THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

REPORTABLE/NOT REPORTABLE

Case No 323/2015

In the matter between:

LENTIKILE MICHAEL MOCUMI

APPELLANT

and

THE STATE

RESPONDENT

Neutral citation:
Mocumi v The State (323/2015) [2015] ZASCA 201 (2
December 2015).
Coram:

Navsa, Cachalia, Shongwe, Tshiqi and Dambuza JJA
Heard:

11 November 2015
Delivered:

2 December 2015

Summary: Criminal law – evidence - contradictions in the evidence of child
complainants in sexual offence cases – contradictions not necessarily fatal to state
case – evidence must be considered carefully – discussion of onus borne by the
State - court must be satisfied that despite contradictions the evidence constitutes
proof beyond reasonable doubt of commission of the offence and identification of the
perpetrator – relevant considerations include the age and capacity of the child.

___________________________________________________________________

ORDER
___________________________________________________________________

On appeal from: North West Division of the High Court, Mahikeng (Djaje AJ and
Hendricks J, sitting as a court of appeal):

The following order is made:
The appeal is upheld and the order of the court below is set aside and substituted
with the following:
„The appeal is upheld and the conviction and related sentences are set aside.‟

JUDGMENT

Dambuza JA (Shongwe JA concurring):

[1] The sexagenarian appellant was convicted by the Taung Regional Court of
the North West Province on a charge of raping a 12 year old child. He was
sentenced to 15 years‟ imprisonment. The magistrate immediately granted him leave
to appeal against both the conviction and sentence and he was released on bail
pending the appeal. On 6 November 2014 the Northwest Division of the High Court,
Mahikeng (Djaje AJ and Hendricks J) dismissed his appeal against conviction and
altered the sentence by suspending five years of the 15 year sentence. This appeal
is against the conviction, special leave having been granted by this court.

[2] The charge sheet stated that the rape occurred during the period 1 to 28
February 2006. Broadly, the allegations on which the charge was based were that
whilst transporting the complainant to school in his vehicle the appellant had non-
consensual sexual intercourse with her in the vehicle.

[3] It was common cause before the regional magistrate that in 2006 the
complainant and her parents lived in Mokgareng Village, Taung in a house owned by
the appellant‟s in-laws. The complainant attended school at Ntokwe Primary School,

some distance away from home. The appellant provided transport for her and other
children in the vicinity in his van. Initially, the complainant‟s mother paid the appellant
for these services; but in about March 2006 she stopped making payments for a
reason I will discuss later in this judgment.

[4] During July 2006 the complainant‟s mother caused the complainant to be
examined by a nurse at the local clinic, Ms Cecilia Mogadile. This was as a result of
a suspicion held by the mother that the appellant had had sexual intercourse with the
complainant. Before taking the complainant to the clinic the complainant‟s mother
confronted her with her suspicions. The complainant responded by crying. At the
clinic the nurse confirmed that the complainant had been sexually penetrated. On
examining the complainant‟s private parts, the nurse found a number of scars
indicating past penetration. At first the complainant refused to divulge the identity of
the perpetrator and continued to cry. But after the nurse instructed the mother to
leave the consulting room, the complainant told the nurse that the appellant had had
sexual intercourse with her.

[5] Following the examination by the nurse, the complainant was taken to the
police and thereafter, for medical examination by a local doctor, Dr Gunaselva. The
doctor also observed the scars on the complainant‟s private parts and concluded that
they were consistent with the history of „sexual assault with penetration‟ which had
been given to him.

[6] In essence, the complainant‟s evidence was that the appellant had sexual
intercourse with her on a February morning after he had picked her up from the
usual spot en route to collect the other children on their way to school. Whilst she
was sitting on the front seat of the appellant‟s van, the appellant asked to have
sexual intercourse with her. Thereafter the appellant pulled her towards him. They
alighted from the front and got into the back of the van where the appellant had
sexual intercourse with her despite her refusal. During July 2006 the appellant came
to her house and ask to have sexual intercourse with her, but she refused.

[7] The appellant‟s mother testified that her suspicions about the appellant‟s
behaviour started in about March 2006, when the appellant told her to stop paying

him for the complainant‟s transport. Some time thereafter the appellant visited the
complainant‟s home and requested that the complainant should go and report to her
maternal grandfather that „they‟ would not be able to go to church. On this occasion,
the appellant offered to lend the complainant a television set. He discouraged the
complainant‟s mother from telling her husband about the television offer, saying he
was lending it to the complainant and not the family. He brought the television to the
complainant‟s home some days later. The complainant‟s mother discussed with the
appellant‟s wife the appellant‟s waiver of transport fees and lending the complainant
a television set. In July of the same year the complainant visited her mother‟s
parents. Whilst there, she was sent by her grandmother to her home to ask for food.
However, the complainant‟s mother was visiting elsewhere and had left the house
keys at the appellant‟s home. The complainant fetched the keys on the mother‟s
telephonic instructions and went home. On her return, the complainant‟s mother was
told by a neighbour, Ms Tjulu, that the appellant had visited the complainant whilst
the mother was away. This is the incident that led to the complainant being taken to
the clinic. The mother‟s evidence was that on learning about the appellant‟s visit to
her home in her absence, she again went to discuss her discomfort with the
appellant‟s wife who suggested that the complainant be taken to the clinic.

