Court name
Supreme Court of Appeal of South Africa
Case number
1192 of 2017

Haarhoff and Another v Director of Public Prosecutions Eastern Cape (Grahamstown) (1192 of 2017) [2018] ZASCA 184 (11 December 2018);

Law report citations
[2019] 1 All SA 585 (SCA)
2019 (1) SACR 371 (SCA)
Media neutral citation
[2018] ZASCA 184
Coram
Navsa ADP
Mocumie J
Molemela JA
Mokgohloa J
Nicholls AJA

THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA



JUDGMENT



Reportable



Case
No: 1192/17


In
the matter between:



JOEY
HAARHOFF                                                                                FIRST

APPELLANT



IAN
BAARTMAN                                                                              SECOND

APPELLANT


and


DIRECTOR
OF PUBLIC PROSECUTIONS


EASTERN
CAPE
(GRAHAMSTOWN)                                                          RESPONDENT


 


Neutral
citation:
Haarhoff
& another v Director of Public Prosecutions, Eastern Cape

(1192/17) [2018] ZASCA 184 (11
December 2018)


Coram:
Navsa
ADP, Mocumie and Molemela JJA and Mokgohloa and Nicholls AJJA


Heard:
8
November 2018


Delivered:
11
December 2018


Summary:
Admonition
in terms of s 164 of Criminal Procedure Act – procedure to be
followed – competence discrete enquiry –
whether witness
understands what it means to speak the truth – unchallenged
evidence of expert and examination by court -
test satisfied






ORDER





On
appeal from:
Eastern
Cape Division, Grahamstown (Brody AJ with Chetty J concurring and
Mjali J dissenting, sitting as court of appeal):


The
appeals against the appellants’ convictions and sentences are
dismissed.





JUDGMENT





Molemela
JA (Navsa ADP, Mocumie JA and Mokgohloa and Nicholls AJJA concurring)


[1]
The two appellants and a third person (C) were arraigned on a charge
of rape in contravention of section 3 of the Criminal Law
(Sexual
Offences and Related Matters) Amendment Act 32 of 2007 (Sexual
Offences Act) in the Eastern Cape Division of the High Court
sitting
at Graaff Reinet (trial court). They all pleaded not guilty and gave
a plea explanation as contemplated in s 115 of the
Criminal Procedure
Act 51 of 1977 (CPA). In their brief plea explanation, the two
appellants admitted having had sexual intercourse
with the
complainant ‘on separate and distinct occasions’ but
stated that it was consensual. C denied that he had sexual

intercourse with the complainant and that he had knowledge of the
fact that the appellants had had sexual intercourse with her.
At the
end of the proceedings, on 2 April 2015, C was acquitted, while the
two appellants were convicted and sentenced to 20 years
imprisonment,
respectively.


[2]
Aggrieved by their convictions and sentences, they applied for and
were granted leave to appeal against both their convictions
and
sentences to the full court of the Eastern Cape Division of the High
Court, Grahamstown. In a split decision of that court,
Chetty J and
Brody AJ (the court a quo) dismissed their appeal against convictions
and sentences, while Mjali J delivered a dissenting
judgment. Mjali J
would have upheld the appeal. After unsuccessfully applying for leave
to appeal against the majority decision,
the appellants directed an
application to this court. This appeal is with leave of this court.


[3]
The incident that led to the appellants’ prosecution played
itself out in the small town of Pearston, situated in the
Eastern
Cape. The complainant’s version, in a nutshell, was that she
was returning
home
in
the
early evening of 30 April 2013
when she was accosted by the two appellants at the corner of the
street. They pulled her into the
house of C, which is situated in the
same street as the complainant’s home. The appellants forced
her into C’s house.
They threw her onto a bed and pulled her
pants down. She did not put up a fight because one of them threatened
to smack her if
she resisted. The two appellants then took turns in
raping her, while holding her down and closing her mouth. At some
point, her
legs were tied to a bed in the house.
Although
a previous statement given to the

investigating officer
apparently implicated C, the complainant confirmed that C was present
during her ordeal but exonerated him
in the rape. She testified that
immediately after the first rape incident, she pulled her pants up
and tried to go home, but the
appellants stopped her from leaving and
raped her a second time. She was held hostage at C’s house
throughout the night.
In the morning, the two appellants and C left
the house together but prevented her from leaving by locking her
inside the house.
She remained in the house until she was discovered
by Ms N J, referred to as G, who happened to see her through the
window. G in
turn summoned the complainant’s guardian, Mrs S.


[4]
In her testimony, Mrs S gave a brief background about the
complainant’s history and also shed some light on the steps
she
took when the complainant failed to return home on the night of the
incident. Mrs S testified that she became alarmed when

the
complainant
did
not arrive
home
from
her
aunt
in t
he
evening and began
looking for her. She phoned
relatives and friends to make enquiries about her whereabouts and
learnt that she was last seen when
she was leaving her aunt’s
place at approximately 19h00. Enquiries directed at people in the
neighbourhood did not yield
any fruit. She ended up concluding that
the complainant had gone to visit other relatives on a farm. The next
day, she was summoned
to the street and saw the complainant in the
company of G near C’s house. G informed her that she had found
the complainant
in C’s yard, six houses from the complainant’s
home. When Mrs S questioned the complainant regarding her
disappearance
the previous night, the complainant told her that she
had spent the night with the two appellants and C at the latter’s
house.


[5]
Mrs S testified that she accompanied the complainant to the police
station, where rape charges were laid against the two appellants
and
C. On the same day, the complainant was taken to the hospital for
medico-legal examination, during which DNA was taken and
subsequently
sent to the forensic laboratory for analysis. The medical report was
admitted into evidence without oral testimony
of the doctor who had
conducted the medical examination.


[6]
The two appellants testified in their defence and also called
witnesses. The first appellant testified that on 30 April 2013,
the
three of them had consumed a large amount of liquor during the day,
as a result of which C had passed out in his house. The
two
appellants later left C’s house together. About thirty minutes
later, the first appellant returned to C’s house
alone. After a
while, he saw the complainant passing by and called her. The
complainant entered the yard and sat next to him at
the door while
they conversed. It was during that conversation that he suggested to
the complainant that they should have sex and
the complainant agreed.
They had sexual intercourse on a mattress that the second appellant
had put in the room. After that encounter,
he told the complainant to
go home. He heard the door being opened and then being closed and
assumed that the complainant had left.
To his surprise, when he woke
up the next morning, he noticed that the complainant was sleeping on
the same bed as C, but they
were facing opposite directions. At about
06h00, the second appellant came to C’s house and told them
that his cousin, Sous
was calling them (i.e. the two appellants). He,
the second appellant and C left the complainant at C’s house
and proceeded
to Sous’ place, which was about 50 – 70
metres from C’s house. As they were leaving C’s place, he
again
told the complainant to go home. When they arrived at Sous’
house, he invited them to enjoy liquor with him. They jointly

consumed 1½ bottles of sherry,
2
litres
of
wine and beer. Thereafter, he,
C, Sous and one PA went to the town centre. The second appellant did
not join them because he had
to mend a neighbour’s fence across
the road. At about 12h00, they purchased a 5 litre box of wine and
returned to C’s
house. The second appellant joined them. They
all enjoyed liquor in the lounge section of the house. He noticed
that the complainant
was still in the bedroom section of the house.
The complainant was asked why she had not gone home and she gave no
response. The
complainant did not partake in the drinking spree.
During this entire period, the door was wide open. They left C’s
house
at about 15h00.


