THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case No: 32/07

REPORTABLE

In the matter between:

ALWYN CAROLUS

Appellant

and

THE STATE

Respondent
______________________________________________________________

BEFORE:

NAVSA, VAN HEERDEN JJA and MHLANTLA AJA
HEARD:

18 FEBRUARY 2008
DELIVERED:
20 MARCH 2008

SUMMARY: Indecent assault – appellant raising alibi defence – Held complainant had
positively identified the crime scene and the appellant as the perpetrator of the offence
and consequently that the appellant was guilty of indecent assault – sentence of 8 years’
imprisonment appropriate.

NEUTRAL CITATION:
This judgment may be referred to as Carolus v The State (32/07)
[2008] ZASCA 14 (20 MARCH 2008)

______________________________________________________________

MHLANTLA AJA

MHLANTLA AJA :

[1] The appellant was convicted by the Regional Court for the
Division of the Eastern Cape held in Port Elizabeth, on a charge of
indecent assault involving an eight year old boy. He was sentenced to a
period of eight years’ imprisonment. An appeal against both conviction
and sentence was dismissed by the Grahamstown High Court (Froneman
J, Schoeman J concurring) which, however, granted him leave to pursue
the current appeal.

[2] It is unchallenged that the complainant was indecently assaulted.
The issue in this appeal is whether the state succeeded in proving the
identity of the man who indecently assaulted him. Important in this
regard, is the question of whether the State correctly established the place
where the incident occurred. In respect of sentence the issue is whether
such sentence is excessive and induces a sense of shock.

[3] The incident is alleged to have occurred on 11 December 1997.
The trial only commenced some four years and three months later, in
March 2002.  The appellant was convicted and sentenced on 28
September 2004.  The appeal in the court below was finalised in February
2006, whilst this appeal was heard on 18 February 2008.  I will in due
course deal with these delays in greater detail.

[4] It is prudent at this stage to briefly set out the facts and
circumstances which led to the conviction of the appellant.

[5] At his trial, the appellant pleaded not guilty and denied all the
allegations against him. Five witnesses testified on behalf of the state.
These were the complainant (hereinafter referred to as Azaar), his mother,
Mrs Imtinaan Daniels, Mr Flippie Kiewiets, who is a police officer and
Azaar’s neighbour, Inspector Jerome Botha, the arresting police officer,
and finally Dr Theron, a medical practitioner, who at the relevant time
performed the duties of a district surgeon. The appellant testified and
called a witness, his housemate, Mr Marvin Matthee.

[6]     The evidence adduced on behalf of the state was as follows.
According to Azaar, the incident occurred between 14h00 and 15h00. He
was on his way to visit his aunt, after having been sent there by his
mother, when the appellant took hold of him and dragged him into the
appellant’s house.  Azaar did not know the address of the house but
described it in some detail. He stated that the colour of the exterior walls
was green and the front door was brown. There was an intercom next to
the front door and there were two large trees in front of the house.  The
previous owners had used the house as a tuck shop which he patronised
and had also often visited to play with the children who stayed there. The
backyard of that house is across the street and is clearly visible from the
front of Azaar’s home. Earlier that day, Azaar had seen the appellant on
the back stoep of that house consuming alcoholic beverages with his
friends. Azaar further stated that a church was subsequently built next to
that house and he drew a plan depicting the location of the appellant’s
house in relation to his own home.

[7]    Azaar had been forced inside the appellant’s house, where the latter
pulled down his own trousers as well as Azaar’s. He thereafter indecently
assaulted Azaar by penetrating his anus with his penis whilst they were

on the sofa. Azaar subsequently managed to flee from the house through
an open window whilst the appellant was in another room.

[8] Azaar ran home.  Mr Kiewiets testified that he saw Azaar running
down the street crying. Azaar was visibly distressed and immediately
made a brief report to his mother about his experience.  He took his
mother and Mr Kiewiets to the house where the incident had occurred.
Mrs Daniels and Mr Kiewiets knocked on the door but no-one responded.
That night  Azaar  pointed out the house to Inspector Botha, the arresting
officer.  He was thereafter taken to the hospital where he was examined
by Dr Theron. He noted some fresh tears in Azaar’s anus which
according to him were consistent with recent penetration. Dr Theron
testified that Azaar told him that he had been sodomised that afternoon by
a man known to him.

