S v Visser

• Jurisdiction: South Africa
• Judge: Josman J
• Judgment Date: 13 December 2000
• Citation: 2001 (1) SACR 401 (C)
• Hearing Date: 13 December 2000
• Counsel: M Pothier for the accused. J Theron for the State.
• Court: Cape Provincial Division

Josman J:

Both accused in this matter were charged with having raped a young girl aged 14, R J, on 14 November 1998. At the time of the alleged offence the first accused was 17 years of age and the second accused was a little over 18 years of C age.

The matter came up for hearing in the regional court of Worcester on 25 February 2000. The accused were not represented and accused No 1 pleaded not guilty whilst the accused No 2 pleaded guilty. Subsequently and before the trial commenced the magistrate altered the latter plea to one of not guilty in terms of s 113 of the Criminal D Procedure Act 51 of 1977.

Before the matter was heard on 25 February 2000 there had been a postponement hearing on 13 January 2000 before the same magistrate, Mr P J J Van Rensburg, who according to the note he made of the proceedings, informed both accused of their rights relating to legal aid and legal representation. There is a further note that E neither accused chose to be represented and each undertook to conduct his own defence. There is no transcript of the exact words used by the magistrate in explaining their legal rights to the accused. It would appear there was no mechanical recording of that hearing at all. F

When the trial commenced before magistrate Van Rensburg on 25 February 2000 the prosecutor in his opening address stated that both accused were appearing in person and that they had already, on a previous occasion, indicated that they declined legal representation and would be conducting their own defence. He added: 'Dit blyk dat die posisie nog dieselfde is, soos hulle aan my meegedeel het.' G

At the commencement of the trial, accused No 2, who was the younger of the two, was given an opportunity to give a plea explanation which he did orally. In his words he stated: 'Dit sal nie gebeur het nie, Edelagbare, as sy nie vir my self, sy het my self, sy het my kom soen, Edelagbare, ek het haar terug gesoen, Edelagbare.' Thereafter one thing led to another and they both went to the peach orchard where, H after talking to each other, they had sexual intercourse. According to him it was voluntary and he denied having raped the complainant. Asked about her age, he simply said he didn't know.

When it came to accused No 1, who had pleaded not guilty, he was asked if he had anything to say. There was a long silence and he then said that he was pleading guilty. When asked to explain what had I happened on the night in question, presumably as part of his plea explanation he stated that it was a Friday night and that he had gone in search of his brother. Walking along the road - it is common cause that this was a farming area - he and accused No 2 met up with the complainant R J. J

Josman J

He too said that RJ had kissed him and that he had responded in similar vein. Thereafter he and accused No 2 accompanied A RJ to the peach orchard where he asked her if she would have sex with him. She agreed. As a result the magistrate altered the plea to one of not guilty.

The trial was complicated by the fact that the complainant was not in court with the accused but was in the adjacent room and contact was made through an intermediary. The reason given for this was that B because of the age of the complainant, the court assumed that she would be subjected to unreasonable stress if she had to testify in their presence.

The first witness to testify was the complainant's mother and her initial testimony related to the mental condition of the complainant, presumably in order to justify the use of the intermediary. Neither C accused had any questions to put to the witness in this respect. Accused No 2 did however voice his concern to the magistrate that the complainant was not in front of them and that he could not hear what she was saying. Despite his objection, the matter proceeded through the intermediary who apparently could hear the question in the adjacent room.

The complainant then testified and gave evidence of the rape. At the D end of the evidence in-chief the accused were informed by the magistrate of their right to cross-examine the complainant. When the accused No 1 was asked if he had any questions, there was a silence. When the magistrate repeated this question, accused No 1 said that he had no questions. The magistrate warned him that if he failed to ask questions the complainant's evidence would be accepted, whereupon E accused No 1 said he would ask a question and...