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　　IN

　　THE HIGH COURT OF SOUTH AFRICA

　　(GAUTENG

　　DIVISION, PRETORIA)

　　(1)         

　　REPORTABLE:  YES

　　/ NO

　　(2)         

　　OF INTEREST TO OTHER JUDGES: YES

　　/ NO

　　(3)         

　　REVISED

　　3-2-2021

　　CASE

　　NO: RC2/135/2015

　　APPEAL

　　CASE NO: A372/2017

　　 

　　 

　　In

　　the matter between:

　　GIDEON

　　LESESE

　　Appellant  

　　and

　　 

　　THE STATE

　　Respondent

　　 

　　Coram: Avvakoumides AJ and

　　J.E. Dlamini AJ

　　JUDGMENT

　　 

　　AVVAKOUMIDES

　　AJ

　　 

　　1.        The appellant was

　　convicted on 27 February 2017 in the Regional Court at Springs of

　　a

　　contravention of section 3 of the Sexual Offences Act, 2007 (Act 32

　　of 2007), namely, committing an act of sexual penetration

　　with a

　　female person, R[....] M[....], a 5-year-old girl at the time. 

　　On 18 May 2017, the appellant was sentenced to life

　　imprisonment by

　　the Regional Magistrate.

　　2.        The appeal lies against

　　both the conviction and the sentence.  The appellant

　　submitted

　　that the Regional Magistrate committed an irregularity in admonishing

　　the complainant to tell the truth without conducting

　　the necessary

　　investigation as to whether the complainant understood the difference

　　between the truth and a lie together with ensuring

　　whether the

　　complainant understood the dangers inherent in telling lies. The

　　complainant was not warned to tell the whole truth. 

　　This is

　　common cause in the record and the respondent conceded that this was

　　indeed the position. 

　　3.        In S v L 1973 SA (1) 344

　　(K), the Court of Appeal (Van Winsen & Van Heerden JJ)

　　held that

　　if the judicial officer is not convinced that a juvenile has the

　　ability to distinguish between the truth and a lie,

　　the juvenile is

　　not competent to give evidence. It is therefore the judicial

　　officer’s duty to enquire into the juvenile’s

　　standard of

　　intelligence in order to ascertain whether he can draw a distinction

　　between the truth and a lie and whether he understands

　　the dangers of

　　telling lies.  In S v T (A) at 794 C - D the

　　full court (Botha JA, Holmes JA and Muller JA) held, inter alia, that

　　the trial court must be convinced that

　　the complainant had the

　　ability to tell the difference between the truth and a false-hood.

　　4.        The appellant submitted

　　that the State’s case against him was primarily based

　　on the

　　evidence of a single witness, namely that of the complainant and

　　although the Regional Magistrate made mention in the judgment

　　of the

　　complainant being a single witness, it is not clear from the record

　　whether the Regional Magistrate in fact acquainted herself

　　with the

　　cautionary rule and applied such rule. Consequently, the appellant

　　argued that this constitutes a serious irregularity

　　which justifies

　　setting aside the proceedings. 

　　5.        In S v Sauls and Others

　　1981 SA (3) at 179G-H the court took cognisance of the well-known

　　passage from the judgment of De Villiers JP in R v Mokoena at 80 in which it was stated that “the uncorroborated

　　evidence of a single competent and credible witness is no doubt

　　declared to be sufficient for a conviction by

　　s284 of Act 31 of 1917,

　　but in my opinion that section should only be relied on where the

　　evidence of the single witness is clear

　　and satisfactory in every

　　material respect”.

　　6.        The appellant argued

　　that the Regional Magistrate did not make any mention whatsoever

　　in

　　her judgment, that she had considered or found that the complainant’s

　　evidence was clear and satisfactory in all material

　　respects. 

　　In support hereof the appellant submitted that the evidence of the

　　complainant is not clear as to what sexual act

　　was committed upon her

　　and how the sexual act was perpetrated. 