[8] Ms Jeanette Mento previously worked at a crèche run by the appellant‟s wife
at the appellant‟s home. She confirmed that she was present at the complainant‟s
home when the appellant brought the television set for the complainant. The
evidence of the nurse, Ms Mogadile was that she examined the complainant on 18
July and observed healed scars on her private parts. Dr Gunaselva testified on the
contents of the J88 medico legal report which he completed on his examination of
the complainant.

[9] The appellant denied ever having had sexual intercourse with the
complainant. His evidence was that, contrary to the evidence of the complainant and
her mother, the complainant would always be the last one to be fetched by him
before going off to school. No sexual intercourse could have taken place in those
circumstances. Regarding payment for the complainant‟s transport he testified that
the complainant‟s mother „was not paying (him)‟. When he confronted her about her
failure to pay her response was that in future the complainant would only use the

transport in winter. The appellant then offered to take the complainant to school even
when the mother would not be paying. He denied that he had lent the television set
to the complainant specifically. According to him he allowed the complainant‟s family
to use it together with a wardrobe and a coal stove which were in the house that they
were renting from his in-laws. He explained that his visit to the complainant‟s home
in the mother‟s absence was to inspect the house for maintenance purposes as he
had always done, on behalf of his „in-laws‟.

[10] Mr Clifford Moepeng testified that in 2006 he used to share transport to and
from school with the complainant. According to him the appellant‟s routine when
fetching the children was always to fetch two other children first, P and M, from
Rooiwal, then himself, and only thereafter, the complainant, then they would proceed
to school. The State also led the evidence of police officer Mr Ernest Monname who
recorded the complainant‟s police statement. Mr Monname testified in relation to the
spot or place where the sexual intercourse took place in the appellant‟s van. His
evidence was that the complainant had told him this took place on the front seat of
the van.

[11] In convicting the appellant the magistrate acknowledged the discrepancies in
the evidence tendered by the State, particularly the contradictions in the evidence of
the complainant, her mother and Dr Gunaselva. But he was satisfied that the
evidence led constituted proof beyond reasonable doubt that the appellant had had
sexual intercourse with the complainant.

[12] Before I consider the specific grounds on which the appeal is brought it is
necessary to clarify the issues on appeal as I see them. Although, in the court a quo
all the material elements of the charge against the appellant had to be proved, it
does not appear that the evidence that the complainant had been sexually
penetrated was in serious dispute. When Dr Gunaselva started giving evidence he
was led by the prosecutor on the injuries and resultant scars on the complainant‟s
private parts. The doctor had observed five scars on the complainant‟s genitalia. He
had also observed and recorded in the medico legal report (J88) that the
complainant‟s hymen was not intact. His conclusion, as recorded in the J88, was that
the scars were „compatible with remote sexual penetration‟.

[13] Of course the doctor could not have authoritatively testified as to how, exactly,
the complainant was penetrated. All he could do was to give an opinion as to his
clinical findings and the history related to him by the complainant and his mother.
Therefore his response to a question by the prosecutor as to whether it was his
„conclusion that there was sexual intercourse with penetration‟ must be understood
in this context. His response was „yes that is the possibility‟ and „there are other
possibilities too‟.

[14] Clinical findings and conclusions drawn by doctors who examine
complainants in sexual assault cases are generally accorded significant weight by
our courts as an indication that sexual intercourse probably did or did not occur,
particularly in relation to young children. The identity of the perpetrator then becomes
determinable on its own merits. In this case there was never any evidence that the
injuries on the complainant‟s private parts were caused by anything other than
sexual intercourse. The finding by the magistrate that the evidence proved beyond
reasonable doubt that the complainant was raped must be accepted to be correct. It
is my view therefore that the pertinent issue in this appeal is the magistrate‟s finding
that the appellant was the perpetrator.

[15] It was submitted on behalf of the appellant that the identification of the
appellant by the complainant as the perpetrator probably resulted from her mother‟s
suggestions in the course of confronting her at home and when giving history to the
nurse at the clinic. The submission is also based on an entry in the J88 and the
evidence by the doctor that the complainant and her mother told him that the
complainant had been sexually abused by a relative. The entry in the J88 reads:
„2006 January to 7 June she was sexually abused by a known gentleman, a relative.‟

[16] I agree that the complainant‟s evidence as to the identity of the perpetrator
had to be considered carefully. She was a single witness who was a child. It is trite
that in sexual assault cases caution must be exercised when considering evidence of
young children who are prompted by leading questions on whether or by whom they
were sexually assaulted. Immaturity might cause the child to believe that the
suggestion is true.

