Recent Case: Law of evidence

• Date: 06 July 2020
• Citation: (2020) 33 SACJ 239
• Published date: 06 July 2020
• Pages: 239-256
• Author: Whitear, N.

Law of evidence

NICCI WHITEAR

University of KwaZulu-Natal

1 Introduction

In the case of S v Vilakazi 2009 (1) SACR 552 (SCA), the Supreme Court of

Appeal observed that the cri me of rape was notoriously under-reported

and that it was also notorious that relatively few offenders were caught

and convicted. This is all t he more so with child rape and related crimes,

which have become an epidemic in South Afr ica. Indeed, in 2007 scholars

S Cox, G Andrade, D Lungelow, W Schloetelburg and H Rode published

an article entitled, ‘T he child rape epidemic’ (2007) 97 SA Med J 950

where they commented that in the period of the st udy, the number

and severity of the offences were increasing year on year, and 79%

of the perpetrators were known to the chi ld victim, with 58% of the

incidents happening in the child’s own home. In the case of Director

of Public Prosecutions, North Gauteng v T habethe 2011 (2) SACR 567

(SCA), the Supreme Court of Appeal also observed that the emergence

of a trend of rapes involving young children was becoming endemic in

South Africa. In t he case of S v Skepe 2019 (2) SACR 349 (ECP) the court

acknowledged the difculties in prosec uting the crime of rape and it

was again acknowledged that child rape was widespread.

The importance and gr avity of the problem are underscored by this

edition of the Law of Evidence Case Reviews that is dominated by

cases relating to child witnesses.

2 Practical steps to protect child witnesses from

secondary victimisation

In S v M 2020 (1) SACR 241 (WCC) the court observed that the

epidemic of child rape in South A frica had not abated. In this case, t he

court went further t han simply decrying the di fculty of successful ly

prosecuting child rape, by saying that the secondar y victimi sation of

the complainant must also be avoided. It provided specic practical

guidance as to how this might be achieved. W hat follows is a discussion

of this very import ant case.

The appellant had been convicted in a magist rates’ court of attempted

rape and was sentenced to eight years imprisonment. The complainant

was the appellant’s 11-year-old biological daughter. She had commenced

her evidence via CCTV but soon therea fter became distr aught and

could not continue. The case was then postponed. T hereafter it was

Recent Cases 239

(2020) 33 SACJ 239

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postponed for a further t wenty times. Eventually, the complainant’s

mother refused to assist in gett ing the complainant to court. Wh ile the

trial was continuing, the complainant spent ti me in the presence of the

accused at her mother’s house. The complainant never completed her

evidence in chief and was not cross-exam ined. However, the evidence

of the rst report of rape, and th at of the medical practitioner who

completed the J-88 form, together with unchal lenged evidence that

the appellant’s DNA was found on the complainant’s underwear, was

sufcient to establish a pr ima fa cie c ase for the prosecution, albeit

based on circumstant ial evidence. The appellant did not testif y and

conceded that the complainant had been sexually a ssaulted. The

sta te’s pr ima facie case, therefore, hardened into conclusive proof of

guilt, and the appellant was correct ly convicted. His appeal against

conviction and sentence therefore failed.

The court then proceeded to comment on the signi cant extent to

which the crimin al justice system had failed the complainant. T he

court set out the statutes, policies and procedures wh ich are in place to

protect the interests of the chi ld complainant and to avoid or minimise,

as far as possible, the secondary victi misation of the complainant by the

criminal ju stice system. First, there is the Constit ution which mandates

that the best interests of the ch ild are paramount in s 2 8(2). Then

there is the Children’s Act 38 of 2005 and the Cr iminal Law (Sexual

Offences and Related Matters) Amendment Act 32 of 2007. Finally,

there is the Department of Just ice and Constitutional Development’s

‘National Policy Framework Management of Sexual Offences Matters’

(2012) (at pa ras [58]–[72]). The court was aghast at t he manner in

which the complainant was subjected to the gri nding effects of the

criminal ju stice system despite the legislative framework, and policy

guidelines pu rporti ng to alleviate th is.

The court commented that the complain ant’s evidence was never

completed and so each one of her appearances in court was an exercise

in futility a nd served no good purpose. The cour t said:

One can only imagine what each attendance at court required of this child.

Not only would she have been compelled to re-live the assault on each

occasion in preparing herself to give evidence on each occasion, but she

would also have endured the hardships of getting to court, utilising the

public transport system and then waiting to give her evidence of her assault

(at para [51]).

The court was also sympathet ic to the plight of the child’s mother,

saying that she would ‘likely have had to be away from her work

and that the complainant would have had to have absented herself

from school’. The court observed that it was ‘small wonder that the

complainant’s mother eventually refused to co- operate and failed

240 SACJ . (2020) 1

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