IN THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE HIGH COURT, CAPE TOWN)

CASE NO: A746/10

In the matter between:

and

JUDGMENT HANDED DOWN ON     SEPTEMBER 2011
1. The appellant was charged in the Oudtshoorn Regional Court on two counts of rape. The first count was a charge of rape under the common law wherein it was alleged that the appellant raped the complainant, D, on (or between) 2003 and 2007. D was then between the ages of 6 and 10 years. The second charge of rape was framed in terms of section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, (the Sexual Offences Act) and alleged that the appellant raped D during 2008. D was then 10 years old.

3. In respect of both counts the State relied upon the provisions of sections 51 and 52 as well as schedule 2 to the Criminal Law Amendment Act, 105 of 1997, (the Minimum Sentence Act) which provides for the imposition of a life sentence in respect of the rape of a minor.
4. The learned magistrate convicted the appellant on both counts and sentenced him to 10 years imprisonment in respect of the first count, and 15 years imprisonment in respect of the second count. An effective sentence of 25 years imprisonment.
5. It is not in dispute that section 51(1) of the Minimum Sentence Act found application and that the appellant was properly warned of its application at the commencement of the proceedings.
6. The appellant appeals against both the convictions and sentences.
7. The evidence of D was adduced with the assistance of an intermediary as contemplated by section 170A of the Criminal Procedure Act. D testified that the appellant and her late mother were in a relationship and living together before her mother passed away late in 2008. To all intents and purposes the appellant was her stepfather. She testified that the appellant had initially molested her by improperly touching her. He thereafter raped her for the first time whilst they were still living at Kloof Avenue, Nepin, Oudtshoorn. Her recollection of that rape was clear and vivid. It is clear from her evidence that she was thereafter raped on innumerable occasions. She never raised the alarm as the appellant had threatened to kill her should she do so. She also testified that the appellant assaulted her at the same time when he would assault her mother. They later moved to Weyers Avenue (the charge sheet, however, still refers to Kloof Street).
8. She testified that her mother trusted the appellant and despite the fact that she had conveyed that she did not wish to be left alone with the appellant, her mother did not question her about this.
9. In cross-examination D testified that when her mother fell ill she spent approximately three months in bed. During this period the appellant raped D in the kitchen. It is clear from the evidence that her mother must have died in November 2008 as D was taken to the doctor by her aunt two weeks after she attended the funeral. At this stage she was living with her aunt and had developed a bladder infection. Her aunt questioned her about the infection and she eventually came out with the truth, namely that the appellant had been raping her. She was examined under general anaesthetic which confirmed that there were tears to her hymen, which were consistent with sexual intercourse.
10. The evidence of D was confirmed by the evidence of her aunt, the medical evidence contained in the J88, the evidence of Dr Genis and, in respect of non-contentious issues, by that of the appellant and his mother.
11 I pause to point out that the evidence of Dr Genis was, of course, hearsay evidence, as he, though present, did not do the examination. He merely noted what the examiner, Dr Laubscher, conveyed to him. There is no explanation as to why Dr Laubscher was not called. The appellant, however, did not seriously challenge any of the evidence of Dr Genis.

"In my view, 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"

"In view of the nature of the charges and the ages of the complainants it is well to remind oneself at the outset that, whilst there is no statutory reguirement that a child's evidence must be corroborated, it has long been accepted that the evidence of young children should be treated with caution (R v Manda 1951 (3) SA 158 (A) at 163C, Woji v Santam Insurance Co Ltd 1981 (1) SA 120 (A) at 128B-D); and that the evidence in a particular case involving sexual misconduct may call for a cautionary approach (S v J 1998 (2) SA 984 (SCA) at 109B). For reasons which will presently emerge the present case is plainly one which calls for caution."

