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IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE HIGH COURT, CAPE TOWN)

Case no: A510/2009 and A444//2010

In the matter between:

GERRIT CEDRAS …...............................................................................................................................Appellant

v

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

JUDGMENT HANDED DOWN ON FRIDAY, 11 FEBRUARY 2011

CLEAVER J

[1] This is an appeal with the leave of the court a quo against the convictions and sentence imposed on the appellant in the regional court of George.

[2] The appellant was found guilty of attempted rape and on two counts of indecent assault and was sentenced to five years imprisonment, the three counts being taken together for the purposes of sentence.

[3] The complainant was a young girl who was 12 years and two months old when she testified. Her evidence was that when she was in at school in sub A she went to the house of the parents of the accused one afternoon after returning from school. She would probably have been in sub A in 2002 which means that at that stage she would have been seven years old. It would seem that the accused's parents lived next door or very near to where the complainant lived with her parents. It was her habit to visit the home of the accused's parents after school as her mother had arranged for her to stay there until she came back from work. After watching television for a while, the accused, who was also in the house, sent her into the bedroom and told her to get onto the bed. He then pulled her trousers to her knees and inserted his penis into her vagina while she was lying on the bed Asked to explain this in more detail she said that the accused went in and out of her ("foe het hy ingegaan en hy net uitgekom....heeltyd aangegaan'). She did not protest as she was frightened and remained silent because she thought if she did not remain silent he would hit her. She gave no indication as to why she had this view. After this she pulled up her trousers and went home. She did not report the incident to her mother when the latter came home. In respect of count 2 she testified that when she was in sub B (this would have been in 2003 when she was eight years old) the accused sent her brother to a near-by shop to buy chips and in the latter's absence, the accused asked her to sit on his lap whereupon he unzipped his fly and when she sat on his lap rubbed his penis between her buttocks. As soon as the brother returned to the house, the accused let her stand up. Again she did not report the incident to her mother or anyone else. She was then asked whether anything else had happened whereupon she referred to an incident which she said took place during the previous year. The father of the accused had sent her to buy something at the nearby shop for him and when the accused saw this he asked her to buy some chips for him. This she did and when she gave her the chips he asked her if she would come around to him again. She says she knew what would happen if she agreed and when he said that he would give the chips to her. she became afraid of what would happen and therefore threw the chips at him and ran to her home where she told her grandmother. She was crying at the time and said that she told her grandmother that the accused wanted to rape her again. When asked whether she used the word 'rape' she answered affirmatively.

[4] Thereafter she referred to a third incident which formed the basis of count 3. saying she was with the young child of the accuseds sister who was playing with a ball and that after the accused had kicked the ball away and then got her to sit on his lap. It would seem that what happened was that the accused did no more than place his hands on the front of her thighs whereafter she got off his lap and went home. This incident formed the basis of count 3.

[5] The report which the complainant made to her grandmother led to charges being laid against the accused and his subsequent prosecution. On the 9 November 2005 the complainant was examined by the district surgeon. Dr Kapp, who also testified in court. He testified that she reported to him that she had been raped when she was seven years old, but his written report compiled at the time had no reference to any other incidents of a sexual nature, nor did he testify as to any such incidents. His gynaecological examination revealed that all of his findings were normal except that there was a small cleft on the hymen and below that a scar of two to three millimetres at the 11 o' clock position. From that he concluded that the scar was probably an old tear to the hymen which had healed. The scar was not consistent with full penetration by a male penis as the injuries would have been more severe on full penetration on such a small child, especially at the age of seven when she would have been even smaller. Although it was possible that a penis could have entered only as far as the labia minora and possibly have been responsible for the tear, the tear could also have been caused by a finger or a foreign body or "something like that", as explained by Dr Kapp.

[6] The appellant denied all the complainants allegations and in particular denied being present at his parent's home on the occasions testified to by the complainant. He testified he was in full time employment at the time and worked for a butchery business known as Watsons.

[7] The accused had been charged with rape on count 1, but the regional magistrate found that in view of the evidence of the district surgeon, rape could not have occurred and found the accused guilty of attempted rape. As I have mentioned, accused was also found guilty on counts 2 and 3, being charges of indecent assault.

[8] Ultimately the state was obliged to rely on the evidence of only the complainant. The evidence of the grandmother, to whom the state contended the so-called first report of the offences had been made, could not be relied upon, as was conceded by counsel for the state before us, since she testified that as a result of a stroke which she had suffered she was unable to recall what had been said to her and merely repeated in court what the detective had totd her that morning. Although the regional magistrate found support for accepting the complainant's version in her testimony relating to the detailed story she told her grandmother, he did not specifically record that the grandmother's evidence was to be disregarded. In finding for the state, the regional magistrate recorded that because of the detail which a young girl of 12 years old was able to supply, such detail could not be "consistent with imagination on her part".

[9] The case for the appellant is that although the regional magistrate recorded that

"In assessing the evidence of the complainant, a Court must be aware of the dangers of convicting on the single evidence of a witness, more particularly when the witness is a child,"

it does not appear from the judgment that he did in fact have regard to these dangers when assessing the evidence of the complainant. Counsel for the appellant submitted then that, properly analysed, the evidence was insufficient to prove the state's case beyond a reasonable doubt.

