Case summary: S v Dlamini 2019 (1) SACR 467 (KZP)

S v Dlamini 2019 (1) SACR 467 (KZP)

Introduction

This is an appeal in terms of s309 (1) of the Criminal Procedure Act 51 of 1977 (CPA).  The appellant was charged and convicted of the rape of a 6-year-old girl and was sentenced to life imprisonment.  He appealed against both the conviction and the sentence.

Issue to be decided

The appellant raised 2 points for appeal:

• compliance with s164 of the CPA:  the elementary questions asked by the trial court of the complainant fell short of the requirements set out in s164;
• the insufficiency of the evidence relating to the identity of the appellant and the cautionary rule applicable to the complainant.

Competency of child witness

It was argued by the appellant that, in order for the trial court to satisfy itself that the complainant, who was 8 years old when she testified, could distinguish between the truth and lies, a proper enquiry had to be held to establish her competence.  The child’s response to these questions would demonstrate whether the child was able to distinguish between truth and lies and the consequences of lying. 

Section 162 of the CPA requires that evidence be given under oath, except where s163 or s164 is applicable.  The record shows that the trial magistrate asked the complainant if she knew what it meant to take the oath.  Her response was that she did not.  There was no decision by the trial court whether she complied with s162 or not.  Nor did the trial court state that, in view of the complainant’s inability to comply with the provisions of s162, it was going to conduct an enquiry in terms of s164.

Section 164(1) of the CPA 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.”

The trial court did embark on an enquiry to admonish the complainant.  The trial court asked her a number of questions. The complainant was wearing a pink jacket and, amongst the questions asked by the trial court, was whether it was true to say that she was wearing a white jacket.  She said that would be a lie.  She was asked whether it was good to lie and she replied that it was not.  She was asked if it was a good thing to tell the truth and she agreed that it was.  She was then told that the court expected her to tell the truth about what she saw and what she heard, to which she agreed.  Following from this, she was admonished to tell the truth and her evidence was led.

The High Court was of the opinion that, in determining whether to apply the provisions of ss162, 163 and 164, there must first be an enquiry by the judicial officer to determine whether the witness understands the nature and the import of the oath. Secondly, a finding must be made from that enquiry, which would determine whether or not to admonish the witness.  The court did not follow this route, and it implemented s164 without first enquiring sufficiently into issues related to s162 and making a finding.

The question to be addressed then is whether the trial court’s failure to conduct an enquiry in terms of s162 constitutes an irregularity.  The High Court found that this did not amount to an irregularity, because the provisions of s162 provide compliance with s164 as an option.   The court, therefore, has to be satisfied that the provisions of s164 have been complied with. The High Court found that the enquiry conducted by the trial court showed sufficient compliance with the section and that the complainant was thus a competent witness and her evidence was admissible.

Application of cautionary rule

The complainant, who was 6 years old at the time of the rape, testified that on the day of the incident she went to buy snacks when an unknown person asked her to show him a place called Canaan.  She directed him, but the man asked her to accompany him.  On the way there, they walked through a forest where the man unzipped his trousers and strangled her. He then proceeded to rape her.  She was rescued by her aunt, who she heard calling her.  She could not describe the man’s height, but mentioned that he was light of complexion.  She attended a pointing-out where she pointed the accused out as the person who had raped her.  She also made a dock identification.  She could not remember her aunt asking her anything about the incident on their way home.  She could also not remember if she was asked anything about the unknown male.  Her aunt and other ladies who were in their company inspected her vagina to see if she had any injuries.  She says that she did not tell her aunt what happened to her.  After the accused was arrested, the police fetched her and her aunt.  She could not deny that the appellant was photographed at the time of his arrest and that the photographs were shown to her, and said that she did not remember.

The aunt’s evidence confirmed the events of the day.  She said that she became worried when she realised that the complainant had not returned to the house after 30 minutes, and she went out to look for her.  Since it was getting dark, she told the neighbours that the child was missing and they went looking for her.  They shouted out her name and she responded downwards from a bushy area.  As the complainant approached, she noticed that she was shaking and she kept falling down.  She asked the complainant why she was there and she relayed her encounter with the unknown man.  The complainant also told her that the unknown man had moved several times when he was on top of her.  She carried the child home on her back, where they inspected the complainant and found a swelling and some tears that indicated something had been inserted or pushed into the vagina.  The child did not complain of pain but was shaking.  She questioned the complainant, who told her that the accused was wearing white trousers and black shoes and had her father’s stature.  She then called the police.  She was present at the identity parade and witnessed the complainant pointing out the accused, who was unknown to her.  A handkerchief was found at the scene of the crime with the 50 cent coin she had given to the complainant to buy snacks.  After the incident the child was unable to control her bladder and urinates on herself. She was not present when the accused was arrested so did not know about people who had taken photos of him on their cell phones. 

Section 208 of the CPA provides that an accused may be convicted on the evidence of a single witness if the evidence given is satisfactory and given by a competent witness.  In S v Chabalala 2003 (1) SACR 134 (SCA) it was provided that, when dealing with a young single witness, the correct approach was to weigh up all the elements pointing towards the guilt of the accused against those which are indicative of their innocence, taking proper account of the inherent weaknesses, probabilities and improbabilities on both sides, and decide whether the balance weighs heavily in favour of the state. 

The High Court made the following findings:

• the complainant’s evidence that she was raped was supported by the medical evidence;
• there was no evidence led by the state to say how the appellant was identified as the perpetrator of the offence which resulted in his arrest;
• the appellant was unknown to the complainant and the only means of identification she tendered was that he was wearing white trousers and was built like her dad;
• the complainant accepted that she had seen the photographs depicting the appellant prior to attending the identity parade;
• it was worrying that, when she attended the identification parade, despite there being at least 9 people in the room, she walked straight up to the appellant without looking at the other people participating in the identification parade.

The court set out the criteria to be applied in identification cases in S v Mthetwa 1972 (3) SA 766 (A) at 768:

• there was a need for caution when dealing with evidence of identification;
• due to the fallible nature of human beings, it was not enough that the identifying witness was honest;
• the reliability of their observation must be tested;
• factors included lighting, visibility, eyesight, the proximity of the witness, their opportunity for observation both as to time and situation, the extent of their prior knowledge of the accused, mobility of the scene, corroboration, suggestibility, the accused’s face, voice, build, gait, dress, identification parade and the evidence on behalf of the accused.

In respect of dock identification, it was held in S v Mdlongwa 2010 (2) SACR 419 (SCA) that this generally carried little weight, but could not be discounted altogether.  In this case, it would have been influenced by the identification parade as well as the photographs she had seen. 

It cannot be said that the state had proved the guilt of the appellant beyond a reasonable doubt.  the decision of the magistrate was wrong and there was no evidence to link the appellant to the commission of the offence.

The appeal succeeded and the conviction and sentence were set aside