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[2015] ZAWCHC 134
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Mathikinca v S (A551/14) [2015] ZAWCHC 134; 2016 (1) SACR 240 (WCC) (18 September 2015)
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
[WESTERN
CAPE HIGH COURT, CAPE TOWN]
Case
No.: A551/14
In
the matter between:
MTHOBELI
MATHIKINCA
Appellant
and
THE STATE
Respondent
JUDGMENT
DELIVERED: 18 SEPTEMBER 2015
FOURIE, J:
[1]
The appellant stood trial in the regional court, Bredasdorp, on a
charge of rape as defined in
s3
of the
Criminal Law (Sexual Offences
and Related Matters) Amendment Act No. 32 of 2007
, in that he had
committed an act of sexual penetration with a four year old girl
(“the complainant”) by inserting his
finger and/or
similar object in her anus and/or private parts. He pleaded not
guilty, but after hearing evidence the regional magistrate
found him
guilty as charged. He was thereupon sentenced to imprisonment for
life in accordance with the provisions of the
Criminal Law Amendment
Act No. 105 of 1997
.
[2]
In terms of section 309 of the Criminal Procedure Act No. 51 of 1997,
as amended by Act No. 42 of 2013, the appellant, having
been
sentenced to imprisonment for life by a regional court under s51 (1)
of Act 105 of 1997, has an automatic right of appeal
against his
conviction and sentence. He duly noted an appeal against his
conviction and sentence.
[3]
It is common cause that the complainant was in the company of the
appellant on the day of the alleged commission of the offence.
According to her mother she bathed the child during the early
afternoon of that day, whereafter the complainant left to play with
friends of hers in the neighbourhood. She was again seen late the
afternoon when her father and a Mr. Jaars noticed the appellant
walking in the street whilst carrying the complainant on his back.
According to the appellant he had come across the complainant
in the
course of the afternoon when she asked him for money to buy sweets
and he then proceeded to buy her some sweets at a local
shop.
Appellant says that he carried her on his back as dogs had threatened
to attack her. He says that he was on his way to take
the complainant
home. I should add that the appellant and the complainant were known
to each other, as they resided in the same
neighbourhood.
[4]
The father of the complainant noticed dried tears on her face, but
was not really concerned about her being in the company of
the
appellant; in fact, he requested the appellant to take her home. On
the way to the complainant’s home, they saw the complainant’s
mother, whereupon the appellant took the complainant off his back and
put her down in the road. According to the mother they were
approximately 200 meters apart when this happened. The appellant
testified that he acted in this manner as they were close to the
complainant’s home.
[5]
The mother testified that the complainant then told her that ‘hy
(the appellant) het sy penis gevat en in my gedruk’,
but that
the complainant ‘kon nie verduidelik waar presies hy sy penis
in haar in gedruk het nie’.
On the strength of this report charges were laid against the
appellant and at 20h30 the same evening the complainant was examined
by a medical practitioner. Her conclusions were stated thus in her
medical report:
‘
Pasiënt
se ondersoek pas in met ‘n onsedelike aanranding. Moontlike
anale penetrasie met vinger. Geen genitale anale
tekens van…’
(The latter sentence was incomplete).
‘
Tekens
dat pasiënt anaal aangerand is, moontlik gepenetreer met
vinger/voorwerp’.
[6]
In her testimony the medical practitioner stated that the complainant
had bruises on her legs and fresh fissures and bruises
in the anal
area. She opined that the anal injuries could have been caused by any
object such as a finger and even a penis. I should
add that the
medical report also records what the complainant had told the doctor,
in particular, ‘…
na vele
verduidelikings sê sy hy het periaal en vaginaal haar
betas/penetreer met sy vinger.’
[7]
The State did not call the complainant as a witness at the trial and
no reason for this was advanced. Nor was any attempt made
by the
prosecutor to present the complainant’s evidence through an
intermediary in terms of s170A of Act 51 of 1977. At the
hearing of
the appeal, this court enquired whether, in circumstances where the
complainant did not give evidence, the terms of
the complaints made
to her mother and the medical practitioner, could be admitted as
evidence.
[8]
The report made by the complainant to her mother, referred to above,
was relied upon by the State in seeking the conviction
of the
appellant. It also formed an integral part of the reasoning of the
magistrate in concluding that the guilt of the appellant
had been
proved beyond reasonable doubt.
[9]
It is now trite law that the fact of a complaint and its terms are
admissible in proceedings relating to sexual offences, as
establishing consistency in the complainant’s evidence and
therefore supporting her credibility. See
S v
Hammond
2004 (2) SACR 303
(SCA) at para 17.