　　7.        The record shows that

　　the evidence of the complainant was that: “My daddy put his

　　goggo on my vagina”. The record does

　　not show that there was any penetration whatsoever. The prosecutor in

　　the trial clouded this issue by asking the

　　complainant: “when

　　your daddy put the goggo in your vagina did you

　　feel any pain”. The Regional Magistrate in her judgment

　　referred to this evidence by stating that: “She testified

　　that her father held his goggo in his hand and put it on

　　her vagina”.

　　8.        The appellant submitted,

　　and this is borne out by the record, there is absolutely

　　no

　　indication in which way the sexual act, if any, was perpetrated. The

　　complainant testified that she was sleeping on the bed,

　　lying down

　　and the appellant was standing next to the bed when he put his

　　“goggo” on her vagina.  There was some

　　demonstration with dolls, but nothing thereof was placed on record.

　　The evidence showed that

　　both the complainant and the accused and the

　　appellant were fully clothed at that stage.

　　9.        This notwithstanding,

　　the Regional Magistrate, in her judgment, stated that: “The

　　fact that she said they were fully dressed cannot mean that sexual

　　intercourse did not happen. Who said people must always undress

　　for

　　sexual intercourse to take place?”. The appellant argued

　　that the State would have had to show, at least, how the sexual

　　assault took place. The appellant submitted

　　that the State would have

　　at least to have shown that the complainant’s underwear had

　　been pulled down or aside particularly

　　in the light of her evidence

　　that the appellant had put his “goggo” on

　　her vagina.

　　10.     The appellant argued that although there

　　is no general cautionary rule regarding the evidence of complainants

　　in sexual offences, the Regional Magistrate erred by losing sight of

　　the fact that the circumstances in this case were of such

　　a nature

　　that it required a cautious approach towards the complainant’s

　　evidence. It was put to the complainant by the defence

　　that she was

　　told by her mother to come and say that her father sexually assaulted

　　her, and she replied in the affirmative.

　　11.     Furthermore, so the appellant argued, it

　　is improbable that her father would rape the complainant inside

　　the

　　house whilst her mother was just outside busy doing the washing. The

　　appellant further argued that the Regional Magistrate

　　erred in

　　finding that the complainant was a reliable witness and failed to

　　appreciate and carefully consider the unsatisfactory

　　aspects in the

　　complainant’s evidence.  For example, when the complainant

　　was asked in court where the “goggo” is, she

　　showed her left hand.

　　12.     The appellant argued further that the

　　Regional Magistrate failed to take note and attach appropriate

　　weight

　　to the serious contradiction and discrepancy between the evidence of

　　the complainant and her mother, relating to whether

　　the complainant

　　had reported the sexual assault to her mother.  According to the

　　complainant she reported the assault to her

　　mother after the

　　appellant had left the house, whilst the mother testified that the

　　complainant never reported it.

　　13.     The appellant argued that the Regional

　　Magistrate misdirected herself regarding the evidence led before

　　her,

　　by finding that it is not in dispute that the child was raped or

　　sexually abused during that period. In this regard the Regional

　　Magistrate misdirected herself materially by permitting a nurse,

　　Vincentia Ngobese, who did not conduct the medical examination

　　on the

　　plaintiff, to testify on the contents of the J88 medical form on the

　　findings and opinion of Dr Riester who in fact conducted

　　the medical

　　examination in terms of section 3(1)(c) of Act 45 of 1988. 

　　14.     The appellant submitted that he was

　　severely prejudiced because the correctness of the findings and

　　the

　　opinion could not be tested under cross-examination. Doctor Riester

　　had relocated abroad.  The respondent could not submit

　　any

　　reason why Dr Riester’s attendance in the Court a quo could

　　not have been secured.

　　15.     The appellant submitted that there is no

　　onus on him to convince the court that his version is true

　　and what

　　is required of him is to show that his version may be reasonably

　　possibly true and even if his conduct appears to be suspicious,

　　he

　　would still have the benefit of the doubt even if his version appears

　　improbable.  See: S v Munyai (V) at 714 J - 715

　　G and S v Ipeleng (T) at 189 a – b.

