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[2016] ZASCA 10
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Van der Bank v S (245/2015) [2016] ZASCA 10 (9 March 2016)
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SUPREME
COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
No: 245/2015
In the
matter between:
DANIËL
JOHANNES STEPHANUS VAN DER BANK
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Van der
Bank v The State
(245/15)
[2015] ZASCA 10
(09
March 2016).
Coram:
Majiedt and Pillay JJA and Fourie, Victor and Baartman
AJJA
Heard:
17 February 2016
Delivered:
09 March 2016
Summary:
Appellant convicted
of rape and indecent assault - sexual intercourse with sixteen
year-old girl who has a mental capacity well
below her age - consent
alleged - consent can only be given by person capable of consenting -
expert evidence proving complainant
incapable of consenting - appeal
dismissed.
ORDER
On
appeal from:
Gauteng
Division
,
Pretoria (Raulinga and Webster JJ and Thlapi AJ sitting as court of
appeal):
The
appeal is dismissed.
JUDGMENT
Pillay
JA (Majiedt JA and Fourie, Victor and Baartman AJJA
concurring)
[1] The
appellant was arraigned on one charge of rape and one charge of
indecent assault in the Regional Court, Pretoria. It was
alleged that
he committed these offences during 1999 at Waverley and Rietfontein,
Pretoria, on a 16 year-old girl by having sexual
intercourse with the
complainant and by inserting his finger into her vagina respectively.
He was represented throughout the trial
and pleaded not guilty to
each count. He tendered a written explanation of the pleas in terms
of s 115 of the Criminal Procedure
Act 51 of 1977 (the Act) through
his representative and subsequently confirmed the contents. It was
then read into the record.
It is necessary to quote this statement
and it reads as follows:
‘
Ek,
die ondergetekende, Daniël Johannes Stephanus van der Bank
verklaar hiermee:
1.
Ek is die beskuldigde.
2.
Ek ontken dat ek [the
complainant] verkrag of onsedelik aangerand het.
3.
Ek erken dat ek op drie
geleenthede volle gemeenskap met [the complainant] gehad het naamlik:
“
3.1
gedurende September 1999 te 21ste Laan 829, Rietfontein, en
3.2
gedurende Oktober 1999 te
Dunwoodeelaan 1301, Waverley, en
3.3
gedurende November 1999
te 21ste Laan 829, Rietfontein.
4.
Ek bevestig dat die
voormelde gemeenskap met haar toestemming en aktiewe deelname geskied
het.
5.
Gedurende die tydperk
September 1999 tot November 1999 het ek op verskeie geleenthede aan
haar privaatsdele gevat met haar toestemming
en inderdaad ‘n
vinger in haar privaatdeel gedruk. Dit het plaasgevind voordat ons
gemeenskap gehad het asook op ander geleenthede
waar ons nie
gemeenskap gehad het nie.”
[2]
Immediately before the complainant was called to testify, the
prosecutor indicated that she wished to call a Ms Schoeman to
testify
and to apply for her to be appointed as intermediary to assist in the
testimony of the complainant on the basis that the
complainant was
mentally challenged. The record reflects that the defence had no
objection thereto. Unfortunately what happened
immediately thereafter
escaped recording for some reason or another. However, it appears
from the record that the intermediary
was duly appointed and did
assist the complainant in testifying.
[1]
At the conclusion of the evidence the appellant was convicted on both
counts and the matter was transferred to the High Court for
sentencing. On 27 March 2007, the convictions were confirmed in the
High Court and were taken together for sentence. On 23 July
2007 he
was sentenced to 12 years’ imprisonment, of which four years
were conditionally suspended for five years.
[3] The
appellant was then granted leave to appeal to the full court,
Pretoria. This appeal was heard on 3 November 2010 and dismissed
on
19 December 2014. Leave to appeal was refused by it. It bears
mentioning that the full court did not have the power to consider
an
application for leave to appeal - only this court is empowered to do
so in terms of
s 16(1)(b)
of the
Superior Courts Act 10 of 2013
.
He was
thereafter granted special leave to appeal against the convictions by
this court in the following terms:
‘
1.
Special leave to appeal is granted to the Supreme Court of Appeal.
2. The
leave to appeal is limited to the following:
Leave to
appeal is limited to the issue whether the complainant’s
evidence was inadmissible on the basis that it was given
through an
intermediary in conflict with the provisions of
s 170A
of the
Criminal Procedure Act as
applicable at the time she gave evidence.’
