THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case no: 537/2018

In the matter between:
Y

APPLICANT
and
THE STATE

RESPONDENT

Neutral citation: Y v S (Case no 537/2018) [2020] ZASCA 42
(21 April 2020)
Coram:
NAVSA, DAMBUZA, MOLEMELA and MBATHA JJA and
MOJAPELO AJA
Heard:
18 February 2020
Delivered: This judgment was handed down electronically by circulation
to the parties’ legal representatives by email, publication on the Supreme
Court of Appeal website and release to SAFLII. The date and time for hand-
down is deemed to be 10h00 on 21 April 2020
Summary: Criminal law and procedure – evidence – sexual assault and rape
of child complainant in terms of the Criminal Law (Sexual Offences and
Related Matters) Amendment Act 32 of 2007 – multiple contradictions and
inconsistences in the evidence of single child witness – whether the evidence

was sufficient to prove the offences beyond a reasonable doubt – evidence
unsatisfactory in material respects – appeal upheld.

ORDER

On appeal from: Free State Division of the High Court, Bloemfontein
(Mbhele J and Chesiwe AJ, sitting as court of appeal):
1 The application for leave to appeal is granted.
2 The appeal is upheld and the order of the court below is set aside and
substituted as follows:
‘The appeal is upheld and the convictions and related sentences are set
aside.’

JUDGMENT

Mbatha JA (Navsa and Dambuza JJA concurring)

[1] The applicant, Mr Y, was arraigned before the Regional Court for the
Division of Free State, Bloemfontein (the regional court) on one count of
sexual assault in contravention of s 5(1) of the Criminal Law (Sexual Offences
and Related Matters) Amendment Act 32 of 20071 (the Sexual Offences Act),
and two counts of rape in contravention of s 3 of the Sexual Offences Act.2
He entered a plea of not guilty on all charges. He was subsequently convicted
of all charges. He was then sentenced to five years’ imprisonment on the

1 Section 5(1) reads as follows:
‘A person (“A”) who unlawfully and intentionally sexually violates a complainant (“B”), without the consent
of B, is guilty of the offence of sexual assault.’
2 Section 3 provides:
‘Any person (“A”) who unlawfully and intentionally commits an act of sexual penetration with a complainant
(“B”), without the consent of B, is guilty of the offence of rape.’

conviction of sexual assault and life imprisonment on the two convictions of
rape.

[2] His application for leave to appeal his convictions and related sentences
was dismissed by the regional court. A petition to the Judge President of the
Free State Division of the High Court, Bloemfontein (the high court) met the
same fate. This was followed by an application for leave to appeal to this
Court, which leave was granted to the full court of the high court, in respect
of both conviction and sentence. That appeal failed.

[3] The applicant then lodged an application for special leave to appeal to
this Court, which was referred for oral argument in terms of s 17(2)(d) of the
Superior Courts Act 10 of 2013. The parties were directed to be prepared, if
called upon to do so, to address the court on the merits of the appeal. We heard
argument on both the application for leave to appeal and on the merits.

[4] It is necessary at the outset to state that the police, the prosecuting
authority and courts are required to display the requisite sensitivity and
attentiveness to cases involving sexual offences, including consideration of
the trauma attendant upon those who were victims, especially when they are
children. Care should however also be taken at the end of the case to ensure
that the criminal standard of proof has been met. The State is required to be
technically proficient in prosecuting the case. In this case the prosecution fell
short. This is an aspect to which I will repeatedly refer.

[5] The complainant in this matter was born on 4 November 1996. She was
thus 13 years and six months old when the trial commenced in the regional

court. The applicant, the accused in the regional court, is her stepfather. It is
necessary to pause to have regard to the charge sheet which we had to call for
during the hearing before us as it was not provided as part of the record. In
respect of the first count, the particulars provided in the charge sheet read as
follows:
‘In that on or about the During 2008 and at or near Bloemfontein in the Regional Division
of Free-State the said accused did unlawfully and intentionally sexually violate the
complainant, to wit minor child (Ms X) 12 years by making her touch and caress your penis
and touching and caressing her breasts without the consent of the said complainant.’
In respect of the second count the charge sheet reads as follows:
‘In that on or about the During 2008 and at or near Bloemfontein in the Regional Division
of Free-State the said accused did unlawfully and intentionally commit an act of sexual
penetration with the complainant to wit, (Ms X) a 12 year old girl by penetrating her vagina
with fingers more than once without the consent of the said complainant.’
In respect of the third count the charge sheet set out the following:
‘In that on or about the during August 2009 and at or near Bloemfontein in the Regional
Division of Free-State the said accused did unlawfully and intentionally commit an act of
sexual penetration with the complainant to wit, 12 year old (Ms X) by penetrating her
vaginally with his penis once.’

[6] It is common cause that the complainant, her mother, her stepfather and
her sibling, all lived together in Trompsburg before they moved to a caravan
park in Bloemfontein. The allegations against the applicant first surfaced after
an incident that occurred on 17 September 2009. The complainant had stolen
a chocolate at a local Spar supermarket. Her mother was informed about this.
She in turn telephoned the complainant’s stepfather who then arrived at the
shop and physically admonished her in public. According to the complainant

she was smacked across her face. The applicant, in his evidence, insisted that
he had struck her across her buttocks.

[7] In respect of the theft of the chocolate and subsequent events Ms V, the
complainant’s 17 year old friend, testified that on 18 September 2009, whilst
they were walking home from school, she enquired about a blue eye that the
complainant had sustained and which had been visible at school the day
before. The complainant told her that she had been struck by her stepfather
with an open hand, across the face, the day before, because she had stolen
sweets from the supermarket. Ms V, in turn, told her mother about this
exchange. Her mother imparted this information to the caretaker of the
caravan park, who suggested they wait for the complainant to arrive before
they contacted a social worker. As the complainant approached the caravan
park, Ms V told her that she had informed her mother about the assault by her
stepfather. Upon hearing this the complainant started crying and was
concerned that her mother might be angry that she had told someone about the
assault.

[8] Following on what is set out in the preceding paragraph, according to
Ms V, she then knelt before the complainant and advised her that if there was
anything she wished to communicate she must do so, because the social
worker was on her way. The complainant’s response was to cry even more.
The following part of Ms V’s evidence-in-chief on this aspect, is important:
‘I then asked if uncle Y was. . . Or if she was touching, if Oom Y was touching her body.
Ugh-huh? --- She then said to me; yes. I then asked her; what does uncle Y do to her. She
then said that uncle Y puts some hard(?) parts into her. …(indistinct) and she showed me.
… (interpreter clarifies). He insert his part into her (sic).