[17] In her evidence, the complainant denied that she told the doctor that she was
raped by a relative. The complainant‟s mother could not recall what her response to
the doctor‟s question as to the identity of the culprit was. On the other hand, the
doctor insisted that what he wrote was information given by the complainant and her
mother. In my view the reference to a relative makes no sense in view of the fact that
the complainant had already identified the appellant as the perpetrator to the nurse
and to the police. The magistrate‟s finding that the reference to a relative was
probably a misunderstanding between the doctor and the complainant and her
mother is, in my view, correct. From the record it appears that the complainant‟s and
the appellant‟s families were relatively closely associated. They attended the same
church; the complainant‟s mother discussed her concerns about the appellant‟s
behaviour with the appellant‟s wife more than once; and she left her home keys at
the appellant‟s home when she went away. During cross examination both the
complainant and her mother appeared to have intimate familiarity with the appellant‟s
home circumstances; for example, they knew that the appellant‟s children had their
own television set. Hence my view that a misunderstanding probably crept into their
description of the perpetrator to the doctor; more so that there is no evidence that the
discussion between the doctor, the complainant and her mother was conducted
through an interpreter. Another patent example of a misunderstanding is the recordal
by the doctor of the complainant‟s age as eight years. It is relevant that English is not
the first language of the complainant, her mother and the doctor. Further, the person
to whom the complainant first divulged the incident was a trained professional who
calmed her down and coaxed her, not by focusing on the identity of the perpetrator,
but by alerting her to dangers of sexually transmitted diseases and HIV.

[18] A further leg on which the appeal stands relates to the dates on which the
incident happened. As stated, the charge was that the appellant raped the
complainant during the period 1 to 28 February 2006.The examining doctor testified
that he was told by the complainant and her mother that the rape occurred during the
period February to 7 June 2006 as recorded on the J88. The submission on behalf of
the appellant was that this uncertainty about the date of the incident was prejudicial
to him and rendered his trial unfair. I do not agree. It is correct that a charge must set
forth the relevant offence in such manner and with such detail as to be reasonably
sufficient to inform the accused of the nature of the charge to enable an accused to

prepare his defence.1 On the other hand, provision is made in the Criminal
Procedure Act 51 of 1977 (CPA) for rectifying defective charges and clarifying any
vagueness or ambiguity.2

[19] In this case the charge specified a clearly circumscribed period during which
the offence was alleged to have occurred. The appellant was able to plead thereto
without any difficulty. The reference, in the J88 and the evidence of the doctor, to the
period February to June could only be a discrepancy in the evidence supporting the
charge. Equally, the complainant‟s momentary failure during cross-examination to
recall the month during which the incident occurred fell to be considered as such.
These discrepancies could not, in my view, render the appellant‟s trial unfair.

[20] Regarding the complainant‟s evidence as to when the rape occurred, at the
start of her evidence she was led by the prosecutor to „explain what happened during
the month of February 2006‟. During cross-examination she was asked if she could
remember the month during which the rape occurred. At first she could not, but she
later did. Considering the age of the complainant, both at the time of the incident and
when she was giving evidence, and the lapse of time between the incident and the
trial, I do not think that her momentary lapse of memory was unreasonable or that it
was an indication that she was fabricating her evidence. On the whole, apart from
that moment in cross-examination the complainant was consistent about the month
during which the rape occurred.

[21] A related submission was that on the doctor‟s evidence the incident could not
have happened in February 2006. However the doctor‟s evidence that the only thing
he could conclude with certainty from the injuries was that the incident occurred
more than a month prior to the date of examination does not support that
submission.

[22] Much was made, both before the regional court and in this court, of the lack of
clarity in the complainant‟s police statement and her evidence in court regarding

1 Section 84 of the Criminal Procedure Act 51 of 1977. Also see s 35(3)(a) of the Constitution and S v
Ismail & others 1993 (1) SACR 33 (D) 40c-d.
2 For example, further particulars may be requested in terms of s 87 of the CPA.

where exactly, in the appellant‟s van, the sexual intercourse took place. As already
stated, in her evidence the complainant stated that sexual intercourse took place at
the back of the van. During cross-examination it was put to her that she had told
Police Officer Monname that the incident happened on the front seat of the van. The
relevant portion of the statement reads as follows:
„On his arrival as I was standing next to the electricity house I got into the van in front seat
and I sat on passenger side and he pulled me next to him and undress my panty and he
continue having sex with me without proposed any relationship to me and I do feel that his
penis is into my vagina and he never used a condom and I did feel pain of what has
happened to me as it was for the first time I have sex with a male person.‟

[23] The complainant insisted during cross-examination that she had told the
police officer that sexual intercourse happened at the back of the van. English is not
Mr Monname‟s first language. During cross-examination he testified that the
conversation between himself, the complainant and the complainant‟s mother was in
Setswana. Although he insisted that he read the statement back to the complainant
after taking it, the complainant denied that it was ever read back to her. As evident
from the quoted portion, the statement did not result from a careful leading or
guidance of the complainant to explain the details of the incident. Mr Monname
admitted that the statement probably did not contain all the details of the incident.
For these reasons its contents cannot bear the same weight in the same light as the
complainant‟s evidence in court.3

[24] The complainant was criticized for failing to report the rape when the appellant
was not in her presence and she was in the security of her home. But it hardly needs
to be said that the effect of the threat which she said the appellant had uttered to her
would not have ceased just because she was home. It is a well-established fact that
even adult victims of sexual abuse often delay or do not report the rape or sexual
assault, either because of threats uttered to them by the perpetrators or for fear of
the social stigma, shame and humiliation of having been raped.4 Naturally these
emotions would have been heightened in the case of the complainant who was a