[7]
The second appellant testified that on 30 April 2013 he had consumed
liquor with the first appellant and C at C’s house.
He left C’s
house in the afternoon and did not return to C’s place on that
day. He cohabited with his partner at her
parental home but would
sleep over at C’s place whenever his mother-in-law had thrown
him out of her house. He spent the
night of 30 April 2013 with his
partner. The next morning at about 06h00, his neighbour Sous, asked
him to call the first appellant
and C. He went to C’s place and
knocked at the door. C opened the door. He was in the lounge area and
did not see the complainant.
After conveying Sous’ message to
C, he proceeded to Sous’ place. The first appellant and C
joined him there. Sous offered
them liquor, which they all shared. He
left Sous’ place at about 08h00 as he had to go and mend a
neighbour’s fence. 
At some point while attending to the
fence, he saw the first appellant and C heading in the direction of
the town centre. He finished
mending the fence at about 09h00 and
decided to go to C’s house in order to have a bath.


[8]
When he arrived there, he noticed that there was someone sleeping in
C’s bed. He assumed it was C and remarked aloud that
C had
passed out very quickly. As he was busy running the bath, he was
surprised to see that it was actually the complainant who
had been
sleeping in C’s bed. The complainant told him that she was
hungry. He told the complainant that there was no food
in the house
and pointed out that he normally had his meals at his partner’s
home. He decided to go and buy bread and polony,
which he shared with
the complainant. He then proceeded to undress and started to wash
himself. It was at that stage that the complainant
started touching
him. He reprimanded her but she continued to seduce him, after which
she told him that she wanted to have sexual
intercourse with him. He
succumbed to her temptation and had consensual intercourse with her.
He then left and did not go back
to C’s house again that day.
On his way back from town he heard rumours that he, the first
appellant and C were being accused
of having raped the complainant.
They were arrested and prosecuted, which culminated in the two
appellants being convicted and
sentenced as set out earlier in this
judgment. As stated before, they lodged an appeal with the court a
quo. The appeal was directed
against the convictions and sentences.


[9]
Before the court a quo, it was argued on behalf of the appellants
that although the complainant had the ability to differentiate

between truth and falsehood, it was evident from her responses to the
trial court that she did not understand the moral obligation
of the
necessity to speak the truth. It was also argued that the veracity of
her evidence was questionable.
The majority decision of the
court a quo found that the trial court had properly admitted the
complainant’s evidence. It found
that the criticism against the
trial court’s evaluation of evidence was unfounded. It
considered the complainant’s
evidence, being that of a single
witness, to be credible and reliable. It found that the trial court
had correctly rejected the
appellants’ version as false beyond
reasonable doubt as it was riddled with improbabilities,
inconsistencies and contradictions.


[10]
The issues for determination before this court are: whether the
complainant’s evidence was properly before the trial
court,
whether her evidence was sufficiently reliable to sustain a
conviction and whether the sentence imposed by the trial court
was
appropriate. 


[11]
It appears that some months prior to the commencement of the
proceedings in the trial court, the complainant had been referred
to
a clinical psychologist, namely Ms Andrews, for assessment. Ms
Andrews furnished the prosecution with her report, in which she

recorded that the reason for the referral was for purposes of
assessing the complainant’s mental ability and her ability
to
testify in court. Also recorded in her report was that there was a
considerable discrepancy between the complainant’s
biological
and mental age. At the commencement of the proceedings, the state
advocate apprised the court about Ms Andrews’
report and
indicated his intention to adduce her evidence so as to lay a basis
for his application for the proceedings to be held
in camera and for
the complainant to testify via close circuit television and through
the services of an intermediary.[1]
Ms Andrews’ evidence sketches a full picture that serves as a
background against which the complainant’s evidence must
be
viewed.


[12]
Ms Andrews’ evidence revealed that prior to assessing the
complainant, she had interviewed the complainant and her guardian
for
purposes of obtaining her history. She was informed that during her
childhood, the complainant was unable to learn that swearing
and
aggressive behaviour were inappropriate. Her behaviour was extreme to
the point that she was temperamental and was unable to
progress at
school. She dropped out of school at grade one level. She suffered
from epilepsy, which also contributed to her cognitive
impairment. Ms
Andrews pointed out that the complainant presented as a woman who was
normal in physical appearance and possessing
the physical maturity
consistent with her biological age of 24. However, her childish voice
alerted one to the
presence
of
an
anomaly. The complainant lacked
intelligence, emotional and social maturity. Ms Andrews stated that
when she questioned the complainant
about dropping out of school, she
personally informed her that this was due to the fact that she was
rude, she stole other learners’
belongings, was always fighting
them and was causing problems.


[13]
Ms Andrews stated that she also conducted some tests. She formally
assessed the complainant’s
cognitive
functioning and her thinking with psychometric tests. She assessed
her intellectual functioning using the
Carpets
Draw a Person
test,
a universal test that determines whether a person’s performance
is average, above average, below average or whether
he or she is
mentally disabled. Ms Andrews also used the
Good
Enough

calculation which accurately determines a person’s mental age.
That test indicated that the complainant’s mental age
was that
of a 10 year old. She also used the standard
Bend-a-guess
test to assess the complainant’s performance on the copying of
nine designs. This test revealed that although there were
errors
indicative of cognitive impairment, the complainant’s errors
were not consistent with mental retardation. She explained
that if
one is mentally retarded, he or she would get the worst errors on
that test, but the complainant’s test performance
was just
above that.


[14]
Ms Andrews also conducted the
Raven’s
Progressive Matrices

test, which is a classic standard test used by psychologists in
assessing persons who cannot read and write. The results of that
test
placed the complainant’s intellectual functioning on the
borderline, between mild mental retardation and borderline

intellectual functioning. Her score was 70. Mild mental retardation
ends at 69 and borderline intellectual functioning starts at
70. She
also conducted the Ray
Auditory Verbal Learning test
,
which is a reliable test that distinguishes between mental disability
and low IQ. As somebody who is mentally retarded cannot
learn new
information, this test assesses his or her ability to learn new
information. It tests how much new information a person
can learn
over a number of tries. The complainant was able to learn a 7-item
list over three tries. Her conclusion was that the
complainant was
able to learn new information albeit at a level well below her
chronological age.


[15]
According to Ms Andrews, the complainant was able to testify in court
and had the cognitive capacity suitable to being

admonished
by
the
court. Ms Andrews also
expressed the view that despite

the complainant’s
intellectual challenges, she did not

fall
within the definition of
mentally disabled person as
stipulated in
s
1 of the Sexual Offences Act, because

she
understood what it meant to
have sexual
intercourse and was
able to
appreciate the
nature and
reasonably foreseeable
consequences of
sexual
intercourse
. She
was, accordingly, able to express

her
consent,
or
otherwise,
to
sexual
intercourse. Ms Andrews was
cross-examined extensively by the defence counsel, but the focus of
that cross-examination was confined
to Ms Andrews’
recommendation that the complainant be allowed to testify through the
services of an intermediary. Having
considered Ms Andrews’
evidence and both counsel’s arguments, the trial court ruled in
favour of the state and the
complainant was allowed to testify in a
separate room through an intermediary.


