South Africa: Eastern Cape High Court, Grahamstown

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Manyota v S (CA & R 305/11) [2012] ZAECGHC 26 (3 May 2012)

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1. This is an appeal against a conviction on a charge of indecent assault by a Regional Court Magistrate in Port Elizabeth. Leave to appeal was refused by the magistrate and the appellant comes before this court with leave of this court, granted on petition.

2. The charges against the appellant were to the effect that during the period between 30 January 2007 to 18 June 2007 and on diverse occasions, he wrongfully and unlawfully assaulted the complainant, (his own son), by penetrating his anus with his penis.

3. An application was made by the prosecutor to lead the complainant’s evidence via an intermediary. The complainant was eleven years old at the time and the application was not opposed. The magistrate’s questioning of the child was attacked as one of the grounds of appeal, the submission being that “the magistrate did not test the complainant’s ability to distinguish between right and wrong sufficiently, it (sic) did not enquire whether the complainant understood the nature and the import of taking the oath.” It is important to quote the questions and answers in order to assess the criticism.

Good morning Sive --- (No reply audibile)

Are you comfortable? --- Yes.

The court is going to ask you a few questions. Firstly, do you go to school? --- Yes.

What school do you go to? --- (Inaudible) it is (indistinct) school.

What grade are you in? --- Grade 6.

You are doing grade 6. Do you have many friends at school? --- Yes I do.

Do you enjoy going to school? --- Yes

Do you go to church? --- Yes.

And when you are at home, if you lie to your parents what do they do to you? --- I’m going to tell the truth Your Worship.

Do your parents punish you? --- (Indistinct) I’m not being assaulted or punished.

No I am saying if you are naughty or you don’t tell the truth do your parents or guardians actually punish you in any way? --- (No answer audible)

(Indistinct) what he tell us. You don’t know? Do you have many friends there? --- Yes I do.

Look to your right hand side, there are three balls on the wall coloured in. now the big ball, if the court say it is purple is the court telling the truth or not? --- (Inaudible)

4. The court then gave both the prosecutor and the defence attorney an opportunity to ask questions but neither elected to do so. The court then found that the complainant was, due to his youth, unable to understand the oath and admonished him to tell the truth, which the complainant undertook to do. Although some of the responses were inaudible the court was clearly satisfied, particularly with reference to the last response, that the witness could distinguish between a correct answer and an incorrect one, and that the court was therefore satisfied that he could accordingly distinguish between the truth and falsehood.

5. Ms McCallum, for the appellant, relied on various authorities in support for her contention that the court should have ruled the complainant’s evidence inadmissible.¹

6. Section 164 (1) of the Criminal Procedure Act ² provides that there must firstly be a finding that the witness is unable to understand the nature and import of the oath or the affirmation, after which the witness may be permitted to give evidence, provided that the witness is admonished to speak the truth.

7. The section has been the subject of much judicial interpretation over the years, with the earlier views requiring strict compliance and rejecting non-compliant evidence as inadmissible.³ The proviso to the section was declared unconstitutional and referred to the Constitutional court in S v Mokoena.⁴ Bertelsmann J, in referring the matter to the Constitutional Court, felt that there might be cases where, although a child witness could not distinguish between right and wrong, that they could still conceivably convey important evidence to the court, and that to find that that all of the child’s evidence was inadmissible would be to contravene the child’s rights contained in section 28(2) of the Constitution. Bertelsmann J concluded that removing the proviso to the section would permit such evidence to be admitted. The Constitutional court in Director of Public Prosecutions, Transvaal v Minister of Justice and Constitutional Development, and Other,⁵ disagreed and found that it would undermine the accused’s right to a fair trial if evidence of a child who did not understand what it meant to tell the truth were to be admitted. The court found that it is not necessary for the child to appreciate the abstract concepts of truth and falsehood, but only what it means to tell the truth and pointed out how important it was to have competent qualified intermediaries to assist the court in this regard.⁶

8. As pointed out by Streicher JA in S v B,⁷ although preferable, the section does not necessarily require a formally noted finding – the judicial officer may conclude that due to the youthfulness, level of education or other reasons that the child would not understand the oath.

