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[1997] ZASCA 108
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S v Hanuman (593/96) [1997] ZASCA 108; [1998] 1 All SA 254 (A) (27 November 1997)
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Certain personal/private details of parties or witnesses have
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REPORTABLE
CASE NO:
593/96
THE
SUPREME COURT OF APPEAL
OF SOUTH
AFRICA
In the
matter between:
ASARAM
HANUMAN
APPELLANT
and
THE
STATE
RESPONDENT
CORAM
:
SMALBERGER, HOWIE et ZULMAN JJA
DATE OF
HEARING
: 20 NOVEMBER 1997
DELIVERY
DATE
: 27 NOVEMBER 1997
JUDGMENT
SMALBERGER
JA:
The
appellant was convicted in the Regional Court in
Durban
on counts of (1) rape and (2) indecent assault. He was found
to
have had sexual intercourse with his step-daughter S.S.
2
("the
complainant") without her consent, and to have indecently
assaulted her, on
numerous occasions over the period mid-1991 to May
1993. The
complainant was twelve years of age when these events commenced. The
appellant was sentenced to 6 years' imprisonment,
both counts being
taken as one for the purposes of sentence. He
unsuccessfully
appealed to the Natal Provincial Division against his
convictions
and sentence.'
After
the dismissal of the appellant's appeal the complainant made
an
affidavit retracting her allegations of sexual impropriety against
the appellant. This affidavit formed the basis of an application
to
the Court
a quo for leave
to appeal to this Court. Leave was duly granted. Apart
from
the appeal before us there is an application to remit the matter to
the trial court to hear
further evidence. The evidence which it is sought
3
to
lead revolves around the complainant's affidavit. I shall deal first
with the application for remittal.
In
her affidavit the complainant claims that she "lied in every
material respect in my
previous statement to the police ...". (Somewhat
surprisingly,
and perhaps significantly, she says nothing about her
evidence
at the trial!) She denies that the appellant ever sexually abused
her, and claims in effect
that the reason why she preferred false charges
against
him was that he assaulted her mother and "I did not like him and
wanted him to have
nothing more to do with [her]".
It
is a fundamental and well-established principle of our law that
in
the interests of finality, once issues of fact have been judicially
investigated and pronounced upon, further evidence will only
be
permitted in special
circumstances. The prerequisites for a successful
4
application
for remittal, as formulated in S v De Jager 1965(2) SA 612
(A) at 613
C-D, and applied in countless cases since, are:-
"(a)
There should be some reasonably sufficient explanation,
based
on allegations which may be true, why the evidence
which
it is sought to lead was not led at the trial.
There
should be a prima facie likelihood of the truth of the
evidence.
The
evidence should be materially relevant to the outcome
of the
trial."
As
pointed out in Loomcraft Fabrics CC v Nedbank Ltd and Another
1996(1) SA 812 (A) at 825 A, while the requirements have not always
been formulated in the same words, the underlying approach to the
inquiry has essentially always been the same.
It is common cause that the appellant, on whom the onus rests,
has satisfied requirements (a) and (c) above. The appellant was
convicted and sentenced on 7 June 1994. His appeal was dismissed on
5
24 August
1995. The complainant's affidavit is dated 7 September
1995.
It is axiomatic that the appellant could not have had knowledge
of
the affidavit and its contents prior to his trial (or, for that
matter, his
appeal).
Additionally the affidavit, assuming its truth, would clearly be
materially relevant to the outcome of the trial.
That
leaves requirement (b). Although the "prima facie
likelihood"
test has been regularly applied, there remains some
uncertainty
as to its precise juristic connotation. Does it require some
degree
of probability that the evidence in question will be accepted as
true, or will a
reasonable possibility of that being so suffice? (See S v Steyn
1981(4) SA 385 (C) at 391 A - 392 H; Du Toit et al:
Commentary
on the Criminal Procedure Act 31-12.) The result could
vary
depending upon the test applied. In the Loomcraft Fabrics case
6
(supra
at 825 C-D) it was said that whether there is a prima facie
likelihood of the
evidence being the truth or whether it is probable that
the
evidence will result in the outcome being changed (the test
propounded in
Staatpresident en 'n Ander v Lefuo 1990(2) SA 679 (A)
at
692 B) amounts in effect to the same inquiry. The view I take of the
present matter makes it unnecessary for me to decide whether
the
prima
facie likelihood
test requires some degree of probability, or merely a
reasonable
possibility, for it to be satisfied.
The
complainant's affidavit must be seen against the background of the
trial. There can be no doubt that the complainant was sexually
abused. When examined by Dr Key on 10 June 1993 she exhibited
clear physical and emotional
signs of that being the case. Dr Key is someone with considerable
experience in the field of child
abuse. No
7
serious
challenge was directed at her evidence. The matter was handed
over
to the Child Protection Unit of the police and shortly thereafter the
appellant was arrested.
At that stage the appellant and his wife (the complainant's mother)
were separated and in the throes of
a divorce.
The trial
commenced on 25 October 1993. By that time the
appellant
and the complainant's mother had become reconciled and had
resumed
cohabitation. The complainant was living with her aunt, Mrs
Jagesar.