　　16.     The appellant submitted that it is

　　significant to note that the trial court did not find that the

　　appellant and his witnesses were unsatisfactory witnesses either

　　resultant from their conduct in the witness box or the nature and

　　content of their evidence. All questions posed to the appellant and

　　his witnesses were answered satisfactorily and no questions

　　were

　　evaded, and his version could not be branded as intrinsically

　　improbable.  Consequently, the appellant argued that it

　　could

　　not be found that the appellant’s denial is beyond reasonable

　　doubt, false. See: S v Artman (A) at 341B and S v

　　Malopane and Another (W).

　　17.     The trial court was essentially faced

　　with two directly conflicting versions.  Consequently, it

　　was

　　argued that the appellant’s version could only have been

　　rejected if the trial court was satisfied that such version

　　was

　　incorrect and false and not only because it appeared to be

　　improbable.  The appellant argued that the trial court was

　　not

　　entitled to convict unless it was satisfied not only that the

　　appellant’s explanation was improbable but that, beyond

　　any

　　reasonable doubt, it is false. The appellant relied on S v Mafiri

　　(SCA) at 121.

　　18.     The appellant argued further that the

　　Regional Magistrate erred by finding that the appellant was an

　　unsatisfactory witness.  The magistrate, so argued the

　　appellant, in fact misunderstood the evidence and made incorrect

　　statements

　　to the appellant when she questioned him. The Regional

　　Magistrate put to the appellant that his attorney had submitted that

　　the

　　first time the appellant heard about the rape was from Inspector

　　Shai. Regard being had to the record; this statement is incorrect. 

　　19.     The appellant testified that he had heard

　　for the first time from Inspector Shai that there was a case

　　of rape

　　against him. This is borne out by the record. The Appellant argued

　　that the Regional Magistrate then, having misunderstood

　　the evidence,

　　found that the appellant had contradicted himself and wrongly

　　rejected his evidence.  The Regional Magistrate

　　went further to

　　find that there are inherent improbabilities in the evidence of the

　　appellant without identifying or evaluating

　　any improbabilities at

　　all. Thus, the appellant argued that the Regional Magistrate

　　misdirected herself in this regard and relied

　　on S v M (SCA), as authority. 

　　20.     Of concern is that the learned

　　magistrate, on at least two occasions, curtailed the

　　cross-examination

　　by the defence and then put leading questions to

　　the appellant and questioned him by virtually cross-examining him.

　　The questioning

　　by the Regional Magistrate comprises some 5 pages of

　　the record and, in my view, the nature and manner of the questioning

　　certainly

　　creates the impression that the Regional Magistrate had

　　made up her mind before considering all the evidence.

　　21.     Relying on the submissions made and the

　　authorities cited, the appellant submitted that the State had

　　failed

　　to prove its case against the appellant beyond reasonable doubt and

　　the conviction should be set aside. Counsel for the

　　State did not

　　make any submissions other than that she agreed the trial court had

　　“erred in many instances”. I requested

　　both counsel to

　　provide the court with a timeline of events.  The timeline is as

　　follows:

　　21.1         In December

　　2014, the complainant’s mother noticed that something was

　　wrong

　　with her daughter. She was losing weight and had suffered nightmares.

　　 The complainant’s mother went on holiday

　　with her

　　children and family in December 2014.

　　21.2         On 19 February

　　2015, the complainant was taken to Dr A H Karim.  There

　　was no

　　complaint of any sexual molestation and the complainant complained of

　　abdominal pain and vomiting.  She was treated

　　for a urinary

　　tract infection. Dr Karim’s report does not contain any mention

　　of sexual molestation or assault or any findings

　　thereof.

　　21.3         On 14 March

　　2015, the complainant was taken to Dr A Mahomed and she complained

　　of

　　vaginal discharge. She was treated for infection. Dr Mahomed’s

　　report does not contain any mention of sexual molestation

　　or assault

　　or any findings thereof.