3 S v Mafaladiso en andere 2003 (1) SACR 583 (SCA) at 593a – 594h.
4 Victim Responses to Sexual Assault: Counterintuitive or Simply Adaptive? Patricia L Fanflik; 2007;
Special Topics Series; Office of Violence Against Women;: office of Justice Programs; United States
Department of Justice

child at the time. The conduct of the complainant in this case was consistent with
recognised behaviour of victims of sexual abuse. For some time she hid the fact that
she had been sexually abused. In court she was reluctant to give details about the
incident. She resolved not to tell her mother about it even when the mother
confronted her. In the J88 the doctor recorded that the complainant was agitated at
the time of examination. The complainant‟s fear must have been compounded by the
fact that the appellant was a close friend of her family and to an extent, a person in
loco parentis over her. In her evidence she repeatedly stated that she was scared of
him. The circumstances in which the complainant found herself were complicated
and must have been overwhelming for a 12 year old. It would be unreasonable to
expect that her fear would dissipate when she was in the presence of her parents.

[25] A further submission relates to the evidence of the complainant and that of
her mother as to whether the complainant bled as a result of the sexual encounter
and whether she or her mother washed her soiled underwear. It was the
complainant‟s evidence that she bled as a result of sexual intercourse with the
appellant. She further testified that she washed her soiled underwear as she used to
wash her underwear at the time. Contrary to her evidence, her mother, during cross-
examination, testified that she was the one who used to wash the complainant‟s
panties at the time of the incident and she never observed any blood thereon. This
contradiction, it was submitted on behalf of the appellant, was material and was an
indication that the complainant‟s evidence that she was raped by the appellant was
untrustworthy. But again, the issue whether the complainant bled is really relevant in
relation to whether she was penetrated. As I have stated, proof beyond reasonable
doubt of penetration is found in the medical evidence tendered. The complainant
was 12 years old when she was penetrated. The probabilities favour her evidence
that she bled on being penetrated. As to the discrepancy between her evidence and
that of her mother on this aspect her evidence would be more reliable than her
mothers. The magistrate remarked that the mother came across as „a very
unsophisticated person who did not appear to have a good memory‟. He remarked
that her powers of recollection were at times poor, but she readily conceded
forgetfulness.

[26] Other contradictions in the evidence of the complainant pertain to whether the
complainant undressed herself or the appellant did and whether the threat to kill her
(if she told anyone about the incident) was uttered before or after the sexual
intercourse. Regarding the first, at some stage during cross-examination she testified
that the appellant undressed her before having sexual intercourse with her. She later
said she undressed herself. When she was confronted about the contradiction she
explained that she „forgot‟. On the second issue, when she was first asked why she
did not resist she responded that the appellant had threatened to kill her with a
firearm. Later, when asked when, exactly, the threat was uttered she responded that
it was after the sexual intercourse. Thereafter she repeated that the threat came
after sexual intercourse.

[27] The remarks made by the magistrate on the demeanour of the complainant
and her mother are relevant. He referred to the complainant‟s immaturity at the time
of the incident and at the time of the trial. This, according to him, „emerged from the
manner in which she explained the events‟. It is my view that her capacity to
understand and respond to questions must be considered in light of her progression
only up to Grade 5 at the age of 15 years at the time of the trial. According to the
magistrate the complainant had to be prodded to explain what happened. She was
reluctant to give details of the incident without being asked specific questions. She
„just wanted to quickly explain the rape only‟. The record reveals that she broke
down twice whilst giving evidence. The magistrate formed the view that the
complainant
exhibited
genuine
emotions
and
answered
questions
„very
spontaneously‟. He found, however, that despite spending an extended period of
time in the witness stand, the complainant did not appear to exaggerate the incident;
instead she testified in a „very simple manner‟.

[28] I agree with his finding that despite the shortcomings in the evidence of the
complainant and her mother their evidence bears features of originality and
trustworthiness. For example, they both insisted that the appellant‟s routine was to
fetch the complainant first and thereafter the other children. Their spontaneous
admission that at their home there was also a wadrobe and a stove that belonged to
the owners of the house as the appellant stated, while insisting that the appellant
specifically lent the television set to the complainant is significant. But their evidence

was not the same on everything. The complainant readily admitted that she had no
knowledge about arrangements between her parents and the appellant regarding the
inspection of the house. She did not know the exact details regarding the payment
arrangements that her mother and the appellant had testified on. When asked if the
appellant had given her presents she replied that he had only lent her a television
set. Her mother readily admitted that the appellant had connected power to their
house and had once fixed a broken window. She also readily admitted that the
nurse‟s opinion was that the complainant had had sexual intercourse more than
once. When it was put to her that the appellant would deny ever threatening the
complainant she replied: „I do not know because it was just the two of them in the
vehicle [the complainant] is the one who can tell what happened. Her spontaneous
estimate of March as the time when the appellant told her to stop payment is
consistent with the sequence of the relevant events. It was not in dispute that she
discussed the unusual favours extended by the appellant with the appellant‟s wife
even before the visit that led to the complainant being taken to the clinic.