[4] When
the matter was initially set down for the appeal hearing the parties
were requested to prepare further argument on the
following:
“
The
parties are required to submit further written argument on whether
the evidence, excluding the evidence of the complainant,
is in any
event sufficient to sustain a conviction. In addition the parties
must address the question whether factually the recorded
evidence of
the complainant reflects her own words or the intermediary’s
expression of what she was told by the complainant.”
This
request led to the postponement of the appeal and the parties
submitted supplementary heads of argument accordingly. At the
time
the complainant testified on 17 March 2003,
s 170A(1)
the Act read as
follows:
‘
170A.
Evidence through intermediaries.
—
(1)
Whenever criminal proceedings are pending before any court and it
appears to such
court
that it would expose any witness under the age of eighteen years to
undue mental
stress or
suffering if he or she testifies at such proceedings, the court may,
subject to
subsection
(4), appoint a competent person as an intermediary in order to enable
such
witness
to give his or her evidence through that intermediary.’
[5] It is
common cause that the complainant was 19 years old when she
testified. The appellant submitted that in terms of s 170A(1)
as it
then was, once the witness reached the age of eighteen, there was no
power or discretion to invoke s 170A.
[6]
The introduction of s 170A was brought about by the need to allow
child witnesses to give evidence in conducive surroundings
and to be
at ease or as close thereto as circumstances allowed when testifying,
in order to achieve a just verdict. It has been
subjected to
criticism in relation to the fundamental right an accused person has
to confront his or her accusers. The balance
between protecting child
witnesses and an accused’s right to a fair trial, sought to be
achieved by invoking s 170A, has
however been found to be
constitutionally sound.
(See:
K
v The Regional Court Magistrate NO & others
1996 (1) SACR 434
(E);
Director of Public
Prosecutions, Transvaal v Minister of Justice and Constitutional
Development & others
[2009] ZACC 8
;
2009
(2) SACR 130
(CC).) The section was subsequently amended in 2007 by s
68 of Act 32 of 2007 to include not only witnesses who were
biologically
under the age of eighteen but also those who were
regarded as mentally under the age of eighteen.
[7]
Relying on
S v Dayimani
2006 (2) SACR 594
(E), it was argued
on behalf of the appellant that s 170A of the Act authorized the use
of an intermediary only in instances where
the witness was under the
age of eighteen and that any evidence tendered through an
intermediary by a person who is eighteen or
over is inadmissible. It
was further submitted that the court below was incorrect in ruling
that the section must be interpreted
to include the mental age of the
witness. It was argued that if that were so, then the legislature
would not have found it necessary
to amend it to specifically include
persons who were mentally below the age of eighteen.
[8] In
Dayimani
, the complainant was regarded as ‘moderately
mentally retarded’ and s 170A was nonetheless invoked (wrongly
so that
court held) because the complainant was eighteen years old at
the time of testifying. It is not necessary to consider whether
Dayimani
has been correctly decided. The proper approach, in
my view, would be to consider the evidence other than that adduced by
the complainant
and assess it to establish whether the convictions
should be sustained or set aside.
[9] As
can be seen from the appellant’s plea explanation, he admitted
to engaging in sexual intercourse with the complainant
and that he
had touched and inserted his finger into the complainant’s
vagina. The only issue therefore is whether all of
this had been done
with her consent.
[10]
By definition, common law rape is the unlawful and intentional sexual
intercourse by a person without the consent of the other.
Consent has
to be free, voluntary and consciously given in order to be valid. In
our law, valid consent requires that the consent
itself must be
recognised by law; the consent must be real; and the consent must be
given by someone capable of consenting.
[2]
The first two requirements do not need to be discussed since the
issue is whether the complainant was capable of giving consent
-
related to the third requirement. Where a person in intellectually
challenged, his or her condition must be expertly assessed
and only
then can a finding as to such capability be made. In order to prove
that the complainant was incapable of giving consent,
the State
called a number of witnesses.
[11] The
mother of the complainant testified on behalf of the State. She
testified that the complainant was born on 3 August 1983
after a
complicated pregnancy. The complainant had suffered brain damage as a
result of complications during the pregnancy and
at birth. As a
consequence, the complainant functioned at an intellectual level
below her age from a very early age and this required
special
handling by her as a mother. This included regularly teaching her how
to dress and also fundamental life skills before
she was able to do
it herself. She always had communication problems with other people.
