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Not Reportable

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE – GRAHAMSTOWN)

Case No: CA 14/2010

Date Heard: 23/08/10

Date Delivered: 23/09/10

In the matter between:

HERMEAS HENDRIK NIEWOUDT …........................Appellant

and

THE STATE ….........................................................Respondent

APPEAL JUDGMENT

REVELAS J

[1] This appeal emanates from proceedings under Section 52 of the Criminal Law Amendment Act, Act 105 of 1997 which was applicable at the time, and is against:

(a) The judgment of the regional magistrate who convicted the appellant of raping and indecently assaulting his step-granddaughter who was under the age of twelve years at the time

and

2. The judgment of the judge who subsequently sentenced the sixty-nine-year old appellant to undergo twelve years imprisonment.

[2] The appellant was arraigned before the regional court in Uitenhage, charged with one count of rape (count 1) and two counts of indecent assault (counts 2 and 3). On 7 September 2007 he was convicted by the regional magistrate on counts 1 and 2 and acquitted on count 3, which related to a different complainant. The case was then referred to the South Eastern Cape Local Division in terms of Section 52(1)(b) of the Criminal Law Amendment Act, as stated, and served before Pickering J, for purposes of sentencing the convicted appellant in a court which had the necessary jurisdiction to impose the prescribed minimum sentence of life imprisonment in such cases.

[3] Before a judge in such referral proceedings could impose a sentence, the conviction in the regional court first had to be confirmed as being in accordance with justice. Mr Hattingh, counsel for the appellant, argued against the confirmation of the conviction by first raising two points in limine and, thereafter, challenging the findings of the magistrate pertaining to the merits.

[4] Mr Hattingh then challenged the reliability of the evidence before the magistrate. Various queries were addressed to the magistrate who subsequently provided further reasons for the appellant’s conviction. The State conceded that the conviction and the sentence on count 2 could not stand, since the evidence led in support thereof did not in any way relate to the charge. Therefore, since the complaint raised against the second count was procedural in nature it could be set aside. Insofar as the first count was concerned, Pickering J adopted the approach that whereas there may be merit in Mr Hattingh’s submissions regarding the aforesaid, it was not for him, sitting as a single judge, to pre-empt the decision of a Court of Appeal in the event of leave to appeal being granted. He concluded that what he had to be concerned with at that point was whether or not the proceedings were in accordance with justice and held that they were. Accordingly, the conviction on count 1 (the rape) was confirmed.

[5] When the Court considered sentence the evidence of a social worker, Ms Melanie van Rooyen was led. She was employed by the Department of Correctional Services and prepared a report in terms of Section 276A(1)(a) of the Criminal Procedure Act. She did not consider the appellant a suitable candidate for correctional supervision. On 28 August 2009, Pickering J sentenced the appellant to undergo twelve years imprisonment and, on the same day, granted leave to appeal against both conviction and sentence to the Full Bench.

Background

[6] The complaint’s mother died in a motor-vehicle collision when she was five years old. Her father re-married. His second wife, was the appellant’s daughter, Beatrice or (Bokkie). In her the complainant found a nurturing and loving stepmother by all accounts. Unfortunately, the complainant’s father was less appreciative of Bokkie and formed an adulterous relationship with a married woman, Jackie, who was also Bokkie’s best friend. When Bokkie found her husband and Jackie together in a secluded spot near the local river, that was the end of her marriage to the complainant’s father. After living with Jackie for a while, the complainant’s father married Jackie in 2005. Even though she had a good relationship with “tannie Jackie”, the evidence suggested that she was still very fond of Bokkie to whom she remained loyal, even after she and her father moved in with Jackie in 2004.