[29] Indeed, at first glance the evidence of the appellant and his witness Mr
Moepeng appears clean and not as afflicted by shortcomings as that of the
complainant and her mother. That, in my view, is because the appellant‟s defence
was a bare denial. The only detail was in the order of picking up the children.
Naturally that would limit the extent to which he and his witness would make
mistakes. But even then his evidence was not without inconsistencies and obvious
lies.

[30] Firstly, his explanation for the favours he extended to the complainant was not
reasonably possibly true. Regarding payment for the school transport, according to
him he confronted the complainant‟s mother because she had failed to pay him. But
when the mother sought to withdraw the complainant from the transport arrangement
he insisted that the complainant should continue travelling with him even though the
mother was not paying. The explanation does not make sense. The evidence of the
complainant and her mother about the television set was confirmed by Ms Mento
who was not only an independent witness but the appellant‟s former employee. The
appellant‟s evidence on this aspect was false beyond reasonable doubt. And there
can be no reasonable doubt that these favours were designed to secure the

complainant‟s silence about the incident. Regarding his visit to the complainant‟s
home he explained that he went there for routine inspection of the house. This was
on a Saturday. On his own evidence it was only the third time he was visiting the
house (the first and the second instance must be when he connected the power and
fixed the window). Coincidentally he chose the third day of maintenance to be a
Saturday when the complainant was alone at home. The probabilities favour the
complainant‟s version on this aspect as well.

[31] It was put to the complainant that on that day the appellant found her in the
company of „Ntulu or Makazulu‟, a person who the complainant insisted she did not
know. In cross-examination nothing was said to the complainant‟s mother about
„Ntulu or Makazulu‟. Instead, in his evidence the appellant testified that he found the
complainant in the company of Nangomeso. In my view Ntulu, Makazulu and
Nagomeso were a fabrication designed to justify the appellant‟s abnormal visit to the
12 year old complainant.

[32] It was put to the complainant during cross examination that the appellant‟s
routine was to first pick up G and her sister from Rooiwal. The appellant‟s evidence
was that he would pick up „the witness, P and his sister‟. Thereafter he would drive
back to Mogareng Village to pick up O and lastly the complainant. O‟s evidence was
that the appellant first fetched P and M. It is also striking that O was only alerted  in
2010 that he would have to testify at the trial, he could clearly recall that P, M and
himself never missed a day of school in 2006, but he could not recall whether the
complainant did miss some days at school.

[33] Consequently, I agree that when all the evidence is considered there is no
reasonable doubt that the appellant did have sexual intercourse with the 12 year old
complainant. I would have dismissed the appeal.

______________________
N Dambuza
Judge of Appeal

Navsa JA (Cachalia and Tshiqi JJA concurring)

[34] I have had the benefit of reading the judgment of Dambuza JA and regret that
I cannot agree with her reasoning and conclusion that the appeal against conviction
should be dismissed. I shall in due course set out the relevant parts of the evidence I
consider material.

[35] At the outset, it is necessary to record that persons, especially children, who
allege that they were the victims of a sexual offence, should be treated with care and
consideration from the commencement of an investigation by the police and through
the rigours of a trial. In Director of Public Prosecutions, Transvaal v Minister of
Justice and Constitutional Development & others [2009] ZACC 8; 2009 (4) SA 222
(CC), the Constitutional Court said the following (para 74):
„Courts are now obliged to give consideration to the effect that their decisions will have on
the rights and interests of the child. The legal and judicial process must always be child-
sensitive.‟ (footnotes omitted.)

[36] Furthermore, in S v Jackson [1998] ZASCA 13; 1998 (1) SACR 470 (SCA),
this court held (at 476e-f) that the cautionary rule in sexual assault cases is based on
an irrational and outdated perception. It unjustly stereotypes complainants in sexual
assault cases as particularly unreliable. It went on to say the following at 476e-g:
„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.‟

[37] However, in the adjudication process, sight should not be lost of the
fundamental principle of our law, that in a criminal trial the burden of proof rests on
the prosecution to prove the accused‟s guilt beyond a reasonable doubt. 5 Not one of
the principles set out in this and the preceding paragraphs can be sacrificed. One
must necessarily guard against being too readily critical of child witnesses and, at
the same time, avoid too readily excusing material shortcomings in the State‟s case.

5 See P J Schwikkard et al Principles of Evidence 3 ed (2009) at 558-559 for a useful, brief discussion for the
underlying philosophy. See also s 35(3)(h) of the Constitution which sets out the presumption of innocence.

[38] The charge sheet noted that the complainant was 12 years‟ old. It is important
to note that the child complainant commenced her testimony without resort to an
intermediary, in terms of s 170A of the CPA. It was only when she began to cry,
shortly after she had started testifying, that the State considered the use of an
intermediary. The magistrate recorded that an intermediary would be used because
it was clear during the complainant‟s testimony that she was suffering and she was
emotional and could not manage. Having regard to the history of the matter and the
evidence available to the State, which is set out in the judgment by my learned
colleague, it ought to have been clear that the complainant would require the
assistance of an intermediary right from the commencement of her testimony. In this
regard the State failed her.