She explained that at the time of testifying,
the complainant had
been taken out of Sonnestraal School for moderately mentally
challenged children at the school’s request
because she
functioned at a level that the school could not improve on.
[12] The
complainant’s mother testified that she worked for the
appellant and had established a good relationship with him.
The
arrangement would be that she would cook during lunch time and also
fetch the complainant from school. Sometimes she would
ask a fellow
worker or neighbours to fetch the complainant when work commitments
prevented her from doing so. At times the appellant
would offer to do
so. This developed into a steady pattern. She also testified that she
and the appellant had spoken about the
complainant’s mental
condition and the reasons for her being at a special school.
[13] She
testified that on one occasion when they were driving, the
complainant indicated that she was experiencing discomfort in
her
genital area despite having taken a bath earlier that day. This the
mother found strange since bathing during the day was not
routine.
When they got home, her mother applied ointment to the affected area
of the complainant. The next day, when they were
again in the motor,
the complainant again complained about the condition in her genital
area. Her mother then questioned the complainant
who explained that
it was the appellant who had inserted his finger into her vagina and,
upon further probing, it emerged that
he had engaged in sexual
intercourse with her. The complainant’s mother stated that when
she confronted the appellant at
the office he admitted guilt. It is,
however, not clear from the record what he admitted guilt to.
[14]
Thereafter she went to see an attorney and this culminated in charges
being brought against the appellant. Much of her evidence
entailed
lengthy explanations about the complainant’s abnormal mental
condition and the unusual way she related to people.
This was never
disputed.
[15] The
State also called a registered psychologist, Jakoba Petronella
Barnard, who had drafted a report on her examination of
the
complainant and findings in December 1999, when the complainant was
16 years old. She sketched a brief history of the complainant’s
life. During the consultations she applied psychological tests, held
conversations with the complainant and observed her behaviour.
Her
evaluation of the complainant was that she was intellectually
seriously retarded and operated on a mental level of approximately
eight and a half years old. This accorded with the results of the
tests, consultations and observations of the complainant as well
as
with the information gained from her mother and her teacher.
[16]
Barnard specifically stated that the complainant did not conduct
herself as a 16 year-old in respect of her conversations and
behaviour. Under cross-examination Barnard emphatically stated that
any lay person would quickly detect that the complainant did
not
function at the level of an ordinary 15-16 year-old person. She
conceded that a layman could place the complainant mentally
between
12-14 years. When invited to extend the concession to 16 years, she
did not and repeated that any lay person would realize
that the
complainant was functioning well below the level of a 16 year-old.
[17] Dr
Paul Henry De Wet, a qualified and registered psychiatrist since 1991
and a specialist in forensic psychiatry was also called
by the State.
He heads the Forensic Psychiatry Unit at Weskoppies Hospital and runs
a part-time private practice. He was called
to testify about his
findings after evaluating the complainant on the 11 January 2005,
when she was 21 years old. His brief was
to establish whether she
could understand court proceedings and whether she could give
informed consent. From reports he established
that the complainant’s
birth was prefaced by a complicated pregnancy during which the foetus
lost blood and that she had
breathing complications resulting in
convulsions immediately after birth. She consequently suffered brain
damage. The developmental
milestones like sitting, taking her first
steps, speech and so forth were delayed and developed at a much later
stage than would
be expected in normal children.
[18]
Because of her emotional and intellectual impairment, she had to
receive primary school education in a special class. Her ability
to
socialize was therefore restricted and any normal person would
immediately realize that the complainant suffered from an
intellectual
defect. In his assessment the complainant ‘is not
capable of understanding court proceedings and is unable to
contribute
meaningfully to the procedures.’ Furthermore that
the complainant ‘is, secondary to her impaired intellectual
functioning,
not capable of giving informed consent’.
Significantly these findings, in particular the latter, were never
disputed.
[19] The
State also called Ms Terblanche, the complainant’s erstwhile
teacher at Sonnestraal School, a school for moderately
mentally
challenged pupils with learning disabilities. She taught the
complainant for two years at a level of standard two. The
complainant
was a weak pupil who would learn by way of becoming accustomed to
what she was taught because it would have to be repeated
many times.