9. I am satisfied that although the witness was not questioned at length, that the magistrate in this case was satisfied that although the child could not comprehend what it was to depose to an oath, he could distinguish between right and wrong, and was therefore competent to testify. The witness was therefore correctly admonished to tell the truth.⁸

10. The complainant’s evidence was given on 17 September 2009, some two and a half years after the events complained of. His evidence as to the first alleged offence was that he, his friends and his father had been to a traditional ceremony and after they went home his father asked him to go to bed and undress, after which he “made some dirty things to me”. When asked to explain, he said that his father took out his penis and inserted it into his anus, that he “made some movements,” and that it was painful. He said that the accused did it again on another occasion when he was drunk but that that was the last time he did it. It is important to note that most of the evidence elicited from him was via very direct leading questions, thus requiring circumspection when considering the reliability of his evidence.

11. When asked to advise how it came about that the abuse was revealed, the complainant said that it was due to the fact that he also did what the accused had done to him, to other children in the neighbourhood. On being pressed on the issue, he explained that an elder man by the name of Bredumza, who was a friend of the accused’s, asked him one day why he was walking as if in pain and he told him that it was because of what the accused had done to him. Bredzuma, who was a friend of the accused, however did nothing about the matter. The prosecutor subsequently disclosed that he had consulted with Bredzuma, but elected not to call him as a witness as he would not confirm what the complainant had said.

12. The prosecutor then put it to the complainant that in his police statement he had said that he had done what his father had done to him, to four girls and three boys, on numerous occasions and that other boys had also done the same things to him, to which he agreed. When asked what the name of the boy was who had done it to him the complainant said that he could not remember his name, although it was his friend.

13. Under cross examination it was put to the complainant that the accused would testify that after his wife had passed away in 2005 that he had stopped drinking altogether. The complainant was asked whether he could confirm or deny that his father had never been drunk again. He said that he could not remember, despite his evidence in chief saying that on the second occasion his father had been drunk.

14. He was advised that the accused would say that he never recalled going to a traditional ceremony at a neighbour’s house and was asked to give the name of the neighbour or any of the friends who had gone with him, but he could not. He was then asked to advise who he first told about the assaults – Bredumza or Nomhle. The prosecutor had reminded the complainant that he had told Nomhle, the mother of the one girl, to which the complainant agreed but no details of the circumstances under which he told Nomhle were elicited. Those circumstances subsequently turned out to be significantly relevant.

15. The complainant was again reminded under cross examination that he had said in his police statement that he had slept with four girls and three boys and was asked if he could remember any of their names. Although he initially couldn’t, he subsequently said that he could remember the name of one of the boys. He could also not remember how many times it happened.

16. He confirmed under cross examination that he had been beaten with a hose pipe by Nomhle, one of the girls’ mothers, after it had been revealed that he had had sex with her daughter. It was put to him that after he was beaten with the hose pipe that the accused had asked him why he had done those things and that he had told his father it was because Mabutana had done those things to him. He agreed that he had said that, which contradicts directly what Nomhle later said when asked the same question.

17. The State then called Nomhle. She stayed opposite the complainant’s house. She said that her child told her that the complainant had penetrated her both vaginally and anally. She then went looking for the complainant and asked him about the allegations, which he confirmed as being true. She said that she then told the complainant’s father later that day and was told by him that he knew that his son “usually do this.”

18. Prior to her meeting with the accused, she said that the complainant had told her that he had also done the same thing to other girls and boys and that his father had done it to him repeatedly. She later changed this evidence and said that he only told her afterwards.

19. Under cross examination she confirmed that she had beaten the complainant with a hose pipe, although she said that it had been with the accused’s consent. Although she used the words “when I started to hit (the complainant)”, she then said that she only hit him once. Although she indicated in her evidence in chief that the complainant had already at that stage told her of the accused’s involvement it then transpired that even after she had beaten him, that he had not told her. She denied that the complainant had mentioned that Mabutana had done it to him and again said that the complainant then told her that it was his father. She confirmed that Mabutana, another school boy, lived at the same house as her, her daughter and mother.