[39] The charge sheet stated that the offence in question occurred „upon or about‟
1 – 28 February 2006. At the commencement of her evidence the complainant had
no doubt that the rape about which she complained had occurred during February
2006. Under cross-examination the complainant was asked whether she could
remember the month during which the alleged offence had occurred. This time her
answer was: „I do not remember.‟ When she was asked further why she had
previously (at the commencement of her evidence in-chief), agreed that the offence
had occurred in February, she replied that she had been scared. When asked where
the prosecutor had obtained February 2006 as the date during which the incident
occurred, she replied that he had obtained it from her. When asked why she could
not now remember the date, she replied that the incident had occurred a long time
ago. A short while thereafter she was once again certain that the offence occurred
during February 2006, saying the following:
„I just remembered the date, I just remembered it.‟

[40] The official form completed by Dr Gunaselva who examined the complainant
and who testified on behalf of the State recorded that he had been told that she had
been sexually abused between „January to June 2006‟. The complainant insisted
that she had not told the doctor that the incident had occurred between January to
June 2006. She was equally unyielding when she stated that she had not told the
doctor that a relative had sexually abused her. He explained that the dates he
recorded as the time during which the incident occurred were supplied by the

complainant‟s mother. The nurse, who testified in support of the State‟s case, stated
that she had asked both the complainant and her mother about the date on which
the rape had occurred and they said that they did not know. It must be borne in mind
that the nurse saw the complainant and her mother during July 2006, much closer to
the date of the alleged incident. The trial appears to have been conducted between
August 2008 and the first half of 2011. A further unsettling feature of the
complainant‟s testimony in relation to the time during which the incident is alleged to
have occurred is that when she was asked how early in the morning it had
happened, she said: „I do not remember‟. She also said that there was no one on the
streets. One would have expected the obvious answer to be the time during which
the complainant was usually fetched to be taken to school.

[41] What is set out above is a varied date span across which the appellant had to
conduct his defence without an amendment having been made to the charge sheet
in terms of s 86(1) of the CPA. Furthermore, no thought was given to s 92(2) of the
CPA which deals with time variances between the charge sheet and the evidence.
Section 92(2)(a) raises the question of prejudice that might be suffered by an
accused. With reference to the above it cannot, in my view, be said that „on the
whole‟ the complainant was consistent about when the incident occurred. Given the
inconsistencies, I fail to see how it can be said that the time period within which the
offence was committed was „clearly circumscribed‟. It becomes even more
inconsistent when one compares the complainant‟s evidence to the testimony of the
doctor and the nurse. It cannot simply be excused on the basis that there was a
„momentary lapse‟ on the part of the complainant. The problems surrounding the
date of the occurrence of the event are but one aspect to be taken into account in
the assessment of the complainant‟s credibility.

[42] It is important to consider a little more closely the circumstances leading up to
the complainant‟s identification of the appellant as the person who had raped her.
The complainant testified that, until her mother took her to the clinic, she had not
reported the rape to anyone. Her mother‟s motivation for taking her to the clinic so
that she could be examined was the report by the neighbour that the appellant had
visited the child at the house in her absence. As set out in the judgment of Dambuza
JA, that incident was connected by the complainant‟s mother to the prior gift of the

television set as well as to the waiver by the appellant of the complainant‟s transport
fees.

[43] The evidence of the nurse, who saw the complainant at the clinic, was that the
latter‟s mother had brought her to the clinic saying that she suspected that „a certain
man‟, who transported her child to school, had raped her daughter. She provided
bases for the suspicion. This communication took place in the presence of the
complainant. All the while the complainant was crying. The complainant‟s mother
informed the nurse that she had put her suspicions to her child but that she had not
been forthcoming. According to the nurse the mother informed her that the child just
kept on crying without divulging anything. It was only after the mother was requested
to allow the nurse to question the child alone that the complainant then informed her
that the appellant had raped her in the back of the van which he used to transport
her to school. It is necessary to take into account that, under cross-examination, the
nurse testified that she gained the impression that the child was uncomfortable with
her mother in attendance because she was „continuously crying‟. From the nurse‟s
examination of the complainant‟s vagina she concluded that there had been
penetration.

[44] The fact that the complainant‟s mother, in her presence, had informed the
nurse about the circumstances giving rise to her suspicions and her simultaneous
identification of the appellant as the person she suspected of having raped her child,
is not without significance in the overall assessment of whether the State had met
the onus of proving the appellant‟s guilt beyond a reasonable doubt. It will be
recalled that, according to the nurse the complainant was uncomfortable in her
mother‟s presence. In addition her mother had already subjected her to an
interrogation and pressure. Even though the complainant‟s mother left the room
before the complainant then provided the nurse with a description of events, the
power of suggestion by her mother cannot be discounted.