[9] The appellant was subsequently arrested at his house by Inspector
Botha shortly after midnight on 12 December 1997 upon the description
provided by Azaar. The description included not only the location of the
crime scene, but also the physical appearance and type of clothing worn
by the assailant.  According to Inspector Botha, Azaar had informed him
that the assailant was balding, dark in complexion and had a ‘beard’ on
his upper lip, clearly meaning a moustache. Furthermore, that he wore a
green tracksuit pant and a white T-shirt. It must be noted that Inspector
Botha in his statement indicated that Azaar had reported to him that the
appellant wore a grey top.  Azaar denied this. Inspector Botha arranged
that Azaar be brought to the police station to identify the suspect.  Azaar
spontaneously identified the appellant as his assailant by his facial
features and clothing before Inspector Botha could ask him.

[10] I turn to deal with the evidence adduced on behalf of the appellant.
The appellant denied committing the offence.  He raised an alibi defence.
According to him, he and his wife were at the time estranged and she was
living at her parental home in Selsoniville.  On the day in question he left
his house at about 13h00 to fetch his family.  On his way there he met Mr
Marvin Matthee (Marvin) who, as stated earlier, was his housemate and
who is related to his wife.  He drank some beers with Marvin and
someone called Shobaine whilst waiting for his wife. He eventually met
his wife who, however, declined to go with him because it was too cold
for the baby. He was on his way to his mother’s house when he met
someone called Boetie at the taxi rank. He shared a bottle of beer with
Boetie whilst waiting for a taxi. He spent some time with his mother. He
also visited a friend’s home where he watched soccer on TV.  He returned
home very late that night and was arrested upon his arrival. He was
adamant that Azaar was mistaken about his identity. He suggested that
someone he knew as Raymond, who resided in the same street as he and
who also fitted the description given by Azaar could be the perpetrator.

[11] Marvin’s testimony more or less mirrored the appellant’s version.
It was clear when he was testifying that, at the relevant time, he was not
in possession of a watch and his references to time were all estimates.
He, however denied any involvement in the earlier drinking incident at
the appellant’s house during the morning of 11 December.  He returned to
the appellant’s house at about 20h00 and there found the police who
interrogated him.  He realised that the police were in fact looking for the
appellant.

[12]     Marvin did not go to the police at any time after he learnt of the
reason for the appellant’s arrest to inform them that the appellant could

not have committed the offence, because at the relevant time they had
been elsewhere in each other’s presence.

[13] The regional magistrate found Azaar, who was a single witness in
respect of the events that occurred inside the house, an honest and
credible witness. She was cautious in evaluating his evidence and sought
corroboration elsewhere. She found that the contradictions and
discrepancies between the state witnesses were not material in nature and
did not detract from the veracity of Azaar’s evidence.  She rejected the
appellant’s version as not reasonably possibly true.  The court below
accepted the magistrate’s findings as correct and accordingly confirmed
the conviction.

[14] Counsel for the appellant contended that the state had failed to
prove that the appellant was indeed the perpetrator. It was further argued
that the court below erred in accepting the identification of the appellant
by Azaar who contradicted himself.  Counsel also contended that the
identification contained various other irregularities.

[15]   Section 208 of the Criminal Procedure Act 51 of 1977 provides
that an accused may be convicted of any offence on the single evidence
of any competent witness.  There is no formula to apply when it comes to
the consideration of the credibility of a single witness.  The trial court
should weigh the evidence of the single witness and consider its merits
and demerits and, having done so, should decide whether it is satisfied
that the truth has been told despite the shortcomings or defects or
contradictions in the evidence.1

1 S v Sauls 1981 (3) SA 172 (A) at 180E-G.  See also Schwikkard and Van Der Merwe: Principles of
evidence 2ed (2000) p 519 and authorities cited therein.