20. In re-examination she then said that the complainant had been coming from the fields on a subsequent day when he told her that it had been his father who had done those things to him.

21. The State then called Mabutana. He was sixteen years old at the time of the trial. The prosecutor asked him whether he had “done any dirty things” to the complainant, which he denied, in particular that he had ever had sexual intercourse with him. Under cross examination he denied being present when the complainant was hit with a hose pipe. He was advised that the complainant had twice said that he had “done dirty things” to him. He denied emphatically that he had ever done anything untoward to the complainant and also denied that they were friends and said that they just used to play ball together.

22. The J88 confirming the presence of injuries indicative of anal penetration of the complainant was handed in by consent, after which the State closed its case and the accused testified in his own defence.

23. The accused testified that he was called to go to Nomhle’s house by children in the neighbourhood one day when he was at another neighbour’s house. When he got to Nomhle’s house he heard the complainant screaming and he saw that Nomhle was hitting him with a hose pipe. As he put it “she hit the child until she had enough… and she threw the pipe there and said that she does not care even if she is arrested.” He denied that he had given her permission to hit the complainant and said that while Nomhle was hitting the complainant, the complainant said that it was Mabutana that had “done dirty things to him”, but that when he said that, Nomhle would make a noise in his ear. He said that the complainant also told him later at home that it had been Mabutana who had done it to him.

24. Under cross examination he was asked whether the complainant had suffered any injuries as a result of Nomhle’s beating. He confirmed that he had but had not taken him to a doctor as he first wanted to get to the bottom of the allegations. He was taken to task by the prosecutor about not having taken him to a doctor or a clinic and when he confirmed that the marks were there two weeks or so later, when he was arrested, after which the complainant was examined, it was pointed out to him that there were no signs of a beating evident reported in the medical report.

25. The accused also alleged that Nomhle had forcibly taken the complainant the next day and had slapped him. He confirmed that he had told his previous attorney about those allegations, the implication being that he had not told his present attorney.

26. The prosecutor argued that although the complainant was a single witness and that his evidence should be treated “with the utmost care,” he was of the view that he was a reliable witness and that his evidence was very clear and did not change, “because he keep on saying that it was his father who was the first person to do this to him.” The prosecutor then glossed over the evidence relating to Mabutana as follows:

“Now coming to the point where he said that Mabuti (Mabutana) also did this to him. Your Worship he is a child witness. Mabutana was called and Mabutana indicated no. I did not do this to him. It might be so, I am not saying that is so, it might be so that he did not get the question correctly or understand the question correctly.”

27. There can be no fudging of the issue. Either the complainant or Mabutana is lying, or both are lying. Wherever the truth lies, the reliability of the complainant’s evidence was weakened by Mabutana’s evidence.

28. The prosecutor argued that the accused’s version was full of contradictions, that he changed his evidence and that it should be rejected. It is not correct that he changed his evidence. It is true that there were things that he said that Nomhle had done which were not put to her in cross examination, but his evidence did not vacillate or seem to be at all unconvincing.

29. If I had to consider whose version was more probable I would have to say that the accused’s version of the events that transpired with Nomhle are more likely to be true than hers. It would have required remarkable restraint by a mother whose young daughter had been sexually violated in such a way, who was in possession of a hose pipe in the one hand and the alleged perpetrator in the other, to exercise the restraint that she claimed that she did, and only strike the complainant once. It would probably not have been unlikely that she may have also used force the following day in a further attempt to make him tell the truth. I don’t find the evidence regarding her making noises when Mabuti’s name was mentioned as far-fetched as the prosecutor did. If Nomhle thought that he was lying, as she might well have, there is no reason why it should be so strange for her to make angry noises in his ear.