The Evidence

[7] When the complainant gave evidence, she was fourteen years old and in grade nine and her evidence was presented with the assistance of an intermediary. She knew the appellant as Toelie and told the trial court that he had raped her for the first time when she was nine years old and in grade three. Briefly the complainant’s testimony in court was that over a period of three years, which started when she was nine years old, the appellant had sexual relations with her which included, but was not limited to, sexual intercourse. She testified that during the third year, the appellant’s actions tapered down to the mere touching of her private parts and breasts when they were alone, particularly when driving his vehicle. She said it stopped because she told him that she did not like it and she also began to find ways to avoid being alone with him, ensuring that she remained in a group with the other children or family members. Since her father’s divorce from the appellant’s daughter, she hardly ever saw the appellant. She gave several reasons for not disclosing much sooner what the appellant was doing to her. These were that the appellant was older than her and she was afraid of him. He had said to her that he would hurt her if she told anyone about what he was doing. She feared for her father’s reaction to such news. She also said it was because she simply could not bear the thought of being treated differently to other children. She said she felt very uncomfortable and too embarrassed to tell Bokkie what the appellant, Bokkie’s own father, was doing to her.

[8] What persuaded her to eventually tell Jackie all was the fact that she was thirteen years old, and unlike all her school friends, her menstrual cycle had not yet begun. This caused her anxiety and she wondered whether there was a connection between her sexual activities in the past and the absence of the onset of menstruation. So, she approached Jackie. This resulted in her being taken to the police to make a statement and to visit a psychologist. At that stage (September 2004) Jackie and the complainant’s father were not married yet.

[9] According to Bokkie, who also testified, the complainant’s father had begun making overtures to her in an attempt to effect a reconciliation with her, soon after they parted ways. Bokkie did not relent.

[10] The medical evidence, based on the testimony of Dr Botha, who examined the complainant when she was thirteen, was that the complainant’s absent hymen was a strong indication that she had been penetrated by something some time before.

[11] The appellant denied having had any sexual relations of whatsoever nature with the complainant. He admitted that in the course of family gatherings, church attendances, and visits to his daughter’s home, he often had contact with the complainant. They were like a granddaughter and grandfather. He admitted that they used to wrestle playfully at times. The appellant argued that the complainant had been traumatized by her father’s divorce from his daughter and she was therefore susceptable to the influence of Jackie, who must have suggested to her what to say in an endeavour to implicate him, to ensure that Bokkie was no longer a threat to her relationship with the complainant’s father.

Discussion

[12] The complainant testified that the first incident of a sexual nature took place when she and the appellant were wrestling in the lounge of her father’s home. He touched her private parts. She called out to Bokkie who was in the kitchen with the appellant’s wife, but Bokkie did not hear or chose not to respond. In court Bokkie said that she could recall no such incident.

[13] The second incident the complainant testified about allegedly occurred when she did not feel well and had to be fetched from after school care to be taken to a doctor. Because both her parents would be at work until 16h00, the appellant was tasked with taking her to the doctor. Thereafter the appellant did not take her back to school. He suggested that she stay at his house until her parents were at home. The appellant’s wife was not at home when they arrived. The complainant said the appellant took her into his bedroom, where he removed her shorts and panties as well as his own underpants and trousers. They sat on the bed. After inserting his finger into her vagina and licking her genitalia he placed her hand onto his genitalia and directed her to tug (“trek”) at it. She complied. Thereafter he had sexual intercourse with her, during which he repeatedly asked her if she was enjoying the intercourse. She said she did not. During cross-examination she said he asked her the same question when he penetrated her with his finger. In the bathroom she noticed that she was bleeding from her genitalia.

[14] After this incident, the complainant said the appellant had sexual intercourse with her on five or six occasions, but she could not give any details as to when, where, and how it happened. The complainant’s testimony in court does not contain much detail, and such detail as was provided by her, related to the first incident of rape which occurred at the appellant’s home. She said she was unable to remember at whose house the other incidents of sexual intercourse took place. She was very clear about the fact that she could not give any detail about them.

[15] During cross-examination she admitted that she had said in her police statement, that these incidents always occurred at the appellant’s home. She then fixed the number of incidents at five. She also testified that once the appellant had made her sit on a chair while he had sexual intercourse with her.