62. This principle does not preclude pre-trial arrangements to familiarise witness with the layout of the court, the likely sequence of events when the witness is giving evidence, and a balanced appraisal of the different responsibilities of the various participants. Indeed such arrangements, usually in the form of a pre-trial visit to the court, are generally to be welcomed. Witnesses should not be disadvantaged by ignorance of the process, nor when they come to give evidence, taken by surprise at the way it works. None of this however involves discussions about proposed or intended evidence. Sensible preparation for the experience of giving evidence, which assists the witness to give of his or her best at the forthcoming trial is permissible. Such experience can also be provided by out of court familiarisation techniques. The process may improve the manner in which the witness gives evidence by, for example, reducing the nervous tension arising from inexperience of the process. Nevertheless the evidence remains the witness's own uncontaminated evidence. Equally, the principle does not prohibit training of expert and similar witnesses in, for example, the technique of giving comprehensive evidence of a specialist kind to a jury, both during evidence-in-chief and in cross-examination, and, another example, developing the ability to resist the inevitable pressure of going further in evidence than matters covered by the witnesses' specific expertise. The critical feature of training of this kind is that it should not be arranged in the context of nor related to any forthcoming trial, and it can therefore have no impact whatever on it."

"64. This familiarisation process should normally be supervised or conducted by a solicitor or barrister, or someone who is responsible to a solicitor or barrister with experience of the criminal justice process, and preferably by an organisation accredited for the purpose by the Bar Council and Law Society. None of those involved should have any personal knowledge of the matters in issue. Records should be maintained of all those present and the identity of those responsible for the familiarisation process, whenever it takes place. The programme should be retained, together with all the written material (or appropriate copies) used during the familiarisation sessions. None of the material should bear any similarity whatever to the issues in the criminal proceedings to be attended by the witnesses, and nothing in it should play on or trigger the witness's recollection of events....

65. All documents used in the process should be retained, and if relevant to prosecution witnesses, handed to the Crown Prosecution Service as a matter of course, and in relation to defence witnesses, produced to the court. None should be destroyed. It should be a matter of professional obligation for barristers and solicitors involved in these processes, or indeed the trial itself, to see that this guidance is followed."

18. To the extent that there might have been reason to argue that the complainant's evidence had been contaminated to an extent any such contamination could, in any event, not have been at the instance of the intermediary. She had testified that she had no prior involvement in the case, and did not know D.
19. The learned magistrate gave careful consideration to the appellant's version, enquired whether the complainant, D, had a motive to falsely implicate him, whether her aunt similarly had such a motive, as well as the cicumstances under which the complainant, D, related the rapes to her aunt. He found confirmation of her complaints in the medical evidence. He correctly, in my view, came to the conclusion that he could not find that D's evidence was either untruthful or a recent fabrication.
20. The evidence, in my view, established beyond doubt that the appellant had raped D over a period of time, which time period covered both the period before 16 December 2007 when the common law crime of rape was applicable, and the period thereafter when section 3 of Sexual Offences Act found application. As a result of the codification of the crime, the appellant was charged with a contravention of the common law crime of rape, as well as a contravention of section 3 of the Act, on diverse occasions. Put differently to have charged him separately under both the common law for rape and under the Sexual Offences Act, may, in the circumstances, have amounted to a splitting of charges. There is, however, a more substantial problem.
21. The charge sheet in respect of the first count, common law rape, alleged a single rape, and beyond stating that the rape had occurred between 2003 and 2007, did not further particularise the offence.

22. Though no objection was raised to the charge sheet it would seem to me that the fairness of the trial was materially prejudiced by the evidence which was led that he had committed the offence on diverse occasions, in conflict with the charge of a single charge of rape.

"[9] It is most unsatisfactory that too frequently sufficient care is not paid to the appropriate formulation of the charge sheet, especially in serious cases where the potential sentence faced by the accused person can be of the highest severity, particularly where a multiplicity of counts is involved. Under the sentencing provisions applicable in terms of the Criminal Law Amendment Act 105 of 1997, an offender convicted of rape where the victim has been raped more than once is liable to be sentenced to life imprisonment, while a rapist convicted of a single count of rape faces a prescribed minimum sentence of 15 years.
…......