30. It is an unfortunate fact that in many cases legal representatives fail to obtain comprehensive statements from the accused. In some cases it is due to slackness on the part of the attorney, in other cases there are facts which are not volunteered by the accused to his attorney because the accused doesn’t think that they are relevant. Sometimes it is a combination of the two and sometimes it is because facts which prior to testifying may have justifiably seemed irrelevant become relevant. It is certainly not correct to conclude that because a new fact comes out in cross examination that the accused is automatically a lying witness – and therefore guilty. The facts must be evaluated in context and against the balance of the witness’s evidence. The new facts might well provide evidence of a recent fabrication but it is not an immutable rule that they will.

31. After argument the court called a social worker whose report had been handed in by consent when the State applied for the complainant’s evidence to be heard via an intermediary.

32. The social worker said that she had interviewed the complainant five times between the 27^th September 2007 and the 14^th February 2008 and that he had consistently told her that it was his father who had indecently assaulted him. Although she said that she also based her conclusion that the complainant was telling the truth on reports she had received from other children, it was pointed out to her that she had made no mention of any other interviews in her report and she could also not recall which children she had interviewed. She confirmed that she based her conclusion that the child was telling the truth solely on the fact that he had confirmed it on repeated occasions and that she had not conducted any tests to determine whether he was telling the truth or not. She was unaware of the fact that the complainant had told the court that other people had also indecently assaulted him and confirmed that she had pertinently asked him that, which he had denied. Quite clearly he either misrepresented the facts to her or to the court.

33. The magistrate, in considering the evidence of the complainant, was alive to the fact that the evidence of young children must be assessed with a critical eye – in her words:

“A form of safeguard is required which eliminates the risk of a wrong conviction. The court must find a guarantee for the reliability of the complainant’s evidence. The evidence of the complainant must therefore be scrutinised with care because a young child’s imagination is so strong that it is almost impossible for them to differentiate between fact and imagination. A child is also extremely susceptible to suggestions. The evidence of a single witness must also be clear and satisfactory in every material aspect but while there is always a need for special caution, that should not be allowed to displace the exercise of common sense.”

It is also clear, from for instance R v J, ⁹ another authority referred to by the magistrate, that a spontaneous identification made immediately or shortly after the event, is viewed as stronger evidence than an identification made some time after the event, a situation which we are dealing with in this case, where we do not know whether the first report was made days, weeks or months after the events. What we do know is that the first report to Nomhle was elicited under duress, a factor which further erodes the reliability of the report. Many reports are made under duress and must be viewed in context against all the evidence presented. In some cases such identifications may well persuade the court to find that the State has proved its case beyond reasonable doubt, but not without looking very critically at that evidence.

34. It appears that the magistrate considered that the complainant’s evidence was more probable than that of the accused.

“The accused created an unfavourable impression on the court. Further no reason was in fact given either by the State or the defence why the complainant would want to lie against the accused. Therefore if one weighs the evidence of the State witnesses as against that of the defence, the court finds that the evidence of the Sate witnesses far outweigh that of the accused.”¹⁰

35. The magistrate found that the complainant was an intelligent 11 year old boy who testified in a candid and convincing fashion. The replies elicited under cross examination however appeared from the record to be anything but convincing. The child’s evidence was far from satisfactory. It is simply not correct to state, as the magistrate has, that “he answered all questions that were put to him without hesitation.” Most of the answers in examination in chief were suggested to him and under cross examination he was either unable to answer most of the questions or sought refuge in an alleged inability to remember.

36. The magistrate found “corroboration” in the fact that the medical evidence was consistent with evidence of the complainant having been anally penetrated. This lost sight of the complainant’s evidence that his other friends had also done it to him, so that fact was neutral and certainly not corroborative of the State’s case against the accused. The magistrate then also found “corroboration” in the fact that the complainant had told both Nomhle as well as the friend of the father, Bredzuma. As indicated above, the identification to Nomhle was some time after the event, possibly months, and certainly not spontaneous, and was also elicited under duress. The identification to the father’s friend Bredzuma, was not confirmed by Bredzuma, so carries no weight.