[16] The complainant made two statements to the police. In the first statement, in which she dealt with the day the appellant had fetched her to take her to the doctor, she did not mention that sexual intercourse took place. She only described how the appellant inserted his finger into her, licked her and how she had to stimulate him. She mentioned in the same statement that she had sexual intercourse with the appellant about five times. She said that he had only fondled her genitalia and breasts at her own home. She also stated that during sexual intercourse with the appellant she was sometimes required to stand upright, or sit on a chair or lie down. She also said that every time before they had sexual intercourse she had to manually stimulate the appellant until he ejaculated. She described this in graphic terms.

[17] Throughout her evidence in court, and in her statements to the police, the complainant clearly and deliberately distinguished sexual intercourse and the other related conduct, which I am hesitant to term as “foreplay”, but it is in this context that the graphic description of ejaculation, each time before sexual intercourse, is rather curious. If there was perhaps any doubt as to what the complainant meant when she said the appellant had sexual intercourse with her (“seks met my”), it was removed by her second police statement, obviously deposed to for clarification of this aspect. After the introductory paragraphs in her second statement she said: “Elke keer as ek praat van oom Toelie wat met my seks gehad het, het ek bedoel … hy bo-op my gelê het en sy penis in my vagina gedruk het. Hy het per geleentheid al laat ek bo-op hom moet sit met sy penis binne in my vagina”. This paragraph also introduces another variation on the manner of sexual intercourse, not mentioned by the complainant elsewhere. She did, however, in this statement, again mention the sexual intercourse which allegedly took place on a chair.

[18] About her conversation with Jackie the complainant testified that her way of easing into a discussion about the subjects of the sexual abuse and why she had not commenced with her menstrual cycle, was to tell Jackie only about one small aspect of her problem (“’n stukkie daarvan”) and then she knew that Jackie would probe and question her, and would not stop her interrogation until she knew everything, particularly the rapist’s identity, which she (the complainant) did not want to reveal. (“Sy sou nie ophou om my te vra wie dit was nie”). According to the complainant, it was Jackie who had asked her if it was the appellant who had raped her and she said yes. When Mr Schoonraad, for the appellant, wanted to know why Jackie would suggest the appellant, she answered that it was because he (the appellant) had also raped one of her aunts. This was immediately placed in dispute by the appellant’s representative.

[19] Jackie also made a police statement and testified at the trial. She mainly testified about what the complainant had related to her regarding the alleged incidents which gave rise to the charges in question. She testified that the complainant had, one Saturday in September 2004, left a note next to her bed with the request to talk to her about an urgent “secret”. They went outside to talk. As anticipated by the complainant, Jackie (on her own version) indeed followed the prompting and questioning route to extract information from the complainant.

[20] Jackie said the complainant told her that someone had touched her (indicating her genitalia) when she was nine years old. She was reluctant to identify the person because she told Jackie that it no longer mattered who he was because she no longer saw him. Jackie said that when she (Jackie) began naming possible suspects, the complainant told her that it was the appellant.

[21] This part of Jackie’s evidence contradicts the complainant’s evidence and this is a rather serious discrepancy. Jackie disputed that she ever mentioned or suggested the appellant as the perpetrator. Jackie’s testimony also contradicted the complainant’s testimony on another important aspect. Jackie testified that the complainant, when referring to the first touching incident when she and the appellant were wrestling, had told her that he had touched her genitalia by reaching with his hand underneath her underwear. The complainant’s testimony was that it was above her clothing. She was specifically asked by the prosecutor whether it was on top of or under her clothes. In my view, this type of contradictory evidence was sufficiently serious to have raised concern with the magistrate. There were also other contradictions.

[22] Jackie said the complainant had told her that the appellant had sexual intercourse with her no less than three times. The complainant, on several occasions in her testimony, referred to five or six times.

[23] According to Jackie, based on what she was told by the complainant, no sexual intercourse took place on the first day the appellant fetched the complainant from the doctor. It only occurred on the second occasion when he had to take her to the doctor. This incident was not referred to by the complainant in her testimony or in her police statement. Jackie’s statement to the police and her testimony in court were far more detailed than the complainant’s own version of the events.