[45] Under cross-examination the appellant‟s legal representative sought to
explore whether the complainant understood what the word „relative‟ meant. She
replied she understood the word to mean that it was a family member who was „not
very close‟. The complainant was adamant that the appellant did not qualify as a

„relative‟. Dr Gunaselva who was called by the State was „absolutely sure‟ that the
complainant and her mother had told him that the perpetrator was a relative. The
contradictions between State witnesses about whether a „relative‟ was identified as
the perpetrator cannot in my view simply be ignored on an assumption that a
„misunderstanding probably crept in‟. There was no evidence of a misunderstanding.
The contrary is true. Dr Gunaselva was absolutely certain that this had been
imparted to him by both the complainant and her mother. The complainant, even
though she understood the word „relative‟ a little more restrictively than its actual
meaning, nevertheless was clear that the appellant was not her relative. This is yet
another unsatisfactory aspect of the State‟s case. It bears mentioning that
Dr Gunaselva‟s evidence did not prove conclusively that the complainant had been
raped, only that this was possible.

[46] There are further material inconsistencies and contradictions that impact on
the strength of the State‟s case. Under cross-examination the complainant was quite
clear that she was raped at the back of the bakkie. She explained how she had been
taken from the passenger cab to the rear of the vehicle where the appellant had
undressed her. The complainant was then confronted with the statement she made
to the police, in which the following appears:
„I [got] into his van in front seat and I sat on passenger‟s side and he pulled me next to him.
And undressed my panty and he continued having sex with me without proposing any
relationship with me.‟
The complainant testified that when she made the statement she had spoken to the
policeman in Setswana and that the policeman was Setswana speaking. Her
response to the apparent contradiction between her evidence in court and the
statement she made to the police was to insist that she had told the police what she
had told the court.

[47] After her earlier testimony that the appellant had undressed her, as set out in
the preceding paragraph, the complainant testified that she had undressed herself.
Confronted with this contradiction, she said that her earlier statement in court had
been a mistake and that she had forgotten what had in fact occurred.

[48] The reliance on Mafaladiso is not an adequate answer to the contradictions
between the complainant‟s statement to the police and her evidence in court. Those
contradictions, as pointed out above, were in fact compounded by contradictions in
her viva voce evidence. First, the passage in Mafaladiso indicates that it must be
carefully ascertained what the witness had intended to say on each occasion. In the
present case there is no ambiguity in each of the contradictory statements. Second,
Mafaladiso states that regard should be had to language and cultural differences
between the witness and the policeman taking the statement. In the present case,
both the policeman and the complainant spoke Setswana.

[49] The policeman, Mr Ernest Monname, testified that he had almost two decades
of experience as a policeman. According to him the complainant‟s mother was
present when he took the former‟s statement. He was adamant that he had read it
back to her and that she confirmed that she had understood the contents. He
expressed no doubt that the complainant told him that she had been raped within the
passenger cab of the vehicle. She had told him that she was the first to be picked up
and that she had occupied the front seat. He was also certain that she had told him
that the appellant had undressed her. Under cross-examination by the prosecutor
who suggested to him that he might have misunderstood the complainant, he said
the following:
„I do not understand, because she said to me she was in the front seat. She was pulled by
the accused towards him and the rape occurred.‟
Notwithstanding the prosecutor‟s persistence the witness insisted:
„That is how I recorded it, and that is how it was related to me.‟
In the light of what is recorded above, the inconsistencies and contradictions cannot
be explained away simply on the basis that the policeman admitted that the
statement probably did not contain all the details of the incident. We are not dealing
with omitted details, but factual averments in the statements that are inconsistent
with the subsequent testimony of the complainant and with contradictions in her viva
voce evidence.

[50] It is not insignificant that the complainant testified that before the appellant
had raped her he had threatened to kill her if she told anyone about the deed he was
about to perpetrate. This has to be contrasted with the visit to her house in respect of

which she testified that she had refused to have sexual intercourse with him. It does
not explain her apparent fear whilst in a public place as against her being resolute
when she was on her own in her mother‟s house. The complainant described the
place where the appellant parked the bakkie and raped her as being close to the
container at which they sold electricity. It appears from the complainant‟s evidence
under cross-examination that the location at which she was raped was also the
location at which she boarded the motor vehicle in order to be transported to school.
The complainant‟s mother, in insisting that the complainant was the first to be
collected on the transport route, testified that she sometimes saw the appellant
collecting her child at a spot close to her house. It does seem strange that the
appellant would have chosen a visible spot at which to perpetrate the rape.

[51] It is important to consider the complainant‟s testimony that she had bled as a
result of being raped and that as a result there was blood on her panties. The
complainant‟s mother testified that she used to wash the complainant‟s panties and
that she had not observed any blood on her daughter‟s underwear. The complainant,
on the other hand, said that she used to wash her own panties. This contradiction is
material and cannot be explained away simply on the basis that the bleeding was
only relevant in relation to whether the complainant was penetrated and that this
aspect had been put beyond doubt by the medical evidence, which I have said is
neutral. The absence or presence of blood on the panties is material and is relevant
in relation to credibility. It is also no answer to say that on this aspect the appellant‟s
evidence should be preferred above that of her mother.