[16]      Azaar is also a child.  In   Director of Public Prosecutions v S,2
the court came to the conclusion that:
‘It does not follow that a court should not apply the cautionary rules at all or seek
corroboration of a complainant’s evidence.  In certain cases caution, in the form of
corroboration, may not be necessary.  In others a court may be unable to rely solely
upon the evidence of a single witness.  This is so whether the witness is an adult or a
child.’

[17]     It will be recalled that identity is the primary issue in this case.
Our courts have repeatedly stated that evidence of identification must be
approached by the courts with caution. In S v Mthetwa,3 the court said:
“Because of the fallibility of human observation, evidence of identification is
approached by the courts with some caution. It is not enough for the identifying
witness to be honest: the reliability of his observation must also be tested.”

[18]       There can of course be no conviction unless the court is satisfied
that the prosecution has proved the guilt of the accused beyond
reasonable doubt.

[19]   Turning to the facts of this case, it is common cause that Azaar’s
identification of the appellant in the police station occurred after he had
been informed of the appellant’s arrest.  Counsel for the state conceded,
in my view properly, that not much weight can be attached to this
identification. It took place under strange circumstances, where the rules
relating to the conduct of an identification parade were certainly not

2 2000 (2) SA 711 (T) at 716 B-D.See also Schwikkard pp 518 and 519: “Each case must be considered
on its merits and this might involve a finding on whether the evidence of the child witness concerned is
such that it can for purposes of a conviction safely be relied upon.”
3 1972 (3) SA 766 (A) at 768

adhered to. The entire process took place in a police cell after Azaar had
been informed about the arrest of the appellant.

[20] In my view, the investigation of this case was conducted in a
slovenly manner.  There are clearly defined rules on how to conduct
identification parades.  The investigating  officer disregarded these rules.
It is imperative that the police should strive to fulfil their duties with
competence, diligence and efficiency.  Failure to do so may affect the
rights of the accused as well as the administration of justice.

[21] That, however, was not the primary issue.  The crucial elements
were, in my view, whether Azaar pointed out the scene of the crime and
the perpetrator.

[22] Counsel for the appellant submitted that Azaar was confused and
that no reliance can be placed on his testimony.  This submission cannot,
in my view, prevail.  It is evident that, despite being traumatised, Azaar
was not confused about the location of the house which he pointed out to
his mother and to the police, nor was he equivocal about  the identity of
the perpetrator. His description of the house cannot be faulted as it, in
fact, fits in with the accused’s version. Azaar even described the type of
furniture which was in the lounge where the crime was committed.  Mr
Kiewiets and Mrs Daniels confirmed the description of the house as
pointed out to them by Azaar immediately after the incident.  This
description was confirmed as correct by the appellant who also conceded
that the house on the sketch plan drawn by Azaar and exhibited in court
was his house. Azaar, it will be recalled, had visited that house repeatedly
in the past.

[23] In so far as the identity of the perpetrator is concerned, there can be
no doubt that the description of the appellant and of his clothing must
have been given by Azaar prior to the appellant’s arrest as he otherwise
could not have been a suspect. Furthermore, how would Mrs Daniels, Mr
Kiewiets and the police have known about his identity.  It is common
cause that Marvin had earlier encountered the police at the appellant’s
house, which was locked.  The police asked him if he lived there and he
replied in the affirmative. They could have arrested Marvin if they had no
description of the actual perpetrator.  It is quite evident that Marvin did
not fit that description.   Even Marvin testified that he realised that the
police were looking for the appellant when they met him.

[24]   Azaar’s description of the perpetrator fits in with the appellant’s
appearance. He is balding, dark in complexion and has a moustache,
although Azaar referred to it as a “beard”. He wore a green tracksuit pant
and a white T-shirt. It is common cause that the white T-shirt was
underneath a grey top when the appellant was arrested.

[25] In my view it would be a remarkable co-incidence if Azaar was
mistaken about the identity of the appellant. The latter himself testified
that he was the only person who was in possession of the keys to the
house.  Marvin was unable to enter the house because it had been locked
and the appellant was the only person who controlled entry into the
house.