[16]
I now turn to deal with whether the trial court complied with the
relevant provisions of the CPA. In argument before us, counsel
for
the appellant was at pains to point out that the appellants had no
issue with the complainant’s general competence to
testify in
court and indicated that the thrust of the appellants’ argument
was that the trial court had failed to comply
with the provisions of
s 162 read with s 164 of the CPA. These are provisions that deal with
examination of witnesses in court.
She contended that the complainant
ought not to have been admonished and allowed to testify, as it was
clear that although she
could understand the difference between the
truth and falsehood, she could not understand the importance or moral
obligation of
speaking the truth. She considered the questioning of
the complainant by the court prior to admonishment of the complainant
to
have been inadequate. However, during the exchanges before us,
counsel repeatedly made submissions directed at the complainant’s

general competence to testify in court as contemplated in s 192 of
that Act. I therefore deem it prudent to canvass both the general

competence of the complainant to testify and whether the enquiry
preceding her admonition had demonstrated that she was cognisant
of
the duty or moral obligation to speak the truth.


[17]
Indeed, an enquiry into a witness’ competence to testify as
contemplated in s 192 of the CPA and his or her ability
to
understand the nature and import of the oath or affirmation, as
contemplated in s 164 are two discrete enquiries.[2]
Logic dictates that where the competency of a witness is at issue,
that would be a question falling to be determined by the trial
court
at the outset. It is self-evident that if that court were to find
that witness to be incompetent to testify in court, that
would be the
end of the matter. However, where such a witness is found to be
competent to testify, the provisions relating to the
examination of
witnesses in court, as stipulated in s 162 -164 of the CPA would kick
in. I therefore propose to start with the
complainant’s general
competency to testify.


[18]
Section 192 of the CPA provides that ‘every person not
expressly excluded by this Act from giving evidence shall, subject
to
the provisions of s 206, be competent and compellable to give
evidence in criminal proceedings.’ Section 206 in turn provides

that the law pertaining to the competency, compellability or
privilege of witnesses, which was in force in respect of criminal

proceedings on the 30th
day of May 1961, shall apply in any case not expressly provided for
by this Act or any other law. Expressed differently, every
person not
expressly excluded by the Criminal Procedure Act or by the English
law of evidence as at 30 May 1961 is presumed competent
and
compellable to give evidence in criminal proceedings.[3]


[19]
A case that elucidates the provisions of s 192 and simultaneously
highlights that a person’s mental affliction does not,
without
more, impact on his or her competence to testify in court is
S
v Katoo
.[4]
In that matter, this court had to determine a reserved question of
law pertaining to the trial court’s finding of incompetence
in
relation to a witness. It also had to interpret the provisions of s
15 of the Sexual Offences Act 23 of 1957,[5]
which made it an offence to have sexual intercourse with a male or
female ‘idiot’ or ‘imbecile’ (that is
the
outdated terminology that was used in that Act) and s 194 of the
CPA.


[20]
In the process of interpreting the provisions of s 194, this court
expressly stated that that section has to be read with the
provisions
of s 192 and s193, respectively. What had transpired in the trial
court was that the prosecution had sought to adduce
the evidence of
the complainant, who was said to be ‘severely mentally retarded
to the point where she may be described as
an imbecile.’ The
trial court, relying on the provisions of s 194 of the CPA, had ruled
that the complainant was not competent
to testify as the evidence of
a clinical psychologist had stated that the complainant suffered from
severe mental retardation and
that she could consequently be
described as an ‘imbecile’. The psychologist had
indicated that he was unable to opine
whether the complainant could
distinguish truth from falsehood. On appeal, this court having noted
that the psychologist’s
evidence did not indicate that the
complainant suffered from any mental illness, stated that imbecility
was not a mental illness
and did not, per se, disqualify a
potential witness from testifying in court. As stated before, it
concluded that s 194 of the CPA must be read with
s 192 and s
193, respectively. Regarding the general competence to testify as
contemplated in s 192 of the CPA, it remarked
as follows:



In
the past courts in this country have permitted persons suffering from
mental disorders as well as imbeciles to testify subject
to their
being competent to do so.
See
S v Thurston (supra); S v J 1989 (1) SA 525 (A); R v K 1957 (4) SA 49
(O) and S v Malcolm 1999 (1) SACR 49 (SE).
That
approach is in harmony with the presumption contained in s 192 to the
effect that every person is a competent witness
.
(Own emphasis).


[21]
It is therefore clear from that
dictum
and the cases cited therein that the law applicable in this country
before 30 May 1961 did not equate a person’s infirmity
of mind
with incompetence to testify in court. Reverting to the facts of this
matter, I have already alluded to the unchallenged
evidence of the
clinical psychologist who had assessed the complainant. She stated
that the complainant had a mild mental retardation
and was competent
and able to distinguish between truth and falsehood. It is worth
mentioning that as such, the complainant in
this matter was in a
better position than the witness referred to in
S
v Katoo,
who was severely
retarded
.


[22]
In this matter, Ms Andrews expressed the view that the complainant
was competent to testify and advanced her reasons for that

conclusion. The appellants’ counsel did not challenge that
evidence at all and merely expressed misgivings about the
recommendation
that the complainant testify through an intermediary.
The appellants were in court and knew the complainant very well[6]
and would have been able to instruct their counsel to dispute some of
the findings made by Ms Andrews pertaining to the complainant’s

history or general competence. This was not done.


[23]
It is evident from the record that Ms Andrews’ finding that the
complainant was not mentally disabled within the meaning
of s 1 of
the Sexual Offences Act, is what prompted the State Advocate to amend
the indictment by deleting reference to s 57(2)
of that Act[7]
in terms of which a person suffering from a mental disability is
considered incapable of giving consent to sexual intercourse.
In
response to the trial court’s question, the defence counsel
indicated that he had no objection to that amendment. The

self-evident risk for the appellants challenging Ms Andrews’
findings obviously lay in the fact that a conclusion that the

complainant suffered from a mental disability as defined in s 1 of
the Sexual Offences Act would in turn result in the applicability
of
the provisions of s 57(2) of the Sexual Offences Act. The uncontested
DNA evidence linking the two appellants to the offence
could
therefore have been sufficient to sustain the appellants’
conviction. It is apposite to echo the sentiments expressed
by this
court in Rex
v Hepworth
1928
AD 265 at 277 where it said:



a
criminal trial is not a game where one side is entitled to claim the
benefit of any omission or mistake made by the other side,
and a
judge’s position in a criminal trial is not merely that of an
umpire to see that the rules of the game are observed.
. .’.


[24]
The trial court, in its judgment, alluded to the expertise of Ms
Andrews and concluded that there was no reason why it could
not
accept such evidence. Having perused the record, I cannot see any
reason why the trial court was not entitled to accept the

unchallenged views of an expert, expressed on the basis of such
expert’s scientific knowledge and experience. This justified
a
conclusion that the complainant was competent to testify as envisaged
in s192 of the CPA. As I will demonstrate, nothing, as
the trial
progressed, indicated the contrary.


[25]
The next enquiry is whether the admonition of the complainant meets
the requirements of the law as elucidated by various authorities.
As
correctly stated in
S
v Katoo
,[8]
the fact that someone is a competent witness does not mean that the
person can be sworn in as a witness.  That raises a discrete

issue of whether the witness understands the nature and import of the
oath. It is convenient to preface that discussion by quoting
the
exchange that preceded the complainant’s admonition verbatim.
It is as follows:



COURT:
Please ask her name?



WITNESS:
S. P.



COURT:
How old are you?