She was the first person to whom the complainant made a
report
concerning the appellant's sexual misconduct. The complainant
testified in detail and
at length to various instances of sexual assault perpetrated upon her
by the appellant in different ways
and in different
places
and extending over a period of more than two years. She stood
up
well to a long and probing cross-examination. Although her evidence
8
was
not free from blemish, the trial magistrate nonetheless found her to
be a truthful witness and accepted her evidence. He did so mindful of
the fact that she was a complainant in a sexual offence, still a
young girl
and a single
witness. It has not been suggested that the magistrate
misdirected himself in any way in his judgment. Apart from unfounded
speculation, there is nothing to suggest that anyone other than the
appellant might have been responsible for the complainant's physical
and
emotional condition.
In
her affidavit which forms part of the application for remittal,
the complainant's mother stated, inter alia:
"I
can also confirm that prior to the trial in question proceeding
in
the Regional Court, I accompanied Sheleena to the public
prosecutor
where representations were made to have the charges
withdrawn".
It
appears, however, that the public prosecutor refused to withdraw the
9
charges.
If
the complainant's affidavit is accepted at face value it means
that
when she gave evidence:
She
knew that the charges she had laid against the appellant
were
false;
She had
been party to representations made to have the
charges
withdrawn signifying a reluctance on her part to testify.
If
she had testified in that frame of mind one would have expected her
reluctance to have been,
or to have become, apparent. One would also
have
expected considerable inroads to have been made into her evidence
under cross-examination. Yet she never wavered significantly
in her evidence.
A further
consideration in determining the prima facie likelihood
10
of
the complainant's affidavit is this. When the charges were laid in
this
matter the appellant
and his wife had already separated and were no
longer living together. The reason advanced by the complainant in the
affidavit for laying false charges against the appellant was that she
"wanted him to have nothing more to do with my mother". But
this had
already been
achieved, at least at that time, by their separation.
In
R v Van Heerden and Another 1956(1) SA 366 (A) at 372 B,
Centlivres CJ stated:
"I
can see no reason why the Court should accept at their face
value
affidavits made by persons who allege therein that they gave
perjured
evidence at the trial."
He went on
to add (at 372 H - 373 A):
"It
is not in the interests of the proper administration of justice
that
further evidence should be allowed on appeal or that there
should
be a re-trial for the purpose of hearing that further
evidence,
when the only further evidence is that contained in
11
affidavits
made after trial and conviction by persons who have
recanted
the evidence they gave at the trial. To allow such
further
evidence would encourage unscrupulous persons to exert
by
means of threats, bribery or otherwise undue pressure on
witnesses
to recant their evidence. In a matter such as this the
Court
must be extremely careful not to do anything which may
lead
to serious abuses in the administration of justice."
Centlivres
CJ quoted with approval from a judgment of Denning LJ in
Ladd v Marshall
[1954] 3 All ER 745
at 748 to the effect that:
"A
confessed liar cannot usually be accepted as credible. To
justify
the reception of the fresh evidence, some good reason must
be
shown why a lie was told in the first instance, and good
ground
given for thinking the witness will tell the truth on the
second
occasion."
What
must be looked for is some credible evidence aliunde which
suggests that the evidence originally given was false (van Heerden's
case
at 373 B). No such
evidence is immediately apparent in the present
instance. Mr Singh, for the appellant, sought to rely in this regard
on
12
the
affidavit of Mrs H., which forms part of the remittal
application.
In her affidavit she claims that the complainant "appeared very
upset" and "indicated that she wished
my assistance to take
her to the police station as she wanted to have an affidavit drawn up
there to
right what she
had done wrong." It was argued that the complainant's
conduct
and emotional state were consistent with her having previously
given
false evidence.
I
must confess to having considerable reservations about certain
aspects of the affidavits
of Mrs H. and the complainant's
mother.
It seems to me that there is a strong improbability that a young
girl
would came forward spontaneously in the manner and circumstances
suggested by Mrs H.,
particularly so long after the trial, bearing
in
mind that the prospect of the appellant's incarceration had been
13
present
ever since. Other matters which cause me concern are, inter alia
,
the following. I find it difficult to accept that Mrs H., the
sister
of the complainant's mother, was unaware that the trial had been
concluded
(something which had occurred 15 months ago, and had been
followed
by an unsuccessful appeal the previous month). Equally
strange
(and unexplained) is the fact that she never told the
complainant's
mother either about the complainant's initial wish to make
an
affidavit or the fact that she had done so. The complainant's
affidavit
carries a note at the
foot thereof "This statement taken down in the presence of my
guardian Mrs B.H." and is signed by
Mrs H. as
"guardian".
By her own admission Mrs H. was
not
present when the body of the affidavit was allegedly taken down by
attorney Pillay, and there is nothing to suggest that she
was ever
the
14
complainant's
"guardian". A further criticism is that there is no
affidavit by either
attorney Pillay, who is said to have prepared the
complainant's
affidavit, or the policeman who attested it. Finally, I find
it
somewhat astonishing that the complainant's mother (if she is to be
believed) first heard
about the complainant's affidavit when contacted by
the
appellant's attorneys with a view to a consultation with counsel.