[10] The difficulty for the state in the first instance is that the complainant's main testimony related to events which had taken place five and four years earlier when she was seven and eight years old. The manner in which a court should approach the evidence of a young child and the evidence of a single witness who is also a child witness is comprehensively set out in the recent judgment of S v Dyira¹

"The requirement in such a case is, as always, proof of guilt beyond reasonable doubt, and, to assist the courts in determining whether the onus is discharged, they have developed a rule of practice that requires the evidence of a single witness to be approached with special caution (R v Mokoena 7956 (3) SA 81 (A) at 85. 86). This means that the courts must be alive to the danger of relying on the evidence of only one witness, because it cannot be checked against other evidence. Similarly, the courts have developed a cautionary rule which is to be applied to the evidence of small children (R v Manda 1951 (3) SA 158 (A) at 162E - 163E). The courts should be aware of the danger of accepting the evidence of a little child because of potential unreliability or untrustworthiness. as a result of lack of judgment, immaturity, inexperience, imaginativeness, susceptibility to influence and suggestion, and the beguiling capacity of a child to convince itself of the truth of a statement which may not be true or entirely true, particularly where the allegation is of sexual misconduct, which is normally beyond the experience of small children who cannot be expected to have an understanding of the physical, social and moral implications of sexual activity (S v Viveiros [2000] 2 All SA 86 (SCA) para 2). Here, more than one cautionary rule applies to the complainant as a witness. She is both a single witness and a child witness. In such a case the court must have proper regard to the danger of an uncritical acceptance of the evidence of both a single witness and a child witness (Schmidt Law of Evidence 4-7)."

As to the evaluation of the evidence the court said the following:

Our courts have laid down certain general guidelines which are of assistance when warning themselves of the danger of relying upon a single witness who is also a child witness. In the ordinary course:

(a) a court will articulate the warning in the judgment, and also the reasons for the need for caution in general, and with reference to the particular circumstances of the case;

(b) a court will examine the evidence in order to satisfy itself that the evidence given by the witness is clear and substantially satisfactory in all material respects. Here the delay of 17 weeks in making a complaint must be regarded as a material defect in the evidence;

(c) although corroboration is not a prerequisite for a conviction, a court will sometimes, in appropriate circumstances, seek corroboration which implicates the accused before it will convict beyond reasonable doubt. Here there was no corroboration;

(d) failing corroboration, a court will look for some feature in the evidence which gives the implication by a single child witness enough of a hallmark of trustv/orthiness to reduce substantially the risk of a wrong reliance upon her evidence (S v Artman 1968 (3) SA 339 (A) at 340H). This is the route which the State must take to support this conviction/²

[11] In the present case, the regional magistrate gave no indication that he was satisfied that the cautionary rule had been complied with and he also did not in any way refer to the reliability or credibility of the complainant's evidence. As to the detailed nature of the evidence on which the regional magistrate relied, I on the other hand have certain misgivings, especially in respect of the details which the complainant gave as to when she alleged that the incidents had occurred. How she was able to remember that the attempted rape occurred on a Monday in 2002 and that the first incident of indecent assault occurred on a Thursday in 2003 was never explained or explored. She testified that she was alone with the appellant because his parents had gone to church on the afternoon of the attempted rape (no indication was given as to the time of day) adding that they did so three times a week. The appellant says that his parents go to church on Wednesdays and Sundays, but neither side explored this aspect and particularly when during the afternoon they might have gone to church The complainant's version as to how she was raped is clearly not borne out by the doctor's evidence and it is for this reason that the court a quo found that the accused had only attempted to rape her. The court found that because of the complainant's young age, she probably did not understand what penetration of her vagina meant, notwithstanding her evidence that she did. The fact is however that her evidence as to the rape was unsound

[12] The complainant's reasons for not reporting the three incident in respect of which the appellant was charged were conflicting. Initially she testified that after the first incident she asked the appellant if she could tell her mother what had happened and said that she did not do so as the accused had told her that he would hit her if she reported the incident. Later she said that the accused had told her that she would never see her mother again if she reported the incidents. When asked why she had not told her brother about the incident which formed the basis of count 2 she answered that she feared that if she did so, she and he would have been locked up in a shack forever. No basis was given for this conclusion. When asked why she did not report the matter to her father who was still staying with them at the time that the incidents occurred she gave an answer which is difficult to understand, namely "My pa sal horn seermaak.". Her evidence that she told her grandmother after the third incident that the accused had wanted to rape her again is also a little difficult to understand having regard to her evidence that there was no suggestion of rape in respect of the two other incidents which she said had taken place after the alleged rape in 2002.

[13] Although I make so such findings, these differences and possible exaggerations may well be as a result of the immaturity, inexperience, imaginativeness and susceptibility to influence and suggestion which the learned judge referred to in the extract I referred to in S v Dyira.

[14] Not only did the regional magistrate fail to address the issue as to whether the cautionary rule had been complied with, he failed in any way to deal with evidence concerning counts 2 and 3 and furnished no reasons for convicting the accused on these counts. At least insofar as count 3 is concerned it seems clear that there is insufficient evidence to support a conviction. At best for the state the evidence is that the accused placed his hands on the thighs of the complainant.

[15] This brings me to the first and also the final question which is whether the state succeeded in establishing the guilt of the appellant beyond reasonable doubt. The evidence of the appellant is that of a denial that he was ever involved in any of the incidents, for he was working at the time. Such cross-examination that did take place was largely ineffective. He was not even cross-examined to establish whether he admitted being present when the complainant says that her grandmother and mother confronted the accused and his parents after the complainant had allegedly made her report to the grandmother. The regional magistrate made no credibility finding in respect of the appellant, preferring to rely on the detailed nature of the complainant's evidence. In the result it is his word against that of the complainant.

[16] In my view this is a case where on a proper application of the cautionary rules, the weight of the evidence is insufficient to establish the appellant's guilt beyond reasonable doubt. This is a case where, in the absence of corroboration of the complainant's evidence.

her evidence is insufficient to reduce substantially the risk of wrongly relying on evidence.

[17] In the result the appeal succeeds and the convictions and sentence are set aside.

R B CLEAVER

JAKUJA, AJ

I agree.

N R JAKUJA

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