WITNESS:
She does not know how old she is M'Lady.



COURT:
S. do you know the difference between what is true and what is not
true, that is the difference between truth and lies?



WITNESS:
Yes M'Lady.



COURT:
If I say to you are a boy am I telling the truth?



WITNESS:
No.



COURT:
Do you know what happens to someone who does not tell the truth?



WITNESS:
No M'Lady.



COURT:
Is it good to tell lies?



WITNESS:
Yes M'Lady.



COURT:
Do you know what happens, okay you have already answered that, now we
have asked you to come here today because we want you
to tell us the
truth. Are you going to tell us the truth?



WITNESS:
Yes M'Lady.



COURT:
Any questions, I have asked those questions just to establish whether
she understands the difference between the truth and
lies, I don't
know if either of you want to pose any further questions before I
swear her in?



PROSECUTOR:
M'Lady can we ask one or two questions just to.....?



COURT:
Okay.



PROSECUTOR:
S you indicated earlier that if a person says you are a boy that
person would be telling a lie.



WITNESS:
Yes.



PROSECUTOR:
And if a person says you are a girl, is he telling the truth or is he
telling a lie?



WITNESS:
He is telling the truth.



PROSECUTOR:
That is all M'Lady.’


[26]
Following that exchange, the defence counsel submitted that given the
responses given by the complainant, it could not be concluded
that
the complainant was ‘competent to take the oath’.
Thereafter, the state advocate proposed that the complainant
be
admonished. The defence counsel expressly agreed. The following
exchange then followed:



COURT:
I am now warning you that we expect that you are going to tell us
only what is true and you are not going to lie to us, do
you
understand that?



WITNESS:
Yes, M’Lady.



COURT:
You are going to be asked questions and you are going to be asked
what happened on a day you are going to be told about,
and when you
give answers and when you explain things to court you must please
raise your voice, do you understand?



WITNESS:
Yes, M’Lady.’


[27]
I mention
en
passant
that
the fact that the trial court did not make a specific finding that
the complainant did not understand the nature and import
of the oath

or
affirmation before deciding to admonish her was not raised as an
issue in this appeal. In any event, it is settled law that an
express
finding is not a pre-requisite to admonishing a witness.[9]


[28]
Section 162(1) of the CPA provides that ‘subject to the
provisions of sections 163 and 164, no person shall be examined
as a
witness in criminal proceedings unless he is under oath’. Thus,
where there is no objection raised to taking the oath,
the oath would
be duly administered. Where the witness raises an objection against
the taking of the oath, such a witness will,
in terms of the
provisions of s 163, be required to affirm that he or she will speak
the truth.[10]


[29]
Section 164(1) of the CPA caters for circumstances where a potential
witness is unable to take an oath or affirm on account
of a lack of
understanding of the oath or the affirmation. It matters not whether
such a witness is an adult or a child. It provides
as follows:



Any
person, who is found not to understand the nature and import of the
oath or the affirmation, may be admitted to give evidence
in criminal
proceedings without taking the oath or making the affirmation:
Provided that such person shall, in lieu of the oath
or affirmation,
be admonished by the presiding judge or judicial officer to speak the
truth.’


[30]
I agree that the purpose of the enquiry prior to admonition is not to
merely determine whether a witness can understand the
abstract
concepts of truth and falsehood or can give a coherent and accurate
account of the events but to determine whether he
or she can
distinguish between truth and falsity. It must be evident that the
witness recognises the danger and wickedness of lying.[11]
In
DPP
v Minister of Justice
,[12]
the court stated that it is implicit in the proviso that the person
must understand what it means to speak the truth. It further
stated
that if a child cannot understand what it means to tell the truth,
that child cannot be admonished to speak the truth and
is therefore
an incompetent witness. The court stated that the reason for the
requirement that evidence be given under oath or
affirmation or
admonition to speak the truth is to ensure that the evidence given is
reliable. It is indeed a pre-condition for
admonishing such a witness
that he or she must be able to comprehend what it means to tell the
truth. Accordingly, the evidence
of a person who does not understand
what it means to tell the truth is by its nature not reliable and
therefore inadmissible. Admitting
such evidence would undermine the
accused’s right of a fair trial.


[31]
In this matter, the complainant had a mental age of a 10-year old
child. In
Gealall
Raghubar v The State,
[13]
Tshiqi
JA stated as follows:



If
a child does not have the ability to distinguish between truth and
untruth, such a child is not a competent witness. It is the
duty of
the presiding officer himself or herself that the child can
distinguish between truth and untruth. The court can also hear

evidence as to the competence of the child to testify. Such evidence
assists the court in deciding (a) whether the evidence of
the child
is to be admitted, and (b) the weight (value) to be attached to that
evidence. The maturity and understanding of the
particular child must
be considered by the presiding judicial officer, who must determine
whether the child has sufficient intelligence
to testify and a proper
appreciation of the duty to speak the truth. The court may not merely
accept assurances of competency from
counsel.’[14]



[32]
Unlike the circumstances described in
Raghubar,
in this matter, the court received evidence of an expert, namely Ms
Andrews. While it is indeed so that the prosecutor’s
objective
in calling the Ms Andrews was to motivate for the complainant to
testify in a separate room through an intermediary,
it is undeniable
that the psychologist went much further than that. Not only did she
give an opinion about the general competence
of the complainant to
testify, she went on to opine that the complainant was able to
understand what it meant to tell the truth,
what it meant to lie, and
could be admonished like any 10 year old child. Granted, it was the
duty of the trial court to establish
whether the complainant could,
in fact, distinguish between truth and falsehood and comprehend the
obligation to tell the truth.
The Constitutional Court in
Director
of Public Prosecutions v Minister of Justice and Constitutional
Development
[15]
put the bar no higher than establishing whether the child in question
‘can comprehend what it means to tell the truth’.


[33]
The criticism that the trial court’s enquiry preceding the
admonition was cursory or inadequate is without merit as it
fails to
take into account the proper context in which the questioning was
embarked upon. This critical context is that the court’s

questioning was preceded by detailed testimony of an expert who had
not only interviewed the complainant but also evaluated her
mental
capabilities by performing recognised IQ tests. What has to be borne
in mind in this case is that Ms Andrews’s conclusion
that the
complainant was able to distinguish between the truth and falsehood
and would be able to understand what it meant to relate
what happened
and nothing else, was based on scientific tests and was
uncontroverted.[16] The
court’s later questioning of the complainant must be seen in
that light. It is of significance that the complainant’s

independent explanation for dropping out of school, as related to the
court by Ms Andrews, was that she stole other learners’
things,
was rude and caused problems. That is part of the evidence to which
the trial court was privy. That self-criticism, in
my view,
demonstrates that the complainant understood the importance of being
honest even if it meant portraying herself in a dim
light. To my
mind, that is a clear demonstration of someone who understands the
moral obligation of telling the truth. That must
have weighed heavily
with the trial court.