But
even if Mrs H.'s affidavit is taken at face value, a far
more
plausible explanation for the complainant's distressed state and
subsequent making of an
affidavit would seem to be the fact that she was
improperly
influenced into doing so by her mother who has every reason
to
wish to stave off imprisonment for the appellant. Reference has
already been made to the
fact that attempts were made to withdraw the
charges
before the prosecution commenced. After the complainant had
15
given
her evidence in chief the prosecutor placed on record that the
complainant had advised him that she had been contacted by her mother
who had tried to influence her not to proceed with the case. In this
regard the following passage appears in the evidence of the
complainant
under
cross-examination:
"Didn't
your mother get your permission to withdraw this case
against
your father and that's why you didn't come to court in the
morning
on Monday? â You see my mother always - my mother
phoned
home, right, and she says I mustn't put him in gaol, because she
feels sorry for him. And then if - my mother is
outside,
you can tell her to come inside, you can ask her, and -and then she
told me I mustn't put him in gaol because she feels
sorry for him,
and all my aunties and uncles said I must just do
what's
right and I must just tell the truth. So now I'm telling the
truth
and nothing else. (Witness answers in tears)"
The
complainant's mother's claim that she only heard about the
complainant's affidavit at a late stage strikes one as a conscious
attempt
on her
part to distance herself from any suggestion that she influenced
16
the
complainant. An affidavit by attorney Pillay as to the circumstances
in which he came to prepare the complainant's affidavit, and
her
emotional state at the time,
might have had an important bearing on this
issue.
On
a conspectus of all the factors that bear upon the issue I am of
the
view, taking the matter at best for the appellant, that there is no
reasonable possibility of
the complainant's affidavit being the truth. In
the
result the second requirement in S v De Jager (supra) has not been
satisfied.
Mr
Singh contended that, even accepting this to be so, this Court
has
an overriding discretion to remit a matter for further evidence if
the
circumstances justify
such a course. He referred us in this regard to S
v
De Jager (supra) at 613 E-F and S v Myende 1985(1) SA 805 (A) at
17
811
F. On the assumption that this Court has such a discretion, it will
only be exercised in rare
instances where special reasons for doing so
exist.
Myende's case is an example of such an instance. The present
matter
does not fall into that category. Cases of a sexual nature where
the
only witness is a young child are relatively commonplace. It would
be
a dangerous precedent, and one which could lend itself to abuse,
were
this Court, on account of that reason alone, to exercise its
discretion in favour of
an appellant where there has been a recantation.
In
my view, given all the circumstances, this is not a matter where it
would be appropriate for
us to exercise any discretion we may have in
favour
of the appellant. The application for remittal can therefore not
succeed.
That
brings me to the appeal. The complainant's evidence is fully
18
set
out in the judgment of the trial magistrate. There is no need to
repeat it. I have already
referred to aspects of her evidence. It covers
instances
of sexual impropriety extending over a period of more than
two
years. Her testimony is an interesting mix of naivety and graphic,
realistic detail and has
a distinct ring of truth to it. She could only have
testified
from personal experience. That she was sexually abused, as
previously
observed, permits of no doubt. The evidence suggests the
appellant
as the obvious culprit. The complainant is corroborated in two
important respects. The first relates to an incident where
she
testified
that she was fetched from school one morning by the
appellant and
thereafter taken
home and sexually molested by him. Contemporaneous school records
support her evidence that she was fetched by
someone who purported to
be her father. Despite the appellant's denial, the
19
person
concerned could only have been him. The second refers to the
occasion
when she was forced to watch a pornographic video while
being
obliged to perform sexual acts on and with the appellant. The
appellant admits to
having had possession of a pornographic video
although
he claims, unconvincingly, to have watched it in different
circumstances.
The
magistrate was aware of the need to approach the
complainant's
evidence with the necessary caution dictated by the
circumstances.
He was also fully alive to the shortcomings in her
evidence.
He weighed up her evidence against that of the appellant and
came
to the conclusion that he could safely accept the former and reject
the latter. His reasons
for such conclusion cannot be faulted. It was not
suggested
that he had misdirected himself in any material respect. In the
20
circumstances
no grounds exist for interfering with his findings on the
merits.
The
sentence of six years' imprisonment reflects the seriousness of the
offences committed. The complainant was subjected to persistent
and
humiliating sexual conduct by someone she was entitled to look to
for
care and protection. The appellant abused his relationship with the
complainant in order to gratify his own needs. The circumstances
of
the
offences, the ever
increasing prevalence of that type of offence, the need
to
protect young children and society's abhorrence of such conduct call
for a substantial
sentence. The magistrate did not misdirect himself and
the
sentence does not induce a sense of shock. No justification exists
for interfering with it.
In the
result both the application for remittal and the appeal
21
against the convictions and
sentence are dismissed.
J
W SMALBERGER
JUDGE OF
APPEAL
HOWIE JA
)CONCUR
ZULMAN JA )