[10]
However, if the complainant gives no evidence at all, neither the
terms of the complaint nor the fact that it was made can
be
ordinarily admitted. As stated by DT Zeffert and AP Paizes,
The
South African Law of Evidence
2
nd
edition page 452, the complaint, whose probative purpose is to show
consistency, would, in the event of the complainant failing
to give
evidence, be inadmissible precisely because it would be absurd to
regard a statement as being consistent with something
that does not
exist. In
Rex v Kgaladi
1943 AD 255
, the following was said at 261:
‘
From
all these authorities it is, therefore, clear that, when the evidence
of the complainant is not before the court, neither the
particulars
of a complaint made by her, in the absence of the accused, nor the
bare fact that a complaint was made, can be given
in evidence’.
In
Rex v Malete
1907 TH
235
, Bristowe J was faced with a similar situation and stated:
‘
If
a child of three years old cannot give evidence in court, how can she
give evidence through her mother?.
[11]
I have considered whether the provisions of s58 of the Criminal Law
(Sexual Offences and Related matters) Amendment Act 32
of 2007,
assist the State. The relevant part of s58 reads as follows:
‘
Evidence
relating to previous consistent statements by a complainant shall be
admissible in criminal proceedings involving the alleged
commission
of a sexual offence…’
As
explained in
The South African Law of
Evidence
, supra at 452, the section in effect
restates the common law position, ie previous consistent statements
by a complainant shall
be admissible in criminal proceedings
involving the alleged commission of a sexual offence, to show the
consistency of the complainant.
Therefore, if the complainant does
not give evidence, a previous statement is inadmissible.
[12]
I should add that I have also considered the provisions of
s3
of the
Law of Evidence Amendment Act No. 45 of 1988
, which makes provision
for the admittance of hearsay evidence in certain prescribed
circumstances. However, at the trial the State
did not attempt to lay
any basis for the invocation of this statutory provision. Nor can it
be said that the defence has specifically
agreed to the introduction
of the complaint, being hearsay evidence, in terms of the provisions
of
s3
(a) of Act 45 of 1988. A reading of the record rather shows
that all the parties involved, including the presiding magistrate,
simply did not consider the issue of the admissibility of this
evidence.
[13]
It follows that the statements made by the complainant to her mother
and the medical practitioner, could not be relied upon
by the State
in their quest to prove the guilt of the appellant. In the
circumstances, counsel appearing for the State at the appeal
was
constrained to submit that the remaining circumstantial evidence was
sufficient to prove the guilt of the appellant beyond
reasonable
doubt. The defence, on the other hand, submitted that a careful
reading of the record shows that the circumstantial
evidence does not
exclude the reasonable inference that the injuries to the
complainant’s private parts could have been caused
in a manner
unrelated to any conduct on the part of the appellant.
[14]
In my view the remaining circumstantial evidence, even when bolstered
by the less than satisfactory evidence given by the appellant,
does
not prove beyond reasonable doubt that the appellant had sexually
assaulted the complainant. There is, in fact, insufficient
evidence
to justify a reasonable inference that the appellant had molested the
complainant.
[15]
The questions raised by this court during argument prompted counsel
for the State to hesitantly suggest that a remittal of
the case to
the regional court for the hearing of further evidence should be
considered. In the light of this suggestion we invited
the parties,
if so inclined, to present us with a substantive application for our
consideration. We subsequently received an application
by the State
in which an order is sought ‘reviewing and setting aside the
conviction and sentence’ and remitting the
matter to the
regional court for hearing
de novo
before another presiding officer in terms of
section 304
(2) (c) (v)
of the
Criminal Procedure Act 51 of 1977
. The application is opposed
by the appellant.
[16]
Section 304
of the
Criminal Procedure Act deals
with the High Court’s
powers of review. Subsection 304 (2) (c) (v) provides that, where it
appears that the proceedings of
a lower court are not in accordance
with justice, or that doubt exists whether the proceedings are in
accordance with justice,
the High Court, after obtaining reasons from
the presiding officer, may remit the case to the lower court with
instructions to
deal with any matter in such manner as the High Court
may think fit. This would include the power to direct the presiding
officer
to hear further evidence. In terms of
section 309
(3) of the
Criminal Procedure Act, the
High Court hearing an appeal from a lower
court, shall have the powers referred to in
section 304
(2) of the
said Act. This includes the power to hear further evidence on appeal
(s304 (2) (b)) or to remit the case to the magistrate
with the
direction to hear further evidence.
[17]
The power of a court of appeal to remit a criminal case to the trial
court for further evidence to remedy a deficiency in the
State’s
case, will be sparingly exercised and only in exceptional
circumstances. See the general discussion of this topic
in
Hiemstra’s
Criminal Procedure
at 30-46 and following. In
S v Hanuman
[1998] 1
ALL SA 254
(A), the Supreme Court of Appeal reiterated that it is a
fundamental and settled principle that, when a decision has been
given
on an issue, further evidence will only be allowed in
exceptional circumstances. There have to be special reasons before a
court
of appeal will exercise its discretion. In
S
v Stevens
1983 (3) SA 649
(A) at 661 B-C, the
following principles laid down in
S v
Mokgeledi
1968 (4) SA 335
(A) at 338H-339B,
were restated:
‘
Normally,
remittal for the hearing of further evidence will only be ordered
where the desired evidence is of a merely formal or
technical
character or is such as would prove the case without delay and
without real dispute; where it has been omitted at the
trial, not
deliberately, but by oversight, and where, in addition, a
satisfactory explanation is furnished as to why the desired
evidence
had not been adduced in the first instance.’
