S v M

• Jurisdiction: South Africa
• Citation: 2020 (1) SACR 241 (WCC)

S v M
2020 (1) SACR 241 (WCC)

2020 (1) SACR 241

Citation	2020 (1) SACR 241 (WCC)
Case No	A 343/2018
Court	Western Cape Division, Cape Town
Judge	Samela J and Seale AJ
Heard	December 7, 2018
Judgment	May 14, 2019
Counsel	Counsel details not supplied

Flynote : Sleutelwoorde

Sexual offences — Victims — Child victims — Treatment of by court and social welfare — Steps needed to be taken to protect child victims from secondary trauma — Implementation required of provisions of National Policy Framework Management of Sexual Offence Matters of June 2012 — Child victim in present case subjected to unnecessary trauma, inter alia, by more than 20 postponements of trial.

Headnote : Kopnota

The appellant was convicted in a magistrates' 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 after a while became distraught and could not continue. The case then had to be postponed, as it would be on another 20 occasions for different reasons. She never completed her evidence-in-chief and was not cross-examined. The court could therefore not take her evidence into consideration and had to rely on the evidence of the first reporter; the medical practitioner who completed the J88 form after examining the complainant; and the DNA evidence which revealed the presence of the appellant's DNA in the complainant's underwear. The appellant did not

2020 (1) SACR p242

testify, despite the said DNA evidence and the complainant's injuries, establishing that she had been sexually assaulted. He appealed against his conviction and sentence.

The court dismissed the appeal on the merits in respect of the conviction, and found no reason to interfere with the sentence imposed on the appellant. The court then proceeded to comment on the significant failure by the criminal-justice system to provide proper care for the complainant, care which it was required by law to provide, so as to avoid as far as possible secondary trauma being occasioned to the victim. (See [55].) It pointed to the statutes and procedures which were required to be put in place and implemented, to ensure that child victims of crime were treated in such a manner as to reduce, as far as possible, the occurrence of secondary trauma to the victim during the trial of the perpetrator. It held that events such as the delays and repeated postponements in the present case should not be permitted, and everything that could be done should be done to reduce the anxiety and stress that accompanied the giving of evidence at a criminal trial. There was a positive obligation on those involved to take active steps to assist the complainant in matters of the present nature. (See [70] – [71].) These steps had been set out in the National Policy Framework Management of Sexual Offence Matters, 2012. The court further pointed out numerous steps that could be taken, both at court level and at the social-welfare level, to achieve the objectives of the National Policy Framework. (See [76] – [88].)

Cases cited

Director of Public Prosecutions, Eastern Cape Division, Grahamstown v Yoyo [2018] ZASCA 21: compared

Director of Public Prosecutions, Gauteng Division, Pretoria v Heunis2017 (2) SACR 603 (SCA): dicta in paras [18] – [19] applied

Director of Public Prosecutions, North Gauteng v Thabethe2011 (2) SACR 567 (SCA) ([2011] ZASCA 186): referred to

Director of Public Prosecutions, Transvaal v Minister of Justice and Constitutional Development and Others2009 (2) SACR 130 (CC) (2009 (4) SA 222; 2009 (7) BCLR 637; [2009] ZACC 8): considered

R v Dhlumayo and Another1948 (2) SA 677 (A): applied

S v Abrahams2002 (1) SACR 116 (SCA): applied

S v Boesak 2000 (1) SACR 633 (SCA) (2000 (3) SA 381; [2000] ZASCA 24): dictum in para 46 applied

S v Madiba2015 (1) SACR 485 (SCA) ([2014] ZASCA 13): compared

S v Mkhatshwa2015 JDR 1104 (GP): compared

S v Mthethwa [2017] ZAWCHC 28: applied

S v Nduna2011 (1) SACR 115 (SCA) ([2010] ZASCA 120): applied

S v Nkosi2014 (2) SACR 525 (GP): compared

S v PB2013 (2) SACR 533 (SCA) ([2012] ZASCA 154): referred to

S v Pillay1977 (4) SA 531 (A): referred to

S v Raletsapo WCC A 248/14: applied

S v Vilakazi2009 (1) SACR 552 (SCA) (2012 (6) SA 353; [2008] 4 All SA 396; [2008] ZASCA 87): referred to

Teddy Bear Clinic for Abused Children and Another v Minister of Justice and Constitutional Development and Another2014 (1) SACR 327 (CC) (2014 (2) SA 168; 2013 (12) BCLR 1429; [2013] ZACC 35): referred to.