　　21.4         On 17 March 2015

　　the complainant was seen and examined by Dr Riester. Dr Riester

　　is

　　the doctor who completed the J88 medical form and had relocated to

　　Germany. Dr Riester found bruises on the complainant’s

　　inner

　　thigh which may heal in 3 days. I reiterate that she did not testify

　　neither did the State to make any effort to secure her

　　attendance at

　　the trial. 

　　21.5         On 3 July 2015

　　the complainant was seen by a social worker Zandile Vilakazi.

　　21.6         On 17 July 2015

　　the complainant’s mother stated that she had heard of

　　the

　　molestation for the first time on that day. The record shows that Ms

　　Vilakazi had asked the complainant questions about the

　　alleged

　　incident.

　　21.7     On 10 November 2015 the appellant

　　appeared for the first time in court. 

　　22.        In wishing to rely upon

　　the J88 form the respondent made application in terms of

　　section 3

　　(1) (c) of Act 45 of 1988 to lead the evidence of Ms Vincentia

　　Ngobese. As I have stated the form was completed and signed

　　by Dr

　　Riester who conducted the medical examination. The State submitted

　　that the factors to be taken into account in order to

　　allow the

　　evidence of Ms Ngobese are the following:

　　22.1      The nature of the proceedings –

　　in this regard the State submitted that this is a criminal

　　case where

　　the court has wide discretion when it comes to admit hearsay

　　evidence. The State relied on Sv Mpofo at 115C-D.

　　22.2      The nature of the evidence –

　　the State submitted that the evidence sought to be led is

　　oral

　　evidence accompanied by the J88 for that was completed by Dr Riester

　　and that Dr Riester had relocated to Germany.

　　22.3     The purpose of the evidence – the

　　State submitted that the purpose of tendering the hearsay

　　evidence is

　　to prove the injuries sustained by the complainant.

　　22.4      The probative value of the

　　evidence – the State submitted that the probative value of

　　the

　　evidence is “high”, because the source of the

　　hearsay evidence is direct evidence from the doctor who examined the

　　child.

　　22.5      

　　The absence of the person whose evidence is sought to be led –

　　“the reason why the person whose credibility to probate the

　　value of the statement depends on does not testify is that he has

　　relocated

　　to another country” (sic).

　　23.         In argument the

　　State submitted that the accused will not suffer any prejudice

　　because in S v Ndlovu and Others (SCA), the court

　　held that:

　　“The prejudice in section 31

　　(c) clearly means procedural prejudice to the party against whom the

　　hearsay evidence is tendered”.

　　24.         The State

　　submitted further that it had laid the basis for Ms Ngobese to

　　testify

　　on hearsay evidence in respect of the J88 completed by Dr

　　Riester who was no longer in the employ of the Boksburg Clinic. The

　　accused’s

　　representative objected to the admissibility of this

　　evidence and submitted that the State had not shown whether any

　　efforts to

　　secure Dr Riester’s attendance at trial. The

　　accused’s representative submitted that the accused would

　　suffer procedural

　　prejudice in that he would not be able to defend

　　himself against the contents of the J88 form if the author thereof

　　was not going

　　to testify on such document.

　　25.           

　　The trial court, in ruling that the J88 form could be admitted

　　into

　　evidence and that Ms Ngobese could testify on the findings on the J88

　　form, held that there is compelling justification for

　　admitting the

　　evidence of Ms Ngobese because Dr Riester has relocated to Germany.

　　The trial court held further that, taking into

　　account that the

　　accused’s defence is that he did not commit the crime as

　　charged, “the court does not found (sic) that the

　　accused will be prejudiced in any way.” The court held that

　　it is in the interests of justice that the evidence be permitted.

　　26.           