37. The magistrate then found the final corroboration in the social welfare officer’s report and found that the complainant had no motive to falsely accuse his father but never dealt with the fact, and the implications that flow from his denial, of the child being specifically asked by the social worker whether any other people had been involved.

38. The magistrate labelled the accused’s evidence as vague and unconvincing. His evidence however appeared to be far more convincing than the complainants’. The magistrate found that the accused’s difficulty in explaining why he never took the complainant to the doctor was evidence of his vagueness and unconvincing testimony, yet viewed in context, there was no indication that the child needed medical attention. It would have been surprising had the child indeed needed medical attention after receiving a few lashes with a hose pipe. The accused’s version that he wanted to get to the bottom of the allegations sounds like the natural thing to want to do under the circumstances, especially if the child had admitted to molesting other children in the neighbourhood. The magistrate also found that the accused was the only adult in the complainant’s life and that it was therefore unlikely that he would falsely accuse his father. The evidence never disclosed that the accused was the only adult in the complainant’s life but even if he was, the complainant could have wanted to protect his friends and mentioned the first name that came into his mind when being beaten by Nomhle. It is in any event not for the accused to provide a reason why the complainant might be lying.

39. The accused’s evidence was simple and straightforward. It was not shaken under cross examination. There was no independent corroboration linking the accused with the offences. The complainant’s evidence was unconvincing and demonstrably unreliable. It is axiomatic to say that to repeat a statement a number of times does not provide independent corroboration of the facts mentioned in the statement.

40. As was stated in S v J: ¹¹

“the cautionary rule in sexual assault cases is based on an irrational and out-dated perception. It unjustly stereotypes complainants in sexual assault cases (overwhelmingly women) as particularly unreliable. In our system of law, the burden is on the State to prove the guilt of an accused beyond reasonable doubt - no more and no less. The evidence in a particular case may call for a cautionary approach, but that is a far cry from the application of a general cautionary rule….”¹²

41. In S v J ¹³ Olivier JA referred with approval to the English court of Appeal in R v Makanjuola, R v Easton,¹⁴

In some cases, it may be appropriate for the Judge to … exercise caution before acting upon the unsupported evidence of a witness. This will not be so simply because the witness is a complainant of a sexual offence nor will it necessarily be so because a witness is alleged to be an accomplice. There will need to be an evidential basis for suggesting that the evidence of the witness may be unreliable. An evidential basis does not include mere suggestions by cross-examining counsel.' ¹⁵

In this case there was clearly an evidential basis for approaching the evidence of the child witness with the utmost caution.

42. Under all the circumstances I am of the view that the appeal against conviction should be granted and that the conviction and sentence be set aside.

____________________________________

L D KEMP

ACTING JUDGE OF THE HIGH COURT

I agree and it is so ordered

____________________

G GOOSEN

JUDGE OF THE HIGH COURT

For applicant: Ms H McCallum instructed by Grahamstown Justice Centre.

For respondent: Mr J Engelbrecht instructed by the State Attorney.

1S v Mashava 1994(1) SACR 224(T), Henderson v S [1997] 1 ALL SA 594 (C), S v V 1998(2) SACR 651 (C), S v Vumazonke 2000(1) SACR 619 (CPD) and DPP v Minister of Justice 2009 (2) SACR 651 (C)

2Act No. 51 of 1977

3Mashava (supra) and Vumazonke (supra), S v Gallant 2008 (1) SACR 196 (E)

4S v Mokoena [2008] ZAGPHC 148; 2008 (5) SA 578 (T)

5 2009 (4) SA 222 (CC)

6At paras [166] to [168]

7 2003 (1) SA 552 (SCA) at para [15]

8See S v QN 2012 (1) SACR 380 (KZP) at paras [11]-[13]

91966(1) SA 88 (SR)

10At p 85 lines 5 -11 of the record.

11 1998 (2) SA 984 (SCA)

12At 1009 F

13ibid

14 [1995] 3 All ER 730 (CA)

15At 1010 D-D