[52] The regional magistrate, whilst ostensibly recognising that a witnesses‟
demeanour is not an infallible guide to the truth, nevertheless placed great store on
the complainant‟s demeanour. In the past, counsel representing accused were often
apprehensive about findings on demeanour that were intended as a shield against
appeals. In President of the Republic of South Africa & others v South African Rugby
Football Union & others [1999] ZACC 11; 2000 (1) SA 1 (CC), the Constitutional
Court, said the following (para 79):
„The advantages which the trial court enjoys should not, therefore, be over-emphasised “lest
the appellant‟s right of appeal becomes illusory”. The truthfulness or untruthfulness of a
witness can rarely be determined by demeanour alone without regard to other factors

including, especially, the probabilities . . . A further and closely related danger is the implicit
assumption, in deferring to the trier of fact‟s findings on demeanour, that all triers of fact
have the ability to interpret correctly the behaviour of a witness, notwithstanding that the
witness may be of a different culture, class, race or gender and someone whose life
experience differs fundamentally from that of the trier of fact.‟ (footnotes omitted.)

[53] Almost a century ago, this court, in Estate Kaluza v Braeuer 1926 AD 243 at
266-267 said the following:
„A crafty witness may simulate an honest demeanour and the Judge has often but little
before him to enable him to penetrate the armour of a witness who tells a plausible story.‟
In S v Kelly 1980 (3) SA 301 (A) at 308D-E, in considering that passage, stated:
„On the other hand an honest witness may be shy or nervous by nature, and in the witness-
box show such hesitation and discomfort as to lead the court into concluding, wrongly, that
he is not a truthful person.‟
The magistrates‟ observation on assessment of the complainant in the witness-box is
no substitute for an assessment of the totality of the evidence including the merits
and demerits of the State‟s case.

[54] My colleague, although accepting that at least on the face of the evidence of
the appellant and the witness, Mr Moepeng, does not appear to be „afflicted by
shortcomings‟ such as those in relation to the complainant and her mother sought to
explain that by stating that it was easy for them to avoid being seen as inconsistent
and contradictory because the complainant‟s version of events was a bare denial. Mr
Moepeng, who testified about the route that was followed on the way to school, is
criticised by my colleague on the basis that whilst he purported to recall that during
2006 he had not missed a single day of school whilst he could not say with the same
degree of certainty that the complainant had also been present every day. I am
unable to see that as a proper basis for the rejection of his evidence. In S v Van der
Meyden 1991 (1) SACR 447 (WLD), the court said the following at 449j-450b:
„The proper test is that an accused is bound to be convicted if the evidence establishes his
guild beyond reasonable doubt, and the logical corollary is that he must be acquitted if it is
reasonably possible that he might be innocent. The process of reasoning which is
appropriate to the application of that test in any particular case will depend on the nature of
the evidence which the court has before it. What must be borne in mind, however, is that the
conclusion which is reached (whether it be to convict or to acquit) must account for all the

evidence. Some of the evidence might be found to be false; some of it might be found to be
unreliable; and some might be found to be only possibly false or unreliable; but none of it
may simply be ignored.‟
Other than the statement that it should be expected that the appellant and his
witness would show no discernable discomfort in their testimony because the
appellant‟s version is one of a bare denial of the facts alleged by the State, no
sustainable basis is provided for rejecting their evidence.

[55] Dambuza JA considered the three incidents upon which the complainant‟s
mother based her suspicions to be well-founded. It will be recalled that the
complainant‟s version in relation to each of these incidents cannot without more
simply be rejected.

[56] In any event the incidents in question are all circumstantial evidence in
respect of which one should have regard to what was stated in the oft quoted
passage R v Blom 1939 AD 188 at 202-203:
„In reasoning by inference there are two cardinal rules of logic which cannot be ignored:
(1)
The inference sought to be drawn must be consistent with all the proved facts. If it is
not, the inference cannot be drawn.
(2)
The proved facts should be such that they exclude every reasonable inference from
them save the one sought to be drawn. If they do not exclude other reasonable
inferences, then there must be a doubt whether the inference sought to be drawn is
correct.‟

[57] Even if one were to discount entirely the evidence of the appellant in respect
of the three incidents, which in the present case one cannot do readily, the incidents
in themselves do not lead to the ineluctable conclusion that the appellant was guilty
of the offence with which he had been charged.

[58] I am willing to accept that one or two shortcomings in the evidence of the
complainant might be expected and forgiven. However, the lengthy catalogue of
materially unsatisfactory aspects referred to above must redound to the benefit of the
complainant. They cannot be replaced with the catalogue of excuses. In my view, for
all the stated reasons, it follows that the State failed to prove its case beyond a

reasonable doubt. The appeal ought to succeed and the conviction and related
sentence should be set aside.

[59] The following order is made:
The following order is made:
The appeal is upheld and the order of the court below is set aside and substituted
with the following:
„The appeal is upheld and the conviction and related sentences are set aside.‟

________________________

M S Navsa

Judge of Appeal

APPEARANCES:

For the Appellant:

N L Skibi
Instructed by:
Legal Aid South Africa, Mahikeng
Bloemfontein Justice Centre, Bloemfontein

For the Respondent:

N J Carpenter and D G Jacobs
Instructed by:
Director of Public Prosecutions North West
Director of Public Prosecutions, Bloemfontein