[26] Counsel for the appellant argued that the fact that Azaar did not
notice the appellant’s skin condition ─ the appellant suffered from
psoriasis ─ was indicative of the fact that the appellant could not have
been the perpetrator.

[27]  This argument, in my view, is without merit and is rejected.
Firstly, the doctor’s medical report which was submitted on behalf of the
appellant was made several years after the incident.  The extent of this
condition in December 1997 was not established.  Second Marvin
testified that the appellant only periodically suffered from this sickness.
Be that as it may, it must be borne in mind that this was a fleeting
incident.  The perpetrator was wearing his shirt and had his trousers up to
his knees.  Azaar was traumatised.  He was himself busy dressing and
also seeking an opportunity to escape from that house.  In my view the
conditions were not conducive to minutely observe the appellant’s body.

[28] The alibi defence on behalf of the appellant was not satisfactory.
Marvin was not convincing and was selective in his recall of events.  The
appellant’s version appears to have been retold by Marvin, whose
estimate of times was clearly expedient.

[29]    More importantly the alibi defence was never put to Azaar or to his
mother by the appellant’s legal representative. Significantly, none of the
other witnesses refered to in para [10] above presented themselves to the
police to protest the appellant’s innocence as one would have expected
them to, nor did they testify in court.

[30] It is equally strange that the existence of Raymond was never
brought to the attention of the police. The appellant apparently heard
about Raymond’s existence shortly after his release on bail on 24
December 1997; yet the police were never told about this. Neither,
apparently, was the appellant’s legal representative informed of
Raymond’s existence which came up for the first time when the appellant

testified. The similarity between the appellant and Raymond was never
put to Azaar or any other state witness for comment. In my view the
appellant would certainly have conveyed this crucial information to the
police if Raymond really existed.

[31]  I am satisfied that the magistrate, as found by the court below, had
properly assessed the evidence. She correctly found that the
contradictions referred to were not material and did not render the
veracity of the state’s version suspect. She was well aware of the dangers
inherent in the evidence of Azaar as well as the need to exercise caution.
She looked for safeguards as guarantees against mistaken identification
and properly assessed all the evidence placed before her. Accordingly the
appeal against conviction must fail.

[32] There are disturbing features of this case that we are constrained to
address. In addition to the flagrant disregard of the rules relating to the
identification of suspects, no crime kits were available at the hospital to
enable Dr Theron to take a sample for DNA analysis. It is imperative in
sexual assault cases, especially those involving children, that DNA tests
be conducted. Such tests cannot be performed if crime kits are not
provided. The failure to provide such kits will no doubt impact negatively
on our criminal justice system. Fortunately in this matter such negative
outcome has been avoided by the brave and satisfactory evidence of
Azaar as corroborated by other witnesses.

[33] The most disconcerting aspect relates to the delays in the
commencement and finalisation of this matter indicated above. Counsel
for the state was unable to furnish any explanation. She invited comment

by the court in this regard to ensure that law enforcement agencies and
persons involved in the administration of justice act appropriately. As I
have indicated earlier, the trial commenced some four years and three
months after the commission of the offence. Azaar was by then 13 years
old and was called upon to recall events that had occurred in 1997.
Further it has taken more than ten years to finalise this case. Fortunately
the appellant has been out on bail save for a period of three months after
his conviction. This case has, however, been hanging over his head for a
very long period.

[34] There is no ostensible reason for the delays. In certain instances the
matter was postponed at the request of the state or the defence. Be that as
it may, this state of affairs is unacceptable and is cause for grave concern.
In my view an investigation must be conducted by the relevant authorities
to establish the root cause of these delays and to determine how a
situation of this nature can be avoided in future. It is hoped that these
shortcomings will receive their prompt and proper attention. To that end
we intend directing the Registrar of this court to serve a copy of this
judgment on the Minister of Justice and Constitutional Development, the
Minister of Police and also on the National Director of Public
Prosecutions for their attention.