How did she show you? --- She stood upright and showed me and pointed to her genitals
and okay(?) this(?) part of the man … (indistinct) that(?).
You mean… What parts? --- This part of a man…
INTERPRETER: The witness is pointing to her genitals.
Into what? --- Into her vagina.
Ugh-huh? --- I then asked her; what else does uncle Y do? She told me that uncle Y also
touches her body all(?) over(?) her body. I then asked her if she could still remember the
last time that uncle Y inserted his private part into hers.
Ugh-huh? --- She told me she could not remember quite well but it was about a year ago.’

[9] It is common cause that subsequent to the discussion described above,
Ms V’s mother was informed and a social worker was summoned and after
she had spoken to the complainant in the presence of Ms V, the police arrived
and arrested the applicant. In light of the narrative thus far and the information
available to the prosecutor, one would’ve expected care to be taken in the
presentation of the evidence of the complainant, especially in relation to the
chronology, location and frequency of the actions of the applicant. This was
not done.

[10] I now turn to set out the relevant parts of the evidence of the
complainant who testified through an intermediary. It is necessary to deal with
her evidence in some detail. The material part starts with the prosecutor
saying: ‘Now let us start the whole episode from 2008. Do you remember the
month when this started?’ And the complainant responding first: ‘My pa het
my geleer van seks.’ The court then pointed out that the intermediary had not
conveyed the question concerning the month in which the offending conduct
commenced. The complainant then said that she could not remember the

month. It must at this stage be kept in mind that the prosecutor started by
suggesting the year in when the ‘whole episode’ started.

[11] The prosecutor then posed the following question: ‘Can you then tell us
how it started what your dad did first before you reach to the rape, what did
he do? The answer to that question was: ‘Hy het aan my gepeuter’.‘Peuter’ is
defined in the Pharos Afrikaans-Engels Woordeboek3 as follows: ‘fiddle,
potter, putter, niggle, tinker, palter, footle, piddle, tamper. . .’ It is to be noted
that the prosecutor started by suggesting that she still has to testify about being
raped. Up until that stage, she had not mentioned rape.

[12] Immediately after the exchange set out in the preceding paragraph the
prosecutor said the following:
‘Tell us everything how it started, how you touched him, all those things.’
Once again the prosecutor is leading the witness. She had not yet testified
about touching the applicant. Shortly thereafter the prosecutor then asked the
following question:
‘Tell us where were you, who came and how it happened.’
The following is the relevant exchange:
‘Hy het langs my kom lê in die bed.
Whose bed? --- My bed.
Yes? --- Hy het gepeuter aan my. Toe trek hy sy broek af. Toe trek hy my broek af. Toe
verkrag hy my.
How did he rape you, what did he do, actually do. What part of the body did he use? --- Sy
private deel.
Where, what did he do with his private part? --- In my privaatdeel gesit.

3 M du Plessis, F Pheiffer, W Smith-Müller & J Luther (eds) Pharos Afrikaans-Engels English-Afrikaans
Woordeboek Dictionary (2010) at 447.

And did what? --- Hy het my verkrag.
COURT: Do you have the dolls there Mrs Van der Walt.
[INTERMEDIARY]: Ja ek het.
COURT: I think you can give her the dolls to demonstrate because she is struggling to talk.
Proceed.
Before, had she done anything to you on the body? --- Hy het aan my gepeuter.
Not on the day of the rape, I am talking about before then? --- Ja.
What did he do? --- Hy het sy vinger in my private plek gesit.
And where were you when he did so, at home, in your bedroom, in the kitchen? --- Ek kan
nie onthou nie.
Was it once or many times, several times? --- Meer as een keer.’

[13] The complainant then testified that she had been sworn to secrecy by
the applicant. The prosecutor proceeded to ask the following question:
‘Has Y ever shown you his body or anything? --- Ja’
What appears hereafter is the relevant exchange:
‘What? --- Sy private plek.
Where were both of you? --- In sy kamer.
What did he start saying before he showed you his private part, his penis? --- Hy het my
verduidelik van seks.
Saying what? --- Ek kan nie so mooi onthou nie.
Did you know how kids were made? --- Ja.
Did anyone tell you how they are made? --- Nee.
So you did not know why he was showing you his private part? --- Nee.
What did he say about sex? --- Hy het my vertel hoe word babas gemaak.
What did he say? --- Hy het gesê as jy seks het, ‘n sperm gaan in jou in ‘n vrou se liggaam
in, dan word dit groter en dan kry jy ‘n baba daar.
Hm-hm? --- Ek kan nie mooi onthou nie.
Did you touch or only see that penis? --- Hy het my hand gevat en dit op sy private deel
gesit.

Did you agree to do so or were you just ordered to? --- Ek het vir hom gesê ek wil nie.
But what happened? --- Toe vat hy my hand en toe sit hy dit op sy private deel.’

[14] The complainant was asked whether she had told her mother about what
had occurred and her answer is: ‘Nee’. Asked why she had not done so, she
stated ‘Ek was bang’ and then immediately thereafter ‘Ek was bang hy maak
my seer’. The following further exchange is also relevant:
‘Did this touching of his penis happen on a separate date or time or day from the rape? ---
Ja.
So am I correct to say the touching of your breast and the putting on fingers was also
different from this touching of penis and rape?
COURT: Do you understand? --- ‘n Paar dae daarna, ja.’
Significantly, the complainant had not testified about the touching of her
breast before it was mentioned by the prosecutor, nor did she testify about it
thereafter. It is also, at this stage, important to note that in the exchange
referred to above, it is clear from the complainant’s evidence, that the three
incidents set out in the charges sheet, occurred within days of each other.

[15] The prosecutor subsequently attempted to obtain clarity in relation to
the sequence of events:
‘So can you then tell us which comes first, when did he do this first and then this and then
that? --- Heel eerste het hy vir my verduidelik van seks. Daarna toe begin hy vat aan my
privaatdele.
Hm-hm? --- Toe het hy een dag my verkrag.
All these times you did not tell your mother? – Nee.
Did anyone say you must not tell? --- My Pa.’
At this stage she was denying that she told her mother about any one of the
three incidents.

[16] The prosecutor continued and questioned the complainant about how
the applicant’s conduct became known to others:
‘--- Toe my pa my verkrag het toe het ek vir hom gesê, los my uit, toe raak hy kwaad, toe
sê hy iets vir my ma. Die volgende dag in die badkamer toe vra ek vir my ma wat het
gebeur. Toe sê ek vir haar hy het my seergemaak. Toe vra sy vir my hoe seergemaak.
… Toe sê ek vir haar hy het sy privaatdeel in my privaatdeel ingedruk.’
From this exchange it appears that what her stepfather said to her mother,
caused her to ask what had happened, rather than her disclosing anything
before that.