[34]
Significantly, prior to admonishing the complainant the trial court
gave both the State and defence an opportunity of directing
further
questions to the complainant. The defence counsel did not ask any
questions. Clearly, Ms Andrews’ uncontested evidence
weighed
heavily with the trial court and it was satisfied that the
complainant comprehended the difference between truth and falsehood

and comprehended the duty to speak the truth. She was clearly too
immature to appreciate the significance of the oath. The later

extracts of the complainant’s answers to questions by the trial
court before she was admonished, referred to above must be
seen in
proper perspective. First, her answers to the initial questions
showed an ability to distinguish between truth and falsehood.
Her
subsequent answers appeared to indicate the contrary. It must be
appreciated that this was apparently her first time in a court
and
this must have made her nervous. Her susceptibility to nervousness
and its effects are aspects I will revert to later in this
judgment.
Seen against that background, the trial court’s decision to
admonish the complainant to speak the
truth was correctly made.
Having considered the trial court’s questioning in the context
of the psychologist’s evidence,
I am satisfied that the court a
quo rightly admonished the complainant. The argument that the
complainant's evidence was not properly
taken therefore has no merit.


[35]
That brings me to the issue whether the evidence presented on behalf
of the state was reliable enough to sustain a conviction
on the
charge of rape. It is trite that the state bears the onus of proving
the guilt of an accused person beyond reasonable doubt.
This being a
rape charge, the remarks made by this court in
S
v Vilakazi
[17]
are apposite. Nugent JA said:



The
prosecution of rape presents peculiar difficulties that always call
for the greatest care to be taken, and even more so where
the
complainant is young. From prosecutors it calls for thoughtful
preparation, patient and sensitive presentation of all the available

evidence, and meticulous attention to detail. From judicial officers
who try such cases it calls for accurate understanding and
careful
analysis of all the evidence. For it is in the nature of such cases
that the available evidence is often scant and many
prosecutions fail
for that reason alone.’



[36]
In
S
v Mlambo,
[18]
Malan
JA stated that, while it was not incumbent on the State to close any
avenue of escape which may be said to be open to an accused,
it would
be sufficient, in order to procure a conviction, ‘to
produce
evidence by means of such
a
high
degree of probabilities raised that the ordinary reasonable man,
after mature consideration, comes to the conclusion that there
exists
no reasonable doubt that an accused had committed the crime charged.
He must, in other words, be morally certain of the
guilt of the

accused.


[37]
It is settled law that evidence of a child must be approached with
caution.[19] The same
principle applies to the evidence of a single witness. T
he
court has to satisfy itself that the evidence given by the witness is
clear and substantially satisfactory in material respects.
The court
is to look for features, in the evidence, which bear the hallmarks of
trustworthiness to substantially reduce the risk
of wrong reliance
upon the evidence of a single witness. The judgment of the trial
court demonstrates that it was alive to the
application of the
cautionary rule on account of the complainant being a single witness
to the rape and also on account of her
youthful mental age.



The
following dictum in
S
v Van der Meyden
[20]
is apposite:



The
passage seems to suggest that the
evidence is to be separated into compartments, and the “defence
case” examined in
isolation, to determine whether it is so
internally contradictory or improbable as to be beyond the realm of
reasonable possibility,
failing which the accused is entitled to be
acquitted. If that is what is meant, it is not correct. A court does
not base its conclusion,
whether it be to convict or to acquit, on
only part of the evidence. The conclusion which it derives at must
account for all the
evidence.’



That
dictum was referred to with approval by this court in
S
v van Aswegen
.[21]


[38]
In a nutshell, the state's version was a simple one, narrated in
simple terms by the intellectually challenged complainant.
During her
testimony, she struggled to verbalise a clear explanation of how she
was pushed into the house and opted to give a demonstration
which,
unfortunately was not captured on the record. Nothing turns on this.
It must be understood that the account of events was
related by
someone with a mental age of 10. Under cross-examination, she was
confronted with two statements that she had allegedly
given to the
police prior to the trial. The

first
statement
taken
by
the
South
African
Police
officer
was
taken
in circumstances where the
officer did not understand Afrikaans and the complainant did not
understand English. The following passage
of the record demonstrates
the difficulties that were experienced when that statement was taken.



As
the court pleases M’Lady. Constable I do not understand you
really, one minute you say that you understand Afrikaans the
next
minute you say I don’t understand Afrikaans so well. What is
it?



---
I am not fully conversant in Afrikaans, there are some portions that
I understand and there are some that I do not understand.



Okay,
now tell me did you do Afrikaans at school?



---
Yes I did.



From
which Grade until which grade?



---
What I know is I completed my matric still doing Afrikaans.



So
I believe you understand the street Afrikaans, Afrikaans spoken on
the street, that you must understand, correct?



---
I can just understand Afrikaans here and there I cannot fully
understand it.



Can
you write?



---
No my spelling is very poor.



If
you are given an Afrikaans newspaper will you be able to read it?



---
I would be able to read it but I would read it very slowly.



. .
.



In
other words everything that you wrote in this statement it was
translated to you by Mieta James?



---
Not everything not every portion, there are some portions that I
understood myself.



So
this paragraph one is not entirely true when it says that she spoke
in Afrikaans and Mieta James acted as an interpreter? Do
you agree?



---
Mieta James took part.



No
sir don’t be evasive, we don’t have time so don’t
be evasive. Do you agree that this paragraph is incorrect
if it reads
that she spoke in Afrikaans and Mieta James interpreted in English,
it isn’t correct? --- I am not being evasive,
Mieta James did
take part in translating.



Okay,
why this paragraph then not say that I could understand some of the
Afrikaans but Mieta James assisted me with what I did
not understand?



---
If it was my own statement then I would have written that down but it
is the statement of the complainant and Mieta James played
a role in
it.



From
this statement, from page 1 to page, the last page of the statement
are you able to pin point paragraphs or sentenced that
Mieta James
translated to you in English?



---
It would be very difficult M’Lady.



MR
McCONNACHIE [DEFENCE COUNSEL]
M’Lady
I am not sure if I heard correctly M’Lady but I thought I heard
a question that my learned friend was referring
to any portion that
she translated in English, I don’t believe that it was
translated to the witness in English, that the
question related to
portions translated by Mieta into English.



---
Mieta James only stated, assisted in Afrikaans, but she made it very
simple for me.



MR
MGENGE [STATE COUNSEL]
But
then why did you write translated in English by Mieta James why did
you write that if she didn’t speak English?



---
I am sure that she used some English words in portions where I did
not understand but not in full sentences.



But
why did you write here that she translated it in English? Sir you are
the one who wrote that paragraph on this statement, paragraph
1 in
the statement, it is you who is saying this, just answer me?



---
I could not even recall this day even very well M’Lady.



What
is it that you can’t recall now?



---
I cannot remember very well which language she spoke the most when
she explained to me, but she explained portions that I did
not
understand.



So
when you said she spoke Afrikaans, simple Afrikaans, you were not
entirely honest with me when she said she spoke simple Afrikaans?



---
I was honest.



But
now you say you don’t even recall which language did she use?



--
Which language she used the most.



What
do you mean with that, do you mean English or Afrikaans?



---
She only assisted me where I could not understand we did not engage
in a full conversation she only assisted me where I could
not
understand, some portions I understood myself.



You
see Mieta testified here to the effect that she does not even
understand English. She has never been in school? What do you
say to
that?



---
Yes she affixed her thumbprint here on the statement because I did
not read the statement to them back in Afrikaans, I read
it in
English.



And
was it interpreted to them?



COURT
Sorry?



---
No it was not translated to them.’


[39]
Clearly, there was a language barrier between the person who authored
this statement and the complainant. Whereas the trial
court admitted
this statement and held the view that little reliance should be
attached to it, I am of the view that it should
not have been
admitted into evidence, given its poor quality, especially relating
to the procedure followed in taking it. It’s
admission into
evidence only served to confuse the complainant. It is worth
lamenting that the afore-mentioned statement acutely
illustrates and
pointedly brings to the fore a systemic problem regarding the taking
of statements from complainants. The deplorable
manner in which the
complainant’s statement was taken by the police officer in
question is a far cry from the victim-centred
approach that is to be
followed when dealing with rape victims.