[11] The slovenly formulation of the charge sheet is potentially prejudicial not only to the accused, but also to the administration of justice.
[12] It is contrary to the basic concept of a fair trial that an accused person charged with one count of a particular offence is confronted with evidence in respect of a number of incidents and is thereafter sentenced as if he or she had been convicted on multiple counts. Having regard to the lack of legal sophistication by most accused persons and to the regrettably all too frequently discernable lack of experience and limited skills of many of the persons appointed by the legal aid board to represent accused persons in the criminal courts, particularly in the magistrates' courts, the extent of the prejudice identified is not avoided by the existence of a right to object to and obtain the exclusion the admission of the prejudicial matter. The current matter demonstrates the point. Neither the presiding magistrate, nor the legal practitioner appointed to represent the appellant gave any indication of being astute to the divergence between the evidence led during the trial in support of numerous counts of rape and the allegation of only a single count in the charge sheet.

[14] The prejudice to an accused person in the circumstances described is illustrated by magistrate's remarks during sentencing from which it is apparent that notwithstanding the content of the charge sheet the appellant was treated for sentence purposes as having "recurrently]" raped the complainant. This was a material misdirection, to which it would have been necessary to return if the appeal against conviction had failed.
[15] The administration of justice is potentially prejudiced because the allegation of only a single count of rape in a charge sheet, where the evidence supports a multiplicity of counts, means that the properly convicted accused can be sentenced only as a single count offender. As mentioned, this is cause for particular concern in matters where the Legislature has determined that offenders convicted on multiple counts should receive prescribed higher minimum sentences. It is liable to obstruct the achievement of legislative objects in the fight against crime and to bring the criminal justice system into public disrepute.

24. Not only was the evidence led in contradiction to the charge, the appellant was also exposed to a further charge under the Sexual Offences Act. In my view the cumulative effect was that this was, in respect of the first charge, materially prejudicial to the fairness of the trial.
25. The appellant had on the evidence also raped the complainant during the period that her mother was ill in bed - i.e. during August, September and October 2008.
26. In respect of the second count unlike the first, at least a bald reference was made to section 94 of the Criminal Procedure Act. This section provides that:

"Where it is alleged that an accused on diverse occasions during any period committed an offence in respect of any particular person, the accused may be charged in one charge with the commission of that offence on diverse occasions during a stated period."

28. Despite its shortcomings, the charge in terms of the Sexual Offences Act, in my view, just passes muster. Accordingly I am of the view that it would have been proper to have convicted the appellant on the charge in terms of section 3 of the Sexual Offences Act of having raped the complainant on diverse occasions. To have also convicted him of common law rape, in terms of the first charge, as set out above, was materially prejudicial to the fairness of the trial.
29. In the premises I would set aside the conviction on count 1 and confirm the conviction in respect of count 2.

"Rape of a child is an appalling and perverse abuse of male power. It strikes a blow at the very core of our claim to be a civilised society.... The community is entitled to demand that those who perform such perverse acts of terror be adequately punished and that the punishment reflect the societal censure.

28. As is noted above, in respect of the conviction on the common law defence of rape, the learned magistrate sentenced the appellant to 10 years imprisonment. In respect of the statutory defence under section 3 of the Criminal Law (sexual offences and related matters) Amendment Act, he imposed imprisonment of 15 years. It is not clear to me upon which basis he drew this distinction. If anything, a heavier sentence ought to have been imposed on the rape of the complainant at a younger age. In my view the learned magistrate, with respect, erred in differentiating between the two convictions of rape.

30. In the premises I would make the following orders:

1.      I would set aside the conviction on count 1 and confirm the conviction in respect of count 2.
2. I would impose a sentence of 18 years imprisonment

SVEN OLIVER, AJ

I agree

A. BINNS-WARD J