[35] I turn now to consider the appeal against sentence. Counsel for the
appellant submitted that the magistrate had failed to take into account all
mitigating circumstances and in the result imposed a sentence that was
excessive. In this regard counsel submitted that the appellant is a first
offender, a school teacher and sole provider for his family; that he has
already been punished as he was dismissed as a result of the conviction;
that he has suffered a considerable amount of stress during the trial as a

result of the delays caused in finalising the matter and, lastly, that Azaar
has not suffered any permanent psychological injuries and has been able
to continue with his studies.

[36] I do not agree with these submissions. The offence of indecent
assault is very serious and in this case the complainant was a young boy
of eight years of age. Assaults of this nature are now defined as rape in
terms of s 3 of the Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32 of 2007.  The prescribed sentence in respect of a rape
involving a child under the age of 16 years is set out in s 51 of the
Criminal Law Amendment Act 105 of 1997.  The appellant can count
himself fortunate that the provisions of Act 32 of 2007 do not apply in his
case since the offence was committed in 1997. Assaults of the kind
perpetrated against Azaar are the most invasive of assaults. This was a
degrading, humiliating and traumatic experience for Azaar.  In my view,
the fact that the appellant is a father and a school teacher can be regarded
as an aggravating factor. The community expects people like the
appellant to protect the children.

[37]     The appellant is not the only person to have been affected by these
delays. Azaar and his family also had to wait for a period of more than
ten years for the final outcome of this case. The court recognises that the
trial should have been conducted in an expeditious manner. Counsel for
the appellant referred us to the decision of S v Stephen 1994 (2) SACR
163 (W) where the accused had been in custody for six months awaiting
trial and the court held that a period of imprisonment whilst awaiting trial
was the equivalent of a sentence of twice the length. In my view the facts
of that case can be distinguished from the facts in this appeal because the
appellant has been out on bail pending the finalisation of the matter

throughout these delays, save for a period of three months after his
conviction.

[38] In my view, the magistrate took all the relevant factors into account
when considering sentence. The sentence imposed is commensurate with
the seriousness of the crime, the circumstances of the appellant, as well as
the interests of society.  In the result there is no basis for this court to
interfere. It follows therefore that the appeal against sentence also fails.

[39] The Registrar of this court is directed to serve copies of this
judgment on the Minister of Justice and Constitutional Development, the
Minister of Police and on the National Director of Public Prosecutions.

[40] In the result the following order is made:
(a)
The appeal against conviction and sentence is dismissed.

_______________________
N Z MHLANTLA
ACTING JUDGE OF APPEAL

CONCUR:
)
NAVSA JA

)
VAN HEERDEN JA
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

ALWYN CAROLUS v THE STATE

From: The Registrar, Supreme Court of Appeal
Date:
20 March 2008
Status: Immediate

Please note that the media summary is intended for the benefit of the media and does not form part
of the judgment of the Supreme Court of Appeal.

The Supreme Court of appeal today dismissed an appeal by Mr Alwyn Carolus (the appellant) against his
conviction on a charge of indecent assault and sentence of eight years’ imprisonment in the Regional Court,
Port Elizabeth, confirmed on appeal by the Grahamstown High Court (Froneman J, Schoeman J concurring).

This court found that the magistrate had properly assessed all the evidence placed before her and correctly
rejected the appellant’s alibi defence.  This court held that the complainant, who had been indecently
assaulted on 12 December 1997, had positively identified the crime scene and also the appellant as the
perpetrator of the offence.  The court further held that the assault perpetrated against the complainant has
been the most intrusive in nature and that the sentence imposed was appropriate.

The appeal against conviction and sentence was accordingly dismissed.

The court voiced its disapproval about the absence of the crime kit at the hospital which resulted in a DNA
test not being performed and stated that this will bring the criminal justice system into disrepute.  The court,
in particular, was concerned about the delays in respect of the trial, which commenced some four years and
three months after the commission of the offence and voiced its strong disapproval in this regard.

The Registrar of this court was directed to serve a copy of this judgment on the Minister of Justice and
Constitutional Development, the Minister of Police and on the National Director of Public Prosecutions.