[40]
The circumstances under which the second statement was taken are
somewhat different. The statement was taken by a female Afrikaans

speaking police officer and there was no language barrier as the
complainant’s mother tongue is Afrikaans. The police officer
in
question was called as a defence witness. She mentioned that due to
the difficulties she encountered when trying to administer
the oath
to the complainant, she abandoned the idea of having the statement
attested and deleted the part that would have been
completed by a
commissioner of oaths. The statement-taker conceded that she had read
the first statement prior to interviewing
the complainant but stated
that it would not have influenced her to repeat any of the
information contained therein. The major
discrepancy between this
statement and the complainant’s evidence pertains to the
complainant’s averment, in that written
statement, that C also
participated in her rape. It is undeniable that this contradiction is
material. The court a quo attributed
the discrepancy to the
pronunciation of one of the appellants’ nicknames, which it
considered to be similar to the name of
C and speculated that the
similarity in the names could have led to a mistake on the part of
the statement-maker. I would rather
not speculate. The statement is
what it is. The fact that a witness has contradicted himself or
herself should not, in and of itself,
warrant that the proverbial
baby be thrown out with the bathwater.


[41]
The correct approach to be followed by a court evaluating evidence
that bears contradictions was laid down as follows in
S
v Sauls & others:
[22]



The
trial Judge will weigh his evidence, consider its merits and demerits
and, having done so, will decide whether it is trustworthy
and
whether, despite the fact that there are shortcomings or defects or
contradictions in the testimony, he is satisfied that the
truth has
been told.’



[42]
In
S
v Mafaladiso,
[23]
this court emphasized that the adjudicator of fact must keep in mind
that a previous statement is not taken down by means of
cross-examination,
that there may be language and cultural
differences between the witness and the person taking down the
statement which can stand
in the way of what precisely was meant, and
that the person giving the statement is seldom, if ever, asked by the
police officer
to explain their statement in detail. It behoves the
courts to keep in mind that not every error by a witness and not
every contradiction
or deviation affects the credibility of a
witness. Contradictory versions must be considered and evaluated on a
holistic basis.
Furthermore, the circumstances under which the
versions were made, the proven reasons for the contradictions, the
actual effect
of the contradictions with regard to the reliability
and credibility of the witness, the question whether the witness was
given
a sufficient opportunity to explain the contradictions, the
quality of the explanations and the connection between the
contradictions
and the rest of the witness’ evidence are among
other factors to be taken into consideration and weighed up.


[43]
In this matter, the complainant was confronted with the contradiction
between what is contained in the written statement and
her oral
evidence pertaining to C’s alleged role in the perpetration of
the rape. She steadfastly maintained what she had
stated under
examination in chief, that C had not played a role in the incident
but was present at his house when the incident
happened. C’s
presence at his house on the night of the incident and the next day
was never disputed. If the complainant
was bent on falsely
implicating the appellants, she would have remained adamant that C
was also involved. This would have been
the easiest way out for her,
especially since C had also been charged together with the two
appellants. She attributed the discrepancy
to her confusion at the
time of taking the statement. The police officer who took the second
statement corroborated her evidence
that she was nervous at the time
when the statement was taken. Her guardian had also testified that
the complainant had been very
nervous on the day she was found and
during the days that followed. She stated that the complainant
normally scratched herself
when she was nervous, but during that
period, the scratching had worsened. The evidence of the distressed
state of the complainant
is not without significance in the
consideration of her version.[24] 


[44]
During cross-examination, the complainant was also asked why she had
mentioned the fact that her feet had been tied to a bed
for the first
time under cross-examination, whereas she had mentioned this aspect
in her written statement. She simply repeated
that she had indeed
been tied to the bed in the morning but had later managed to free
herself. The bed is depicted in the photo
album which was admitted as
an exhibit in the proceedings. It is clear from the record that all
the witnesses referred to it as
a bed and distinguished it from a
mattress. It is also clear from the photo album that the bed in
question has some form of a small
base and the mattress thereof has
not been placed directly on the floor.  The defence counsel was
meticulous in his cross-examination
of the complainant and I accept
that if it were impossible for anything to be tied to the bed, he
would have put this to the complainant
in his cross-examination. He
did not do so. The mattress of the bed in any event depicts exposed
coils. It is not impossible for
a person to be tied to the exposed
coils of a mattress. I therefore cannot agree that the court a quo
misdirected itself when it’s
stated that the structure of the
bed was such that the complainant could have been fastened to it.


[45]
The weaknesses in the complainant’s evidence must be considered
against the totality of evidence. It is of great significance
that
many aspects of her evidence are either undisputed, corroborated by
objective facts and the appellants’ own version.
Irrespective
of how the complainant got to C’s place, it is undisputed that
she arrived there at approximately 19h00 on 30
April 2013. What is of
significance is that although the defence counsel had repeatedly put
to the complainant that the first appellant’s
version would be
that the complainant left C’s house immediately after she had
had consensual sexual intercourse with him,
the first appellant
disavowed this under cross-examination and his counsel later put it
on record that he is the one who had put
the wrong version to the
complainant. This meant that the complainant was correct when she
testified that she spent the night at
C’s house.


[46]
The complainant’s evidence that she was found by G at C’s
house the next day is confirmed by G, who is C’s
sister, even
though G claimed to have found her playing marbles alone outside C’s
door. This confirmed the complainant’s
version that she
remained at C’s house for the entire night until the next
afternoon when she was found by C. Furthermore,
one of the state
witnesses, namely B, testified that she lived close to C’s
house. She described the location of her house
in relation to C’s
house and stated that she  would have been in a position to see
the complainant if she (the complainant)
had been outside C’s
house at any stage before she was found on 1 May 2013. That evidence
was not disputed. This is corroborated
by the guardian’s
evidence, who also lives in the proximity of C’s house and had
searched for the complainant in the
area the next day. That the
complainant was reported as missing the next morning was confirmed by
G. It transpired that on that
day, G had also gone home during
lunchtime but had, at that stage, not seen the complainant at C’s
house. The first appellant
testified that when they returned to C’s
house at around midday on 1 May 2013, the complainant was still
present in the room.
He left again at about 15h00 and the complainant
was still there. All this evidence conclusively proves the
correctness of the
complainant’s version that she remained at
C’s house from the evening of 30 April 2013 until she was found
by G at
about 16h00 the next day. 


[47]
It is evident from the medical report that was received as an exhibit
in the proceedings that the complainant was taken for
a medical
examination the same day on which she was found at C’s house.
Although it states that there were no visible injuries,
it confirmed
the presence of a discharge on the complainant’s genitals. It
also confirmed that specimen were obtained from
her genitalia and her
clothes and were dispatched to the forensic laboratory for analysis.
DNA evidence identified the appellants
as the donors of the DNA found
in the complainant’s specimen. All this is uncontested
objective evidence.