Case Information

An appeal against a convictionfor rape and sentence in a magistrates' court.

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Order

Re: the appeal

(a)

The appeal against both the conviction and the sentence is dismissed.

Re: remedial steps to be taken regarding child victims

(b)

The head of the Department of Social Development, Western Cape Province, shall:

(1)

Ensure that a qualified social worker is appointed to provide trauma-counselling for the complainant; and

(2)

monitor such trauma-counselling and report back to this court, in writing, to my learned brother Samela J within six weeks of this order to confirm that the counselling has commenced, and on the progress being made in such counselling.

(c)

A copy of this judgment and order shall be delivered to the following persons:

(1)

The Director-General: Justice and Constitutional Development;

(2)

the National Commissioner of the South African Police Service;

(3)

the Director-General: Social Development;

(4)

the Director-General: Health;

(5)

the National Director of Public Prosecutions;

(6)

the chief magistrate, Wynberg Magistrates' Court; and

(7)

the chief prosecutor, Wynberg Regional Court.

Judgment

Seale AJ (Samela J concurring):

The charges

[1] The appellant was charged with the contravention of s 3 read with ss 1, 55, 56(1), 57, 58, 59, 60 and 61 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (Sexual Offences Act), read with ss 256, 257 and 281 of the Criminal Procedure Act 51 of 1977 (the CPA), the provisions of s 51, sch 2 to the Criminal Law Amendment Act 105 of 1997, as amended by the Criminal Law (Sentencing) Amendment Act 38 of 2007, as well as ss 92(2) and 94 of the CPA, sch 2 part I.

[2] In short, the accused was charged with the rape of his 11-year-old daughter. He was convicted of attempted rape, a competent verdict in terms of s 51(1) of the CPA, and he was sentenced to a term of eight years' direct imprisonment.

[3] The appellant appeals to this court against both the conviction and the sentence, with the leave of the court a quo.

[4] In order to protect the complainant, the name of her father has been removed from this judgment, as it will become a public document.

The trial

[5] After the charges were put to him, the appellant, who was represented throughout the trial proceedings, pleaded not guilty and denied

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Seale AJ (Samela J concurring)

all of the elements of the charge brought against him. Subsequently, however, the appellant formally admitted that the complainant is his biological daughter and that she was 11 years of age at the time. He made further formal admissions concerning the DNA evidence during the trial.

[6] The state called and led the evidence of three witnesses:

[6.1]

the complainant;

[6.2]

Ms E, the 'first reporter', who is a teacher at the complainant's school and who has known the complainant for several years; and

[6.3]

Dr Ashaman Narula who is a qualified medical doctor practising as a clinical forensic medical practitioner at the Heideveld Thuthuzela Centre.

[7] The state also presented, inter alia, the following documentary evidence which was admitted by the appellant:

[7.1]

The 'Report by Authorised Medical Practitioner' completed by Dr Narula;

[7.2]

the affidavit in terms of s 212 of the CPA in respect of DNA-testing carried out on material found in the complainant's undergarment; and

[7.3]

forensic evidence in the form of DNA results and the chain-of- evidence affidavits;

[8] At the close of the state's case, the appellant elected to exercise his right to silence, gave no evidence and did not call any witnesses.

The facts

[9] The complainant gave evidence via CCTV at the commencement of the trial, on 24 May 2017. After a few minutes of evidence, however, she became too emotionally upset to continue, and the matter was adjourned in order to give her time to compose herself. Later that day, as she was still unable to testify, the matter was postponed.

[10] The complainant attended court at the next hearing but was not afforded the opportunity to complete her evidence, as the matter was postponed at the request of the accused, on the grounds that he was ill. The trial was thereafter repeatedly postponed for various reasons. Ultimately, the matter came before court on more than 20 occasions. I deal with the repeated postponements of the trial in another context hereinbelow.

[11] It subsequently emerged that the complainant's mother was either unwilling or unable to ensure her daughter's return to court and, as a consequence of her young age and her dependence on her mother's assistance in this regard, the complainant never completed her evidence-in-chief and was never cross-examined.

[12] For obvious reasons, these events could have occasioned a significant failure to achieve justice for the complainant. An important consequence of her not completing her evidence was that the court a quo could not, and did not, consider any of her evidence in determining the

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Seale AJ (Samela J concurring)

guilt of the appellant. The matter was therefore decided without reference to the complainant's evidence.

[13] Ms E, the first reporter, gave...