[24] With regard to the discrepancies which existed between her evidence in court and in her statements to the police, the magistrate stated that generally the policeman writing down a statement decides on the length of it and determines which questions are asked and which ones are not, thereby often limiting the witness. Consequently, the magistrate reasoned, one should be cautious not to be over critical of a witness who testifies about facts not contained in the statement. The aforesaid reasoning may be sound in principle, but it is not applicable to the complainant’s testimony if all the evidence is assessed as a whole.

[25] The magistrate accepted that although there was nothing wrong with the complainant’s evidence there was nothing (“niks”) to corroborate her allegations, and that although the evidence suggests that she could have been raped more than once, at least one rape was proved beyond reasonable doubt. Given the contradictions outlined above, this reasoning is flawed.

[26] The complainant was a single child witness and the magistrate incorrectly held that there was nothing wrong with her evidence. As shown above, there were many aspects of her testimony which raised concern, and should have concerned the magistrate, particularly if her testimony is compared with the detailed and graphic testimony of Jackie. The magistrate did not deal sufficiently with the substantial problems which surrounded the complaint’s testimony. It is evident from both his judgment and the record, that the magistrate was impressed by the complainant as a person as well as a witness. Courts have often warned against according too much weight to demeanour, which “is no substitute for evaluating the content of the evidence, taking into account the wider probabilities”.¹

[27] In dealing with the fact that the complainant was a single witness, the magistrate referred to the judgment of Olivier JA in S v Jackson² where it was observed that the cautionary rule in sexual assault cases was based on an irrational and outdated perception that complainants in such cases, who are usually woman, are unreliable as witnesses. This reasoning adopted by the courts no doubt was also adopted by the legislator in Section 208 of the CPA, which provides that an accused may be convicted on the “single evidence of any competent witness”. However one should not lose sight of the imperative norm that the evidence must still be reliable.³

[28] The magistrate also erred in finding that Dr Botha’s evidence proved “onteenseglik” that someone had sexual intercourse with the complainant. This is incorrect. Dr Botha actually said it was not possible to find that the absence of her hymen was attributable to sexual intercourse.

[29] The appellant’s version was not evaluated by the magistrate. His testimony was rejected out of hand by the magistrate who never considered the possibility of the complainant being influenced, other than to remark that the appellant speculated about it. In accepting the complainant’s evidence as reliable, the magistrate’s reasoning was that the complainant, a decent, intelligent young girl, who respected her family, who was by all accounts an obedient girl, was hardly likely to falsely implicate someone “dear and near” to her in such heinous conduct. There are inherent dangers in this type of reasoning and the courts have warned against them.

[30] In S v Lesito⁴ the court held: “Daar moet ook daarteen gewaak word om sondermeer op ‘n beskuldigde ‘n las te plaas om ‘n verduideliking te verstrek waarom ‘n getuie namens die Staat sou lieg”. The magistrate was obliged to give reasons why he disbelieved the appellant and to assess his evidence against the probabilities and the testimony of the other witnesses in the trial, with adequate regard to the cautionary rule applicable to a single child witness.⁵

[31] The relevance of the aforesaid oversight is increased where the evidence of the single witness is shown to be unreliable, as demonstrated above. The magistrate ought to have accorded more weight to the discrepancies in the evidence of the state witness particularly where there were indications that the complainant may possibly have been influenced by an adult with regard to certain aspects of her testimony.

[32] Accordingly, the appeal succeeds and it is ordered that the appellant’s conviction and sentence are set aside.

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E REVELAS

Judge of the High Court

Chetty J: I agree.

_________________

D CHETTY

Judge of the High Court

Plasket J: I agree.

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C PLASKET

Judge of the High Court

Counsel for the Appellant: Adv A Hattingh

Instructed by: Netteltons Attorneys

Grahamstown

Counsel for the Respondent: Adv MM Sandan

Instructed by: Director of Public Prosecution

Port Elizabeth

Date Heard: 23/08/10

Date Delivered: 23/09/10

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