testified, and had
left school during Grade 8. As indicated, she said that she understood
what it meant to take the oath, and the Court did not enquire further into
that understanding. The Court had however explained that taking the
oath meant that she would swear that she would tell the truth. We
consider that in those circumstances the enquiry was sufficient, and that
the confirmation from the friend that she understood what it meant to
swear to tell the truth was sufficient to be accepted by the Court.
[ 49] Two other issues we identified from the transcript were the following:
First, the record does not record the second twin confirming the oath
(as the extract above reveals, the oath was administered but there is no
record of the second twin confirming it). Second, although the
complainants gave evidence through an interpreter (and via closed
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circuit television), there is no record of the interpreter having been
swomm.
[50] The first issue might be an omission in the transcript, or it may be that
the witness affirmed the oath in a non-verbal way (for example, by
nodding her head). We are hesitant to make any assumptions against
the appellant. Ultimately, we do not think it is necessary to do so.
Even if the evidence of the second twin is treated as being inadmissible,
the exclusion of it would have no impact on the outcome of the appeal.
That is because it essentially served to corroborate what the other
complainants said. The exclusion of the evidence would also not be the
equivalent of the second complainant not being called (in which case
we would need to consider whether an adverse inference should be
drawn).
[ 51] The failure to swear in an interpreter/translator has been held to render
the interpreted evidence inadmissible, except where the interpreter is an
official or permanent one (S v Naidoo 1962 (2) SA 625 (AD) at 633B
E). Whether the interpreter was an official or permanent one does not
appear expressly from the record. However, we have noted that the
same translator assisted the Court on each occasion the matter was
heard, and translated the evidence of all of the complainants. While
preparing this Judgment we asked the parties to indicate whether the
interpreter was a permanent one. Counsel for the respondent advised
that that is the case, and that the relevant interpreter is stationed at the
Wynberg Magistrates' Courts. We thus do not consider that any of
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the evidence should be excluded on this ground. We mention that no
objection to the interpreter's evidence was made before us.
[52] As far as sentence is concerned, we are not minded to interfere with the
findings of the Court a quo. A review of the Court a quo 's judgment
regarding sentencing reveals that the Court took all relevant
considerations into account to arrive at an appropriate sentence. We
agree that the Court a quo was required to impose life imprisonment in
respect of the count of rape by virtue of section 51 ( 1) of the Criminal
Law Amendment Act, 105 of 1997 ( as read with paragraph b(i) of Part
1 of Schedule 2, regarding rape), and that there were no substantial and
compelling factors justifying a departure from that minimum sentence
as contemplated in section 51(3).
[53] Without intending to focus on any specific aspect considered by the
Court a quo, the appellant abused a position of trust in a most egregious
way. His relationship with the complainants meant that he was able to
resist his conduct coming to light for several years. The Court needs to
send a clear message that rape, especially the rape of children, is not to
be tolerated. The appellant sought to rely primarily on his age and ill
health to justify a departure from the minimum sentence. We have
considered that and are alive to the very difficult past the appellant has
had. We do not consider we should interfere with the decision by the
Court a quo that, on the facts of this case, those factors do not pass the
high threshold of section 51(3).
[ 54] In light of the above, the appeal falls to be dismissed.
[55] I concur.
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~ MORRISSEY AJ
Acting Judge of the High Court
NZIWENIJ
Judge of the High Court
Appearances:
Counsel for the Appellant
Counsel for the Respondent
Advocate N Kunju
Advocate MJ September
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