[48]
The appellants in any event admitted having had sexual intercourse
with the complainant and this was obviously borne out by
the DNA
evidence. The appellants’ admission that they had had sexual
intercourse with the appellant, albeit independently
of each other
corroborates the complainant’s version that the two appellants
had sexual intercourse with her at C’s
place. The complainant
testified that none of the appellants used a condom during the sexual
intercourse and mentioned that both
of them ejaculated. This is
confirmed by the presence of the two appellants’ DNA on the
swabs taken from the complainant’s
genitalia. The complainant
testified that only her pants were pulled down during the rape and
stated that at some point, the second
appellant sat on top of her
chest. The second appellant’s DNA was found on the
complainant’s tracksuit top. This is
a further confirmation of
the complainant’s version. To the complainant’s credit,
when it was put to her under cross-examination
that she had
previously consented to sexual intercourse with the first appellant,
she readily conceded it but remained steadfast
that she had not
consented to the sexual intercourse that formed the basis of both
appellants’ prosecution.
When
it was put to her that the appellants would say that they did engage
in sexual intercourse with her at the said house but with
her
consent, she emphatically refuted this. She also refuted the
appellants’ versions that the sexual intercourse did not
occur
in the presence of one another. Although the complainant was not an
intelligent witness, she was a demonstrably honest, credible
and
reliable witness.


[49]
Turning to the appellants’ evidence, the court a quo correctly
described it as false beyond reasonable doubt. It was
indeed riddled
with improbabilities and inconsistencies. There were many
self-contradictions and the two appellants contradicted
each other in
material respects. Furthermore, material aspects of their version
were not put to the complainant during her cross-examination
and came
to light for the first time during their evidence in chief.


[50]
The first appellant was adamant that the door of C’s house was
always open and therefore nothing precluded the complainant
from
leaving. The exchange on that aspect was as follows:



Okay,
when you left this particular, when you left accused number 3's
house, did you close the door of the house or what?



-­-
No my Lady.



Why?



---
Because it is always kept open.



24/7?



---
When accused number 3 passes out he does not close the door, he just
goes to sleep maybe on his bed or even on the sofa.



Even
during the evening he will do that, if he is drunk, sleep with an
open door? --- He just pushes he door open. If it is just
slightly
open he just goes and throws himself on the bed and he sleeps.



Okay,
then you said after about 30 minutes you came back and you found the
door open? --- That is correct.’


[51]
This evidence is contradicted by his own evidence that during the
night, he had heard the complainant opening the door and
then closing
it again. This can only mean that the door was closed during night.
The second appellant testified that he had to
knock on the door of
C’s house when he went there at 06h00 to deliver Sous’
message. The first appellant’s later
addition, to the effect
that entry into C’s house is gained by merely pushing the door
open, is also refuted by the second
appellant’s evidence that
after he had knocked at the door, C went to open for him. The
ineluctable inference is that that
door was closed for the entire
night and could not be opened by merely pushing it.


[52]
The layout of C’s house was captured in the photo album. It is
evident that C’s house is a one-room structure which
has been
partitioned into two sections, namely the lounge area and the bedroom
section. This was also confirmed by the police officer
who took the
photographs. Insofar as it is suggested that nothing prevented the
complainant from leaving that house as the door
was open while C and
his companions were consuming liquor there, two things are important.
Firstly, there is only one door through
which access can be gained
into the house. Access through that door leads to the lounge area of
the house. On the appellants’
own version, the complainant was
sitting in the bedroom section of the house. According to the
evidence of the first appellant,
one could see someone who was in the
bedroom section only if they pulled the partitioning curtain to the
side in order to have
a peek inside. Clearly, any visitors would not
have been able to see the complainant unless they peeked into the
bedroom section
of the house. Secondly, it must be borne in mind that
the complainant had been threatened with assault the previous night.
Given
her intellectual immaturity, she could have believed that the
threat would be carried out if she attempted to leave during the
drinking spree.


[53]
I find it highly improbable that the complainant, who liked to play
with children, would have willingly decided to remain alone
at C’s
place for the better part of the next day despite being hungry and
having been repeatedly ordered to leave. Equally
improbable is G’s
version that she found the complainant playing marbles outside C’s
house. If the complainant had
indeed chosen to play marbles alone
outside C’s house, members of the community would have seen her
much earlier and taken
her home, as she had already been reported as
missing. Rather, the probabilities favour the complainant’s
version that G
saw her in C’s house and that the reason why she
had not been able to leave that house prior to that was because the
appellants
had made it impossible for her to do so.  


[54]
There are many other improbabilities in the appellants’
version. For example, when the first appellant was asked why
he
decided to spend the night at C’s place instead of going back
to where he lived with his partner, which is in the same

neighbourhood, the first appellant alleged that it was better to do
so rather than fight with his partner. As correctly pointed
out by
the court a quo, that
explanation simply made no sense. What was also odd was that, having
previously insisted that the complainant should leave C’s
house
because he was worried that people would start spreading stories, the
continued unexplained presence of the complainant at
C’s house
no longer bothered him.


[55]
The first appellant stated that when he woke up in the morning, he
saw the complainant sleeping with C in C’s bed. I
find it
highly improbable that the complainant, would, after having
consensual sexual intercourse with the first appellant, go
and share
a bed with C notwithstanding the presence of the first appellant in
the same room. It is equally unthinkable that the
very next morning,
the childish complainant would choose to seduce the second appellant
in C’s house, knowing that either
the first appellant or C
could return at any moment. Any possibility of that sexual
intercourse having been motivated by the complainant’s
hunger
is ruled out by the fact that, on the second appellant’s own
version, the complainant had already finished eating
the food he had
bought her by the time the alleged seduction took place.  


[56]
The second appellant’s evidence that he lived with his partner
but took a bath at C’s house is highly improbable.
He tried to
lend it some credibility by stating that he kept his clothes at C’s
house so that he could have a bath there
whenever his partner or
mother-in-law had thrown him out. On his own evidence, he had spent
the night at his partner’s place
and had had his meals there.
He had not been thrown out on that occasion, so there would have been
no need for him to go and wash
himself at C’s place. On his own
version, C and the second appellant walked past him while he was busy
mending a fence and
headed in the direction of the town centre. It
was therefore highly unlikely that so soon thereafter, he would, when
entering C’s
house, be under the impression that it was C who
was sleeping in his bed. It is undisputed that the complainant’s
family
had asked members of the community to assist in looking for
the complainant. Furthermore, it is common cause that the appellants

lived in the same neighbourhood. It is also undisputed that the
streets were vibrant since that day happened to be a public holiday.

Given the various places the appellants allegedly visited on that
day, it is rather strange that they had not heard that people
were
looking for the complainant.


[57]
Another disconcerting aspect about the appellants’ evidence is
that they materially departed from the version put to
the complainant
by their counsel. It was put by the appellants' counsel that after
the first appellant and the complainant had
had sex, they both fell
asleep on the mattress. However, the first appellant testified that
after the conclusion of the sexual
intercourse, he asked the
complainant to leave. Whereas it had been put to the complainant that
the second appellant had consensual
sexual intercourse with the
complainant on a mattress and not on the bed, the second appellant
testified that the sexual intercourse
took place while they were
standing next to the wardrobe. Although it was put to the complainant
that the appellants and C had,
on the afternoon of 1 May 2013,
enjoyed liquor together at C’s place, the second appellant
testified that after having sexual
intercourse with the complainant
in the morning, he left C’s place and never went back there
again that day. This, notwithstanding
that the first appellant had
stated that he, the second appellant and C were drinking together at
C’s house from 12h00 until
approximately 15h00. It is evident
from the record that the appellants gave instructions to their
counsel while the witnesses were
testifying. If their counsel had put
the wrong version to the witnesses, they would have drawn this to his
attention. Save for
the error conceded to by their counsel, it can be
accepted that the statements that he put to these witnesses were in
accordance
with their instructions.