　　In Ndlovu supra, the Supreme Court of Appeal held that a trial

　　court,

　　in applying the hearsay provisions of the Act, must be scrupulous to

　　ensure respect for the accused’s fundamental

　　right to a fair

　　trial. Safeguards, including the following, are important:

　　26.1      

　　Firstly, a presiding officer is generally under a duty to prevent a

　　witness heedlessly

　　giving vent to hearsay evidence. More

　　specifically, under the Act, it is the duty of a trial judge to keep

　　inadmissible evidence

　　out, and not to listen passively as the record

　　is turned into a papery sump of “evidence”.

　　26.2      

　　Secondly, the Act cannot be applied against an unrepresented accused

　　to whom significance

　　of its provisions have not been explained.

　　26.3      

　　Thirdly, an accused cannot be ambushed by the late of unheralded

　　admission of hearsay evidence.

　　The trial court must be asked clearly

　　and timeously to consider and rule on its admissibility. This cannot

　　be done for the first

　　time at the end of the trial, nor in argument,

　　still less in the court’s judgment, nor on appeal. 

　　Furthermore, the

　　Supreme Court of Appeal held that a further

　　consideration bearing on the constitutionality of the statement is

　　that a decision

　　on the admissibility of evidence is, in general, one

　　of law, not discretion, and a court on appeal is, in general entitled

　　to overrule

　　such a decision by a lower court if it considers it

　　wrong.

　　27.        Notwithstanding my view

　　that the trail court erred in permitting the hearsay evidence,

　　and

　　despite the conclusions contained in the J88 form, the State failed

　　to prove that the Appellant who is guilty of the charges

　　against him.

　　This brings me to the conclusions reached in the J88 medical form. I

　　quote: “The conclusions show that the complainant’s

　　hymen is irregular, redundant posterior edge, cleft at 06, wide

　　vaginal opening.

　　Findings point to frequent episodes of vaginal

　　penetration by object such a finger or penis.”

　　28.       

　　During debate, both counsel agreed that in the light of the

　　conclusions reached in

　　the J88 medical form, despite the legal

　　technicalities in regard thereto, the child was indeed molested.

　　Regretful as it may be

　　that a child of such tender age be subjected

　　to the most despicable abuse, I cannot in good conscience, ignore the

　　fact that the

　　State did not discharge the onus resting upon it.

　　Accordingly, the appeal must succeed.  

　　29.           

　　I make the following order:

　　29.1           

　　The appeal against the conviction is upheld and the sentence

　　is set

　　aside.

　　29.2           

　　The order declaring the appellant unfit to possess a firearm

　　in terms

　　of section 103 of Act No. 60 of 2000, be set aside.

　　29.3           

　　The order in terms of section 50(2) of Act 32 of 2007 requiring

　　that

　　the name of the appellant be entered into the National Register for

　　Sex Offenders and that, in terms of section 120(4) of

　　Act 38 of 2005,

　　the appellant is unsuitable to work with children, is set aside. The

　　name of the appellant must be deleted from

　　the National Register

　　forthwith.

　　29.4      

　　The Registrar of this court is directed to notify the prison

　　authorities, where the Appellant

　　is currently held, of this judgment

　　and to provide such authorities with a copy of the judgment. The

　　Appellant must be released

　　forthwith.

　　 

　　G.T.

　　AVVAKOUMIDES

　　ACTING

　　JUDGE OF THE HIGH COURT

　　GAUTENG

　　DIVISION, PRETORIA

　　 

　　 

　　I

　　agree

　　 

　　 

　　J.E.

　　DLAMINI

　　ACTING

　　JUDGE OF THE HIGH COURT

　　GAUTENG

　　DIVISION, PRETORIA

　　 

　　 

　　DATE

　　OF HEARING            

　　:  26 AUGUST 2020

　　DATE

　　OF JUDGMENT         : 03

　　FEBRUARY 2021

　　Representation

　　for parties:

　　 

　　On behalf

　　of Appellant                             

　　M. Kilian

　　 

　　Instructed

　　by                                             

　　Henk Hoffman Attorneys

　　 

　　On behalf

　　of the State                              

　　JMB Rangaka

　　 

　　Instructed

　　by                                            

　　National Prosecuting Authority