[17] The complainant went on to testify that Ms V came to know about it
after she had been asked by the latter whether the applicant was molesting her.
The prosecutor then asked the complainant whether she had an injury on her
face. This was before anybody had testified about such an injury.  Despite this
impermissible leading of the witness, the magistrate did not once intervene.
The complainant confirmed that she had an injury on her face and that this
had occurred because her stepfather had assaulted her after the theft of the
chocolate. She confirmed that Ms V and her mother had contacted the
caretaker of the caravan park and thereafter the social worker.

[18] Towards the end of her evidence-in-chief the complainant said that after
she had informed her mother about what her stepfather had done, the former
had undertaken to talk to him about it, but did not appear to have done so.

[19] Under cross-examination the complainant described the inside of the
caravan in which her family lived. She described how the front door of the
caravan was kept open so as to access a small room standing apart from it.

Two beds stood within the caravan and one in the adjoining room. Her mother
and stepfather slept in the caravan and she slept in the adjoining room. The
beds were apparently two to three metres apart. The complainant was asked
to explain what she meant when she used the word ‘gepeuter’ in her earlier
evidence. She replied that she meant that the applicant had placed his finger
in her private part. She did not protest because she was afraid he would assault
her.

[20] The complainant was asked when the applicant had exposed his penis
and placed her hand on it. She said that this had occurred in his room. This
incident, she said, had occurred in his room when they still lived in
Trompsburg. She could not remember the date of that incident. She could not
say whether it was two, three or six months before they moved from
Tromspburg to the caravan park. She did say however, that it had occurred
before the rape in the caravan. She could not remember whether it was three
months or six months before they had moved to the caravan park,4 ostensibly
from Trompsburg. Almost immediately thereafter, she said that the rape in the
caravan had occurred a few months after the incident in Trompsburg.

[21] It will be recalled that the first two incidents, including the one
presently being discussed were said in the charge sheet to have occurred in
2008, whereas the rape was said to have occurred in 2009. It will also be
recalled that the complainant had testified earlier, in-chief, that the three
incidents in respect of which the applicant had been charged had occurred a
few days apart. From her evidence-in-chief they appear to have occurred at

4 ‘Was dit twee maande of drie maande of ses maande voor julle getrek het? --- Ek kan nie onthou nie.’

one location, namely, the caravan park, as that is where they had been living
at the time. Trompsburg was never mentioned by the complainant during her
testimony in-chief.

[22]  Under cross-examination the complainant was asked, once again,
when the applicant had first abused her sexually. Her reply was that she could
not recall. She said she could not recall when it occurred because she might
not want to recall it. She was asked about the second time when he had abused
her sexually. Her response was: ‘As ek kan reg dink, in my bed.’ She had no
idea where her mother was at that time. According to her, the caravan door
was open at the time.

[23] Asked how many times he had abused her sexually (gepeuter het), she
replied, ‘baie keer’. She was asked whether it occurred in the caravan park or
in Trompsburg. She replied that it had occurred in both locations. She could
not recall where her mother was when any one of these incidents occurred.

[24] Further, under cross-examination, the complainant repeated that she
had not called for help because she was afraid. She was then asked why she
then told her mother about it, when they were in the bathroom together the
next day. She replied as follows:
‘Want ek wou dit uit my kry.’
Asked why her fear had dissipated, she replied:
‘Want ek het besef hy kan niks aan my doen nie.’
As to why she had feared her stepfather before, she replied
‘Want toe ek klein was het hy Martial Arts gedoen’
As to why she chose, nevertheless, to disclose her stepfather’s misconduct to her mother
she stated:

‘Ja maar hy het nie’
Later under cross-examination she was asked, once again, why she had told her mother
about the rape. She replied:
‘Want ek het besef ek moet’.
Shortly thereafter she said the following:
‘Ek was bang daardie aand want as ek vir my ma vertel het of ekskuus, as ek geskree het
daardie aand sou my ma en my pa gestry het en ek wou hulle bymekaar hou.’
Pressed by counsel for the applicant as to why she told her mother about the incident the
next day, she replied:
‘Ek het nie meer omgegee nie . . . Want ek het besef een van die dae gaan kom wanneer
hulle twee gaan skei.’
A short while later, in response to a question, yet again, about why she had changed her
mind, she said the following:
‘Want my pa was kwaad gewees het vir my oor ek vir hom gesê het: los my uit. Toe sê hy
iets vir my ma. Die volgende oggend toe vra my ma vir my wat het gebeur. Toe sê ek vir
haar my pa het my seergemaak. Toe vra sy hoe seergemaak.’

[25] The complainant had testified that while she was raped in the caravan
she had said the following to her stepfather:
‘los my uit’.
She said her mother would not have heard because she speaks softly.

[26] Asked about whether she had stolen sweets before, she replied:
‘Nie wat ek aan kan dink nie, nee’
Urged by counsel for the applicant to tell the truth, she then testified as
follows:
‘Toe ek klein was uit my oupa sê winkel uit, ja.’

[27] Asked about the time of day that the rape (the third count) had occurred
she replied: ‘In die aand’. Asked where her mother was at the time, she
replied: ‘In haar bed’. It will be recalled that she had testified earlier that she
could not recall where her mother was at the time of any one of the three
incidents. Later, under cross-examination, she repeated that the rape (the third
count) had occurred at night. It was common cause that her stepfather drove
trucks over long distances for a living and that he was often away from home.
The complainant testified that he worked Mondays to Fridays. Some nights
he was at home. She was adamant that at the time that her stepfather raped
her, she was in her pyjamas. She could not recall whether he was dressed or
not. Later she stated that in order for him to have raped her: ‘Hy het seker sy
broek afgetrek.’ Asked if she had seen him do this, she replied: ‘Dit was onder
die komberse, ek kon niks sien nie.’ It will be recalled, as set out in para 12
above, that the complainant clearly testified that she had seen the applicant
remove his pants before he raped her.

[28] The applicant was referred to a statement to the social worker where
she had stated that he had raped her in the morning, when he was off work.
When she was confronted with the contradiction between her statement to the
social worker and her testimony about the time when the rape occurred she
insisted that it had occurred at night and stated the following: ‘‘n mens is ook
net ‘n kind ‘n mens vergeet baie maklik’.