[58]
The appellants tried hard to give an account that showed that when
sexual intercourse with the first appellant occurred, the
second
appellant was not present and vice versa. They were individually
confronted with the various improbabilities and contradictions
in
their evidence. Furthermore, both of them significantly departed from
a version that was put to the complainant under cross-examination.

They did not provide a plausible explanation. The first appellant
resorted to asserting that he had knocked his head sometime in
the
past and sometimes became confused. It became clear that they had
tried to adjust their evidence with the progression of the
trial.


[59]
All the
improbabilities, inconsistencies, and contradictions in the
appellants’ evidence point to extreme mendacity that warrants

the rejection of the appellants’ evidence as false beyond
reasonable doubt to the extent that it differs from that of the

complainant. The credibility findings made by the trial court are
borne out by the record and this court, being a court of appeal,
is
bound by them. I am satisfied that the appeal against the appellants’
convictions and sentences has to be dismissed.



[60]
With regards to sentence, it is trite that sentencing is within the
discretion of the trial court,

the
Court of

Appeal
interfering only

if
there
is
a
clear
misdirection on

the
part
of
the
trial
court
or the sentence is shockingly severe. In
S
v Pillay
,[25]
the nature and the extent of misdirection

was
explained
as
follows:



.
. . mere misdirection is not by itself sufficient to entitle the
Appeal Court to interfere with the sentence; it must be of such
a
nature, degree or seriousness that it shows, directly or
inferentially, that the court did not exercise its discretion at all

or exercise it improperly or unreasonably. Such a misdirection is
usually and conveniently termed one that vitiates the court's

decision on sentence.’


[61]
I am satisfied that the trial court correctly applied the principles
relating to sentencing. It took the triad of sentencing
into account
and analysed the relevant circumstances and considered both
aggravating and mitigating factors. There appears to be
no expression
of remorse, and the serious psychological harm caused to the

complainant. It also falls to
be considered that up to two years after the rapes, the complainant
had recurring nightmares about
the rapes. It was also reported that
her epileptic seizure activity also worsened for a period of at least
six months after the
rapes. She also started having more episodes of

running away.
It is clear that the rapes had
a devastating impact on the complainant.


[62]
C’s sister, G, conceded that it was well-known in the community
of Pearston that the complainant had mental challenges,
which
corroborated the evidence of the state witnesses. The first appellant
had known the complainant for three years, while the
second appellant
confirmed that he
had
known the complainant for the

previous ten years. Both
appellants must have known about the complainant’s mental
challenges, as described by Mrs Andrews
in her report and evidence.
They obviously took advantage of her vulnerability. This is a serious
aggravating factor. The courts
must demonstrate that the vulnerable
members of society enjoy equal protection of the law. The small
community in the Pearston
district was also outraged by the actions
of first and second appellants, which explains the mob that gathered
at C’s house
after the complainant was found. This community is
interested to see justice being meted out to the appellants.


[63]
I am satisfied that the trial court did not err in finding there to
be substantial or compelling circumstances and that it
sufficiently
took into account the totality of the facts in ordering a 20-year
sentence of direct imprisonment. The court a quo
correctly dismissed
the appeal.


[64]
For all the above reasons, the appeals against the appellants’
convictions and sentences are dismissed.


 


 


___________________


M
B Molemela


Judge
of Appeal








Counsel
for Appellants: Lilla Crouse


Instructed
by: Legal Aid South Africa, Grahamstown


Bloemfontein
Justice Centre, Bloemfontein


Counsel
for Respondent: S Mgenge


Instructed
by: Director of Public Prosecutions, Grahamstown


Director
of Public Prosecutions, Bloemfontein


 



[1]
Section
170A (1) of the Criminal Procedure Act provides:



Whenever
criminal proceedings are pending before any court and it appears to
such court that it would expose any witness under
the biological or
mental 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.’




[2]
S
v Katoo
[2006]
4 All SA 348; [2004] ZASCA 109 at para 13
.




[3]
LAWSA
(1978) Vol 5
at
451 para 626
.




[4]
Katoo
fn 2 para 13.




[5]
Section
15 provided as follows:



Any
person who-



(a)
has or attempts to have
unlawful carnal intercourse with any male or female idiot or
imbecile in circumstances which do not
amount
to rape; or



(b)
commits or attempts to
commit with such a male or female any immoral or indecent act; or –



(c)
solicits or entices such a
male or female to the commission of any immoral or indecent act,
shall, if it be proved that such person
knew that such male or
female was an idiot or imbecile, be guilty of an offence.’
(This section was a substitution effected
by s 6 of the Immorality
Amendment Act 2 of 1988). This section was repealed by s 68 of the
Sexual Offences Act, 2007. The protection
it used to give vulnerable
victims who were mentally challenged is now embodied in s 57(2) of
the Sexual Offences Act, which
is to be read with s1 thereof.’




[6]
Under
cross-examination, it was put to the second appellant that he knew
that the complainant was intellectually challenged. In
his response,
the second appellant, stated, inter alia, that he had noticed and
knew that the complainant was not well.




[7]
Section
57 of the Sexual Offences Act provides:



Inability
of children under 12 years and persons who are mentally disabled to
consent to sexual acts



(1)
Notwithstanding anything to the contrary in any law contained, a
male or female person under the age of 12 years is incapable
of
consenting to a sexual act.



(2)
Notwithstanding anything to the contrary in any law contained, a
person who is mentally disabled is incapable of consenting
to a
sexual act.’




[8]
Katoo
fn 2 para 13.




[9]
S
v B

2003 (1) SA 552 (SCA) para 15.




[10]
See
also the dictum in Du Toit et al
Commentary
on the Criminal Procedure Act

(2018) at 22-29 et seq.




[11]
S
v Henderson

[1997] 1 All SA 594 (C).




[12]
Director
of Public Prosecutions, Transvaal v Minister of Justice and
Constitutional Development & others
2009
(4) SA 222 (CC); 2009 (2) SACR 130 (CC); [2009]
ZACC
8
para
164-167.




[13]
Gealall
Raghubar v The State

2012 ZASCA 188.




[14]
Supra
para 5.




[15]Director
of Public Prosecutions v Minister of Justice and Constitutional
Development

2009
(2) SACR 130 (CC); 2009(4) SA 222 (CC).




[16]
Rex
v K
1951
(4) SA 49 (O) at 54B-C.




[17]S
v Vilakazi

2009
(1) SACR 552 (SCA); [2008] ZASCA 87 para 21.




[18]
S
v Mlambo

1957(4) SA 727 at 738A.




[19]
Woji
v Santam Insurance Co

LTD,
1981(1) SA 1020(A) at 1028 –E.




[20]
S
v Van der Meyden
1999
(1) SACR 447 (W) at 449A
.




[21]
S
v van Aswegen
2001
(2) SACR 97 (SCA) para 8.




[22]S
v Sauls & others

1981
(3) SA 172 (A) at 180F.




[23]S
v Mafaladiso

[2002]
4 All SA 74 (SCA); [2002] ZASCA 92.





[24]
S
v Hammond
2004
(2) SACR 303 (SCA); [2004] ZASCA 71 para 22.




[25]
S
v Pillay

1977
(4) SA 531(A) at 535.