Ms Terblanche said that the complainant was not emotionally ready to
indulge in sexual activity. Though the school
did offer sex
education, she could not say whether the complainant attended such
lessons since it could only be attended with her
mother’s
permission.
[20] The
63 year-old appellant testified in his own defence. In view of his
admissions, it is not necessary to consider in detail
the appellant’s
evidence, but only the material aspects thereof. The appellant has a
short post matric qualification. He
confirmed that the complainant
and her mother had taken up residence in one of his houses in 1997.
Later the complainant’s
mother started to work for him. Such
work entailed her sometimes having to leave town and she would ask a
neighbour in what appeared
to be a complex where they lived to fetch
the complainant from school. The appellant stated that he himself did
so on many occasions.
He explained that he had developed a reasonably
comfortable relationship with the complainant and they used to
converse in ‘her
way’. He did not think she was very
bright.
[21]
According to the appellant, the complainant would often playfully
tickle him. This developed into a situation that he did the
same to
her, sometimes in front of her mother. He testified that on one
occasion during September 1999, he had to go and attend
to a problem
in one of his houses. The complainant went with him. When they were
in a bedroom in his house, she put her arm around
his waist and a
tickling episode between them occurred as a result of which, they
landed on a bed. During this, he accidentally
touched one of her
breasts. He enquired from her if she minded and according to him, she
said she did not, in fact liked it and
that he could continue to do
so. As he put it, one thing led to another and he then inserted his
finger into her vagina and thereafter
they engaged in sexual
intercourse. He described the event as a mutual encounter and that
she was an active participant. He described
other similar incidents
with her which occurred in the following months of October and
November 1999. He emphasised that on each
occasion when he had sex
with her, her vagina had become moist with natural bodily lubricant.
He testified that he interpreted
this and her conduct immediately
prior to and during these episodes of sexual intercourse as consent.
[22] He
further testified that as far as he was concerned, the complainant
was not stupid but had an intelligence level from which
he did not
expect great intellectual achievement. Moreover he did have a
conversation with her mother about her mental aptitude
and why she
went to a special school. He accepted that she needed special
attention because she was not very bright. He however
conceded that
when he did bring her home, he had to dish up food for her and that
he had handled her like a child. He also testified
that during this
period during which he had sexual intercourse with her, he was aware
that she was 16 years old and that he saw
her as a mere sex-object.
In summary, his evidence regarding his defence to the charges is that
she consented to his having intercourse
with her and inserting his
finger into her vagina.
[23] The
trial court was correct in rejecting the appellant’s contention
that the complainant had consented to engage in these
activities. He
knew that she was backward with a mental age of far less than 16
years - her biological age in 1999. He knew that
she was attending a
special school for moderately mentally challenged children and had
discussed this with her mother. He knew
she had to be guided and he
did so himself at times. Moreover the undisputed evidence of both
Miss Barnard and Dr De Wet is that
any ordinary person would soon
realise that the complainant was mentally challenged. In particular
Dr De Wet’s undisputed
finding that she was incapable of giving
consent is overwhelming and proves that she was incapable of giving
consent.
[24] In
the circumstances the appellant’s defence cannot be sustained
since he must have known and therefore knew that she
was incapable of
giving the required consent. The State has proved his guilt on both
counts beyond a reasonable doubt and the appeal
falls to be
dismissed.
[25] In
the result:
The
appeal is dismissed.
R Pillay
Judge of Appeal
Appearances
:
For
Appellant:
H F Klein (Heads of argument prepared by J J Strijdom SC)
Instructed by:
Rianie Strijdom Attorneys, Pretoria
Symington & De Kok
Attorneys, Bloemfontein
For
Respondent:
J J Jacobs
Instructed by:
The Director of Public Prosecutions,
Pretoria
The Director of Public Prosecutions,
Bloemfontein
[1]
A
certificate of appointment as an intermediary at S 318 of the record
suggests that she is nonetheless a
member of a
class of persons proclaimed by the Minister of Justice and
Constitutional Development in the
Government
Gazette
as being competent to be appointed as intermediary in terms of s
170A(4)(a) of the Act.
[2]
Jonathan Burchell South African Criminal Law and Procedure Volume 1:
General Principles of Criminal Law 4
th
ed (2011) at 217. See also:
S
v SM
[2013] ZASCA 43
;
2013
(2) SACR 111
(SCA) para 37;
S
v Notito
[2011] ZASCA 198
para 6.