[29] Asked under cross-examination whether her stepfather had been under
the influence of alcohol at the time that he had raped her in the caravan, she
replied: ‘Ek kan nie onthou nie, dit is lank terug’. In her statement to the social
worker she had said the following:

‘Die keer toe hy sy ding in my ingedruk het was hy ‘n bietjie gedrink gewees. Dit het in
die oggend gebeur.’
In explaining the contradiction, she said the following:
‘Maar ek kan nie onthou wat ek in die verklaring gesê het nie, want dit is lank terug.’

[30] Asked about whether she was angry at her stepfather because he had
assaulted her following the theft of the chocolate, she replied:
‘Ek was nie kwaad vir hom gewees nie, elke kind kry sy pak, maar deur die gesig, nee, dit
werk nie so nie.
So jy was vir hom kwaad gewees omdat hy vir jou deur jou gesig geklap het? --- Ek was
nie kwaaad vir hom gewees nie, maar dit werk ook nie so dat hy ‘n mens deur die gesig
klap nie.’

[31] It is to be noted that the complainant repeatedly stated under cross-
examination that she is telling the truth and that it was up to others to believe
her or not. At one stage she refused to answer a question on the basis that she
had answered it already.

[32] In respect of how the disclosure of the allegation about her stepfather
raping her came about, the following question and response are relevant:
‘Het jy ook toe vir haar vertel dat jou pa jou verkrag het? --- Sy het my gevra, het hy, toe
sê ek ja.’

[33] Significantly, Ms V testified that the complainant was reluctant to speak
to the social worker because she did not want the latter to disclose to her
mother what she had done. This is at odds with the complainant’s testimony
that she had already disclosed to her mother what her stepfather had done to
her. Asked about what had prompted her to suggest what the applicant had

done to the complainant, she replied that many people in the caravan park had
suspicions about the applicant. It was clear from the evidence of Ms V, her
mother and the applicant that there was little love lost between them and him.
More accurately it appeared that they positively disliked each other.

[34] In respect of the blue eye that the complainant had sustained, Ms V
agreed that it was strange that it had not been visible the morning after the
chocolate incident, and that she had only seen it that afternoon on the way
home from school. She testified that the complainant had initially said that she
had sustained the blue eye in a fight. It was only after Ms V accused her of
lying that she implicated the applicant. This evidence came to light for the
first time during cross-examination.

[35] Under cross-examination Ms V was emphatic that the complainant had
not disclosed her stepfather’s misdeeds to her mother ‘want sy was bang my
ma vertel haar ma’. The following exchange a little later is important:
‘Verstaan ek reg; jy sê dat [X] het vir jou gesê sy het nooit vir haar ma van die goed vertel
nie, wat nou Mnr Y sou gedoen het nie? --- Nee, sy het nie haar ma vertel nie.’

[36] Further on in cross-examination Ms V was even more emphatic:
‘Ek noem dit vir jou dat [Mnr Y] hier hier getuig het in die hof dat sy dit wel vir haar ma
vertel het. --- Maar ek sê mooi vir jou sy het nie haar ma vertel nie, want haar ma weet van
niks nie, tot en met die dag wat [die maatskaplike werker] daar was’.
Ms V insisted that the complainant had only told her that she had been
molested sexually by her stepfather, and nothing more.

[37] Ms V’s mother, Ms H, confirmed her testimony that the complainant
said that she had not told her mother about her stepfather sexually abusing
her. She did, however, provide some corroboration for the applicant’s version
that he had struck the complainant on the buttocks by stating that Ms V told
her that the complainant had been beaten on her buttocks. Towards the end of
cross-examination she added the injury to the eye.

[38] Sister Mokoena, a forensic nurse, testified that she had examined the
complainant on 30 September 2009. She completed the J88 medical form,
which showed no evidence of penetration. Irrespective of that, Sister
Mokoena concluded that the lack of injuries did not exclude the occurrence of
sexual assault.

[39] The social worker testified that upon receipt of the complaint, she
interviewed the complainant and her family. She testified that she
immediately placed the complainant in foster care permanently. The social
worker’s testimony was that she observed a blue mark on the right hand side
of the complainant’s face. As she was leaving with the complainant she
observed the applicant making gestures to the complainant indicating to her
not to say anything. Upon being questioned the complainant told her that her
stepfather was responsible for the mark on her face. The social worker
testified that there were no indications of any marks on the complainant’s
buttocks or her back.

[40] The applicant testified in his defence and denied ever sexually
assaulting or raping the complainant. He testified that the complainant started
to misbehave after the birth of her youngest sibling. The complainant had

become uncontrollable as she was stealing, drinking and associating with
people who had a bad influence on her. He testified that the complainant had
laid false charges against him after he chastised her for stealing chocolate at
the supermarket. He denied assaulting her on her face but admitted that he had
slapped her twice on the buttocks. He admitted assisting the complainant with
a school project on sex education with reference to a compact disc that they
viewed on a computer. He also used an encyclopaedia. It contained drawings
which dealt with the basics of sex education. The complainant’s mother was
present at the time. The applicant denied that he initiated the sex education so
as to sexually groom the complainant.

[41] He testified that in order to commit the alleged rape he would have had
to go over his wife, who was asleep in their bed, remove the complainant’s
sibling from the bed to get into bed with the complainant. He testified that in
the circumstances of the layout of their home, his actions would not have
escaped the attention of his wife who was a very short distance away from
where the alleged rape took place.

[42] According to the applicant he and his wife had contacted a social
worker after Ms V and her sibling had come to complain that they had been
beaten by their mother. When Ms H found out about this, she swore and
abused them and said that she would get back at them. He described in graphic
terms the animosity between Ms V’s family and him.

[43] The applicant also called Dr Deon Wagner as an expert witness, who
testified on the unusual behaviour of the complainant when examined by

Sister Mokoena and the lack of physical injuries to her vagina. His evidence
was largely speculative and deserves no further attention.

[44] I return to what I set out at the beginning of this judgment. It is
important that I emphasise the displeasure of this Court concerning the
manner in which the prosecution led the evidence of the complainant. Cases
of this nature require great care in preparation, presentation and leading of the
witnesses. Meticulous attention to detail, consultation, and understanding the
language of the complainant are paramount in the prosecution of sexual
offences. It is very important that a child witness, in particular, needs to be
allowed to state their version before clarification is sought by the prosecutor.
The prosecutor should not interrupt the flow of the witness’ testimony nor
pose leading questions to the witness. Not only does this affect the testimony
of the witness but may have an adverse impact on the accused who is entitled
to a fair trial in terms of s 35(3) of the Constitution.