[18]
In
Stevens
at 661D, it
was reiterated that, fundamental to the approach of the courts in
such cases, is a recognition of the truths that,
while it is in the
interest of justice and in the public interest that those who are
guilty of an offence ought to be convicted,
it is also in the
interest of justice that finality should be reached in criminal cases
and that they should not be allowed to
drag on indefinitely. In our
present constitutional dispensation one should add that, in terms of
section 35 (3) of our Constitution,
every accused person has a right
to a fair trial, which includes the right to have his or her trial
begin and conclude without
unreasonable delay.
[19]
What one gathers from the application of the State, is that the
remittal of the matter to the court below would be for the
purpose of
leading the evidence of the complainant. The reasons put forward for
the failure to call the complainant at the trial
are two-fold.
Firstly, it is stated that, during consultation, the complainant
became emotional and a proper consultation with
her could not be
held. Secondly, it is stated that a victim impact report was compiled
which indicated that the child could not
differentiate between wrong
and right and could not tell the difference between the truth and a
lie.
[20]
The first reason is woefully inadequate to serve as a basis for an
application of this nature. It is not uncommon that young
witnesses
may be emotional during consultation, but no attempt is made in the
papers to show that her emotional state would have
precluded her from
giving evidence. It should be borne in mind that at the time of the
trial the complainant was 5½ years
old. Nor is any explanation
proffered for the failure to invoke the provisions of
s170A
of the
Criminal Procedure Act, for
the appointment of an intermediary
through whom the complainant’s evidence could be presented.
[21]
The second reason put forward refers to a victim impact report which
had been compiled, but same is not annexed to the application
papers
before us. Nor was such a report presented to the trial court. The
only victim impact report which forms part of the record,
is exhibit
D, which does not deal at all with the issue whether or not the
complainant was fit to give evidence at the trial.
[22]
It follows that this court is left completely in the dark as to the
surrounding circumstances which led to the decision not
to call the
complainant as a witness. As indicated earlier, the onus is on the
State to provide a satisfactory explanation for
this failure. Not
only has the State failed to provide this satisfactory explanation,
but it seems that, in any event, the decision
not to call the
complainant as a witness had been deliberately taken and had not been
the product of an oversight or misapprehension.
I should add that the
application before us has been brought on the strength of an
affidavit deposed to by counsel appearing for
the State in this
appeal, but no affidavit has been filed by the prosecutor who had
taken the decision at the time.
[23]
Apart from the aforesaid, it is clear that the nature of the evidence
which the State now belatedly wishes to tender, is not
merely of a
formal or technical character, but substantive evidence which goes to
the heart of the real dispute between the parties.
Where it had been
deliberately omitted at the trial, with the State relying mainly on
hearsay evidence to prove its case, one has
to ask why the appellant
should now, some three years after the trial in the regional court
had commenced, be required to face
a trial
de
novo
caused solely by the State’s
failure to properly present its case in the first instance.
[24]
I should add that, in the present application, there is also no
affidavit deposed to by any person who has personal knowledge
of the
present circumstances of the complainant. She is now 8½ years
old and we only have the hearsay statement of the state
advocate in
her founding affidavit, that “…
because
the child is now 8 years old, she will be able to differentiate
between right and wrong; between a lie and the truth. The
children
are taught at school to make such differentiations.”
[25]
Not only do these allegations constitute hearsay evidence, but they
in any event amount to no more than pure speculation. It
may be, if
the matter were to be remitted to the regional court for the hearing
of further evidence, that the complainant may still
not be able to
enlighten the court as to what actually transpired, if anything,
between her and the appellant on the day in question.
The problem, as
I have said before, is that this court is simply left in the dark.
[26]
I am accordingly of the view that the State’s application for
the remittal of the matter to the court below for the hearing
of
further evidence, should be refused. As I have indicated earlier, the
admissible evidence tendered by the State at the trial
does not prove
the guilt of the appellant beyond reasonable doubt. His evidence as
to what had transpired between him and the complainant
on the
afternoon in question, may well be reasonably possibly true.
Therefore the conviction and sentence cannot stand.
[27]
In the result I propose the following order:
1.
The application of the respondent to review and
set aside the conviction and sentence imposed by the regional court
on 27 November
2012, and to remit the matter to that court for
hearing
de novo
in
terms of
s304
(2) (c) (v) of Act No. 51 of 1977, is refused.
2.
The conviction and sentence imposed by the court
a quo
on 27 November
2012 are set aside and the following substituted therefor:
“
The
accused is found not guilty and discharged.”
____________
P B Fourie, J
I
agree.
_____________
Van Staden, AJ