[45] In criminal proceedings, the State bears the onus to prove the accused’s
guilt beyond a reasonable doubt. Furthermore, the accused’s version cannot
be rejected solely on the basis that it is improbable, but only once the trial
court has found on credible evidence that the accused’s explanation is false
beyond a reasonable doubt. (See: S v V 2000 (1) SACR 453 (SCA) at 455B.)
The corollary is that, if the accused’s version is reasonably possibly true, the
accused is entitled to an acquittal. It is trite that in an appeal the accused’s
conviction can only be sustained after consideration of all the evidence and
the accused’s version of events.

[46] In light of the apparent material contradictions and inconsistencies in
the evidence of the State, particularly those arising from the evidence of the
single witness, reasonable prospects of success exist. The merits of the case
not only constitute compelling reasons for the appeal to be heard, given that
they could result in the applicant being found not guilty, but they also
constitute special circumstances as the prospects of success are so strong that
the refusal of leave to appeal would probably result in a manifest denial of
justice.5

[47] The applicant’s challenge is two pronged. First, the applicant argued
that the regional court paid lip service to the cautionary rules when dealing
with the evidence of a single witness. This is apparent from the fact that the
evidence of the complainant was replete with material contradictions and
inconsistencies and should have been rejected by the regional court. Secondly,
the applicant argued that the applicant has reasonable prospects of success in
the appeal, which is based on the material contradictions and inconsistencies
in the trial together with the evidence of the foster mother, who testified at the
sentencing stage of the trial and cast doubt on the credibility of the
complainant.

[48] The applicant was convicted on the evidence of a single witness, which
in order to be sufficient to convict, must be clear and satisfactory in every
material respect. (See: S v Sauls 1981 4 All SA 182 (A).) It is trite that a court
will not rely on such evidence where the witness has made a previous
inconsistent statement, where the witness has not had a sufficient opportunity

5 Van Wyk v S, Galela v S [2014] ZASCA 152; [2014] All SA 708 (SCA); 2015 (1) SACR 584 (SCA) para
21.

for observation and where there are material contradictions in the evidence of
the witness. In Sauls it was held that there is no rule of thumb, test or formula
to apply when it comes to the consideration of the credibility of a single
witness. Rather, a court should consider the merits and demerits of the
evidence, then decide whether it is satisfied that the truth has been told despite
the shortcomings in the evidence.

[49] In respect of sexual assault cases, thankfully there is no cautionary rule.
In S v Jackson this Court aptly stated as follows:
‘In my view, the cautionary rule in sexual assault cases is based on an irrational and out-
dated perception. It unjustly stereotypes complainants in sexual assault cases
(overwhelmingly women) as particularly unreliable. 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.’6

[50] The only direct evidence implicating the applicant in this case was that
of the complainant. For such evidence to be accepted it must be clear and
satisfactory in all material respects. The regional court, in the evaluation of
the complainant’s evidence, stated that it was alive to the need to treat her
evidence with caution because she was 13 years and six months old at the time
of giving evidence and she had testified through closed circuit television with
the assistance of an intermediary.

[51] In Woji v Santam Insurance Company Ltd7, a civil judgment, this Court
stated that the question which the trial court must ask itself is whether the

6 S v Jackson 1998 (1) SACR 470 (SCA) at 476.
7 Woji v Santam Insurance Company Ltd 1981 (1) SA 1020 (A) at 1021.

young witness’ evidence is trustworthy. Trustworthiness depends on factors
such as the child’s power of observation, their power of recollection and their
power of narration on the specific matter to be testified. In each instance the
capacity of the particular child is to be investigated. Their capacity of
observation will depend on whether they appear intelligent enough to observe.
Whether they have the capacity of recollection will depend again on whether
they have sufficient years of discretion to remember what occurs while the
capacity of narration or communication raises the question whether the child
has the capacity to understand the questions put, and to frame and express
intelligent answers. There are other factors as well which the court will take
into account in assessing the child’s trustworthiness in the witness-box. Do
they appear to be honest – is there a consciousness of the duty to speak the
truth? Recently, in Matshivha v S this Court expressed itself as follows:
‘… the prosecution of rape presents peculiar difficulties that always call for greater care to
be given and even more so where the complainant is young.’8
This Court went on to cite an earlier judgment S v Vilakazi9 where Nugent JA
said the following:
‘From prosecutors it calls for thoughtful preparation, patient and sensitive presentation of
all the available evidence, and meticulous attention to detail. From judicial officers who
try such cases it calls for accurate understanding and careful analysis of all the evidence.’

[52] The objective evidence, namely, that of the nursing sister who
examined the complainant is at best for the State, neutral or at worst
exculpatory. I am willing to assume, in favour of the State, that it is a neutral
factor.

8 Matshivha v S [2013] ZASCA 124; 2014 (1) SACR 29 (SCA); [2014] 2 All SA 141 (SCA) para 24.
9 S v Vilakazi 2009 (1) SA SACR 552 (SCA) (2012 (6) SA 353; [2008] 4 All SA 396 para 21.

[53] An assessment of the complainant from the record suggests that she is
as mature and as intelligent as could be expected for her age. At times she
stood up to the attorney representing the applicant, asking him why he was
defending her stepfather. At other times she appeared petulant refusing to
answer questions and asserting sternly that the cross examiner and others were
at liberty to decide whether or not to believe her. Her evidence noted in para
28 above in explaining away a contradiction, namely that one forgets as one
is after all a child indicates a perceptive nature.

[54] It is very difficult from the record to obtain a clear picture of a
chronological sequence of events from the complainant’s evidence. The
evidence vacillates between the incidents occurring within days of each other,
possibly at one location, and being months apart and at different locations. I
am conscious of the fact that the charge sheet states that the charges in count
2 were committed on diverse occasions. The evidence of the complainant
should have given some kind of certainty as to the period of when the offences
were committed. One is unable with any degree of certainty to locate where
the incidents occurred, save perhaps for count three. This might have been
partially due to the manner in which she was led by the prosecutor, but it
cannot all be excused on that basis.

[55] In her statement to the social worker the complainant appears to have
been careful to make the time of the rape in the caravan coincide with the time
that the applicant would have been off work, namely the morning. The
statement was taken much earlier in time in relation to the incident than her
testimony. In her testimony she contradicted the statement, by saying that the
rape had occurred at night but could not say whether it was light or dark.

[56] In her statement to the social worker, the complainant had said that her
stepfather had been a little drunk when he raped her. In her testimony in court
she said she could not remember if he had been drunk at the time of the rape.

[57] This is not an instance where reliance can be placed on cases that justify
inconsistencies between statements made by witnesses and other to police
officers and viva voce evidence on the basis of a misunderstanding due to
language or cultural differences. The social worker was Afrikaans speaking
as is the complainant. The complainant never disavowed the statement she
had made to the social worker. The complainant never said that she was
misunderstood or that she had not said what the social worker had written.

[58] In relation to the reason for disclosing earlier that she had been sexually
abused, her evidence is unsatisfactory. This coincided with the various
reasons she gave for not raising the alarm when she was being raped: she was
afraid of the applicant, who was a martial arts expert, and that she had spoken
softly when she told him to leave her alone. When it was suggested to her that
her mother was within earshot, she gave a different reason: she wanted to keep
her family together and if she had told her mom that night or screamed, her
parents would have fought and she wanted to keep them together.
Nonetheless, she testified that the following morning she no longer cared and
told her mother. As shown in para 24 above, she followed this testimony by a
sudden realisation that they would be divorced one day soon. This too changed
and the reason provided, as set out at the end of para 24, is that the disclosure
about the rape appears to have been prompted by the discussion between her
stepfather and her mother asking her about what had occurred.

[59] When it was put to the complainant that her mother would have heard
when she said ‘los my!’ (let me go), she then said she was soft-spoken. When
questioned why she spoke softly, her reason was that she was a soft spoken
person. A soft spoken person is not prevented from speaking more loudly or
even shouting.

[60] The complainant’s evidence about whether her stepfather had removed
his pants when he allegedly raped her, demonstrates yet another inconsistency
and contradiction. She initially said that he removed his underpants. Under
cross-examination she said she could not see because it all happened under
the blankets.

[61] Her testimony that she had disclosed the rape to her mother, the
morning after the event, is in sharp contrast to Ms V’s evidence that she was
dead-set against her mother being told about sexual abuse. Ms V’s evidence,
as set out above, is emphatic and calls into question the veracity of the
complainant’s entire account of how and why she spoke to her mother the
morning after the alleged rape.

[62] The complainant had initially lied about whether she had stolen sweets
on more than one occasion. The inconsistencies and contradictions abound.

[63] One cannot discount that the disclosure to Ms V was prompted by the
latter. On Ms V’s own version, she had literally gone down on her knees
alongside the complainant in order to elicit the disclosure of sexual
molestation. Furthermore, all that was communicated, according to Ms V, was

sexual molestation and not rape. The complainant’s evidence vacillated
between communication of molestation only and of both molestation and rape.

[64] The ill-will between Ms V and her mother on the one side and the
applicant on the other, is a disturbing feature, when seen against what is set
out in the preceding paragraph.

[65] One cannot ignore that on Ms V’s version the complainant had initially
lied about the reason for the blue eye, which she later recanted. The question
that persists is when one can believe the complainant and when not.

[66] A further factor to be considered is that although the complainant said
she was not angry at her stepfather for the beating she received after the theft
of the chocolate, her evidence set out in para 30 above demonstrates that she
was deeply aggrieved. She had reason to implicate him. No wonder then that
the foster mother, who was called by the State, in aggravation of sentence, and
who had lived with her for a few years, testified that she had told her that she
had accused the applicant to get her own back at him. This evidence, of course
was not available to the magistrate before conviction. Neither was the
evidence of the foster mother that she bragged publicly about how she had
stolen sweets.

[67] I am not unmindful of the pressures of being in a court room, nor the
trauma attendant on victims of sexual assault. As can be seen from what is set
out above, I have taken great care to assess the evidence adduced in the court
below. The contradictions, the inconsistencies and the overall unsatisfactory
nature of the evidence by the complainant, cannot be excused.

[68] Counsel for the State was constrained to concede the many
inconsistencies and contradictions set out above. He argued, however, that
they were not material. On the contrary, they were essential to the proof of
elements of the offences with which the applicant was charged.

[69] For all the reasons set out above the regional court erred by convicting
the accused on evidence that was unsatisfactory in so many respects and
ultimately unreliable. The high court, in holding that the complainant was
consistent and frank and dismissing the appeal, erred. In the premises the
application for leave to appeal must succeed and so too the appeal.

[70] The following order is made:
1 The application for leave to appeal is granted.
2 The appeal is upheld and the order of the court below is set aside and
substituted as follows:
‘The appeal is upheld and the convictions and related sentences are set
aside.’

________________________
Y T MBATHA JA
JUDGE OF APPEAL

Dambuza JA (Navsa JA concurring)
[71] I have had the benefit of reading both the majority and minority
judgments. I am in agreement with the reasoning and the outcome in the

majority judgment. I consider it necessary to provide my own brief
observations regarding the evidence adduced and to comment on the standard
of proof in criminal cases. Proof beyond reasonable doubt can only be met
where reliable evidence sets out coherently the event(s) on which a charge is
founded. The version that emerges at the end of the State case must be
sufficiently coherent to avoid conflict with the constitutional rights guaranteed
to every person charged with a criminal offence. And while the compound
effect of imperfections in a child’s recollection and communication faculties,
together with the possible trauma of sexual violence must be taken into
account in the evaluation of the evidence in sexual assault cases, these factors
do not justify discarding the set standard of proof for conviction. An accused’s
constitutional rights both in relation to fair trial procedures as well as to a just
result cannot be discarded.

[72] As pointed out in the judgment of Mbatha JA, the manner in which the
prosecutor led the complainant’s evidence in this case was woefully deficient.
In my view it is difficult to make out a sufficiently cohesive version.
Confusing, suggestive interruptions by the prosecutor began shortly after the
start of the complainant’s evidence to derail the flow of the testimony,
particularly in relation to the fondling and sexual assault charges or
‘peutering’. It has been said that ‘whilst it is certainly true that the evidence
of children should not be approached on the basis of assumptions that all
children make false allegations, have poor memories and are highly
suggestible, it is equally true that a court may not and cannot convict unless it
is safe to do so, that is, unless there is proof beyond reasonable doubt’.

[73] While any expectation that the complainant would be able to recall
exact dates of each of the alleged incidents, or what she or the applicant was
wearing on each day, would be unreasonable for obvious reasons, the
deficiencies in her version described in the majority judgment, considered
comprehensively, revealed a less than satisfactory version. Self-
contradictions in her evidence, improbabilities and contradictions between her
evidence and that of other state witnesses, particularly Ms V and the social
worker, cannot be overlooked. Too many questions were left unanswered –
was Ms V the first person that the alleged conduct was reported to, as she
insisted? If so, the manner in which the report was extracted bears scrutiny as
was done in the main judgment. Or was the first report made to the mother?
If no report was made to the mother as Ms V insisted, did the rape which,
according to the complainant, led to a complaint to her mother, take place?
Did it take place in the evening as she testified or in the morning as reported
to the social worker? Did it take place at all? What exactly happened?

[74] When the report she had made to the social worker about the time the
rape had occurred was put to the complainant she did not disavow having
made such a statement about the time. There was no objection by the State in
relation thereto.

[75] The applicant was clear, in his evidence in-chief, about the bad blood
between him and Ms V and her mother, due, inter alia to past confrontations
and to a complaint he had lodged with a social worker in the past. He was
equally clear about it when he was cross-examined by the prosecutor:
‘Ek haa[t] hulle soos gif ek praat nie met hulle oor wat hulle doen nie’.

The deep seated animosity testified to by him was not contested by the
prosecutor in cross-examination. That animosity and Ms V and her mother’s
base motivation in acting against him cannot be discounted. It was put to the
applicant that his legal representative had not put to the complainant that she
had been influenced by Ms V and her mother. He, in turn, said he had
informed his attorney about it. He said the following:
‘Ek het vir Kobus van die begin af gesê dat die ma ons wil terugkry vir wat sy gedoen het
en dat die kinders later van tyd [complainant] beinvloed het dat sy kon skeef uigedraai het,
en toe later is Kobus dood’.

[76] The material deficiencies in the State’s case were never pertinently
considered by both the trial court and the high court. And they are by no means
trivial. Neither did the high court consider the evidence of the foster parent
(Mrs J) who, having been called as a witness by the State, after more than
three and a half years of fostering the complainant, expressed concern and
exasperation at her conduct, and testified that the complainant had told her
that she laid the complaint against the applicant to get back at him for hitting
her. According to her the complainant was deceitful and manipulative:
‘[Complainant] het n manier van dinge gehad, om ‘n ding skelm te doen, leuens te vertel’.
This last part of her evidence was tendered whilst she was being led by the
prosecutor, and not under cross-examination by the applicant’s legal
representative.

[77] References to dicta in which appeal courts have deferred to a trial
court’s assessment of evidence are unhelpful when the evidence on record in
an instant case, or lack of it, militates against the conclusions reached by a

trial court. In the end the relevant standard of proof was not met and the
application and appeal in my view must succeed.

N DAMBUZA
JUDGE OF APPEAL

Molemela JA (Mojapelo AJA concurring)
[78] I have read the judgment of my sister Mbatha JA (majority judgment).
Regrettably, I am unable to agree with both its reasoning and outcome. I
consider it appropriate to preface this dissent with two passages that put into
perspective the situation that typically confronts a child complainant in court.
In 2004, this Court said:10
‘Rape is a topic that abounds with myths and misconceptions. . . . For many rape victims
the process of investigation and prosecution is almost as traumatic as the rape itself.’11
(Footnotes omitted.)
For its part, the Constitutional Court remarked as follows in Director of Public
Prosecutions, Transvaal v Minister for Justice and Constitutional
Development and Others:12

10 S v De Beer, an unreported case of the SCA, case no 121/04 (12 November 2004).
11 Ibid para 18. See also S v Matyityi [2010] ZASCA 127; [2010] 2 All SA 424 (SCA); 2011 (1) SACR 40
para 10.
12 [2009] ZACC 8; 2009 (4) SA 222 (CC); 2009 (2) SACR 130 (CC); 2009 (7) BCLR 637 (CC) paras 105-
106.

‘[105] . . . If the cross-examination is conducted by the legal representative, the child will
be taken through his or her evidence in the most minute detail. The cross-examination may
bring out facts that were so grotesque that the child could never have imagined being forced
to recount them. The child will be taken to task for placing events, often months after they
had occurred, out of sequence and for not being able to remember important details
concerning the events. In this intimidating and bewildering atmosphere, the child
complainant is required to relive and reveal sordid details of the horror that he or she went
through.
. . .
[106] Those who know more about child behaviour from a professional point of view tell
us that children are reluctant to relate their sad and often sordid experiences to several
different people. As a result, repetition tends to heighten their sense of shame and guilt at
what happened to them.’ (Footnotes omitted.)
Any fair criticism of a child complainant’s testimony in a rape case ought to
bear these remarks in mind.

[79] I must at this juncture point out that one of my difficulties with the
majority judgment is that it sets aside the decision of the trial court without
having engaged with the credibility findings it made. This flies in the face of
the well-established principle that courts of appeal will not tamper lightly with
the trial court’s credibility findings.13 As an appellate court, it is essential that
this Court remain cognisant of the strictures on it pertaining to the factual
findings made by the trial court.14 Absent demonstrable, material
misdirections and clearly erroneous findings, we are bound by the trial court’s
factual findings.15 In this dissent, I state why I hold the view that the credibility
findings made by the trial court are beyond reproach.

13 R v Dhlumayo and Another [1948] 2 All SA 566 (A); 1948 (2) SA 677 (A) at 705-706. See also S v Francis
1991 (1) SACR 198 (A) at 204C-E.
14 Naidoo v The State (333/2018) [2019] ZASCA 52 (1 April 2019) para 46.
15 Ibid.

[80] Given the fact that the majority judgment is critical of several aspects
of the complainant’s evidence and concludes that it is unsatisfactory and
unreliable. It is therefore necessary to determine whether the credibility
findings made about her are justified. This entails scrutinising her evidence
with a view to assessing whether there are unexplained contradictions,
inconsistencies and improbabilities that have an impact on her credibility. Of
course I also address myself to the criticisms made in the majority judgment
and the submissions made on behalf of the applicant.

[81] The majority judgment criticised the complainant for ‘the
unsatisfactory manner in which the evidence was led’ and partially attributed
the blame to the poor execution of the prosecutorial function. In Director of
Public Prosecutions, Transvaal v Minister for Justice and Constitutional
Development and Others, the Court observed that questioning a child in a
court room environment requires skill which, undeniably, not all of our
prosecutors possess.16 It must therefore be borne in mind that due to the
complainant in this matter being a child witness, her narration of the events
largely depended on the guidance of the prosecutor pertaining to the aspects
of evidence on which she was expected to testify.

[82] It is true that the prosecutor adduced the evidence of the complainant
in a haphazard fashion, constantly interrupting her and directing her to other
scenes before exhausting the questioning in relation to a particular aspect.
While this was indeed a poor reflection on her prosecutorial skills, we need to
be careful not to, in the process of determining whether the requisite standard

16 Paragraph 104.

of proof has been met, throw the proverbial baby of credible evidence out with
the bathwater. Of significance is that this court, being a court of appeal, has
the benefit of an overall conspectus of the transcribed evidence. It is therefore
in as good a position as any other court to determine the sequence of events.

[83] Although the background facts have been sketched out in the majority
judgment, it is necessary to reiterate aspects that require a further elucidation.
This will unfortunately necessitate a repetition of the salient facts that form
the basis of this dissent. My understanding of the complainant’s evidence is
that she was a victim of historical sexual abuse, the nature whereof will
become clear shortly. In a nutshell, her evidence is that her stepfather, the
applicant, sexually abused her during 2008 and 2009, starting from the time
when the family lived at Trompsburg, continuing after their relocation to
Bloemfontein. In relation to count one and two, she testified that the there
were various instances during which the applicant asked her to touch his penis.
Furthermore, the applicant would come into her bedroom and start touching
her. During one of these encounters the applicant inserted his finger in the
complainant's vagina and made her touch his penis. She was unsure of the
exact dates on which these incidents happened.

[84] The complainant testified that the incident in relation to count 3
happened in the family home in Bloemfontein. The family comprised the
applicant, his wife (the complainant’s mother), the complainant and her
younger sister born on 19 June 2006. The family home in Bloemfontein was
a caravan that was attached to a small adjoining room. Two beds stood within
the caravan and one in the adjoining room. A cupboard was put at the door
that separated the caravan from the adjoining room, as a result of which the

door could not close. The applicant and complainant's mother slept in the
caravan section, which was used as the main dwelling by the family. The
complainant slept in the adjoining room. It was here that the applicant, on a
specific night, got into the complainant’s bed, lowered her pyjama pants and
penetrated her with his penis. She stated that it was painful when the applicant
penetrated her in that manner. She softly uttered the words ‘los my uit’. The
applicant was angered by her reaction and went back to his bed, where he
joined the complainant’s mother.

[85] The complainant testified that she later overheard the applicant
mentioning her name to her mother. The next morning, while she and her
mother were in the bathroom, she informed her that the applicant had hurt her.
When her mother asked her how he had hurt her, she told her that the applicant
had inserted his penis into her private parts. Her mother undertook to confront
the applicant about it but that never happened. She could not remember the
exact date of this incident.

[86] The evidence of the complainant portrays continual sexual abuse that
occurred over a period of time. This may be the reason for her inability to
pinpoint the precise timeline for the occurrence of the sexual violations
described in the charge sheet. This appears to be the reason why the charge
sheet fixed no dates for the various sexual violations beyond a reference to the
years 2008 and 2009. I did not understand the complainant’s evidence to be
that all the incidents happened within days, as suggested in the majority
judgment. The complainant’s response of ‘’n paar dae daarna’ must be seen
in context. It was in response to a vague question posed by the prosecutor.

The sequence of events is captured in the following exchange between the
prosecutor and the complainant is important:
‘So can you tell us which comes first, when did he do this first and then this and that? ---
Heel eerste het hy vir my verduidelik van seks. Daarna toe begin hy vat aan my privaatdele.
Hm-Hm. --- Toe het hy my eendag verkrag.’(Own emphasis.)

[87] In her narration of the events, the complainant was consistent that the
incident concerning the theft of the chocolate happened after the rape that
constitutes count three. She attributed the bruise (blue eye) that she sustained
to the fact that the applicant was wearing a ring when he slapped her in the
face. It is noteworthy that despite all the trauma exhibited by the complainant
during the proceedings, she was able to give her account of events in relation
to all the charges. Her version, with all its imperfections, sticks together
despite her testimony not having been led in a strict sequence. I was unable to
identify any deficiency in her version that could warrant its outright rejection.

[88] The peculiar difficulties inherent in the evaluation of evidence adduced
in rape cases and the requisite careful analysis of all evidence by judicial
officers are well-articulated in a legion of court judgments. The question is
whether functionaries, including courts, are demonstrably alive to that aspect
in their analysis of evidence.

[89] The warning sounded by this Court in S v Shilakwe17 comes to mind. In
a nutshell, it boils down to this: once a detailed and critical examination of all
the components of evidence has been done, a court must step back and observe
the mosaic of evidence as a whole. Acknowledging that doubts about one

17 S v Shilakwe [2011] ZASCA 104; 2012 (1) SACR 16 (SCA) para 11.

aspect of the evidence led in the trial may arise when that aspect of evidence
is viewed in isolation, the court pointed out that such doubts may be set at rest
when that aspect of evidence is evaluated again together with all the other
available evidence.18 In S v Chabalala,19 this Court cautioned that ‘a trial court
(and counsel) should avoid the temptation to latch on to one (apparently)
obvious aspect without assessing it in context of the full picture presented in
evidence’.

[90] In S v S,20 the Zimbabwean Supreme Court cautioned against
approaching cases ‘with a single-minded eye towards seeking corroboration’,
as one could, as a result of that approach, lose sight of the reasons for seeking
it. It aptly pointed out that what was needed was a proper analysis of the
possible shortcomings in a particular child’s evidence, in which one applied a
certain amount of psychology and remained aware of recent advances in that
discipline. I share the same sentiments. Various experts in the field of child
psychology and victimology give insight into the numerous challenges that
sexual abuse presents to its victims. The following remarks are apposite:
‘It is not reasonable to expect a trauma survivor – whether a rape victim, a police officer
or a soldier – to recall traumatic events the way they would recall their wedding day. They
will remember some aspects of the experience in exquisitely painful detail. Indeed, they
may spend decades trying to forget them. They will remember other aspects not at all, or
only in jumbled and confused fragments. Such is the nature of terrifying experiences, and
it is a nature that we cannot ignore.’ 21

18 See S v Van der Meyden, cited and approved in S v Cornick and Another [2007] ZASCA 14; [2007] 2 All
SA 447 (SCA) at para 42; S v Hadebe and Others 1998 (1) SACR 422 (SCA) at 426E-H.
19 S v Chabalala 2003 (1) SACR 134 (SCA) para 15.
20 S v S 1995 (1) SACR 50 (ZS) at 59H-I and 60A-C.
21 J Hopper and D Lisak Why Rape and Trauma Survivors have Fragmented and Incomplete Memories Time
Magazine (2014). Biographies as provided in the article: ‘James Hopper, Ph.D., is an independent consultant
and Instructor in Psychology in the Department of Psychiatry at Harvard Medical School. He trains
investigators, prosecutors, judges and military commanders on the neurobiology of sexual assault. David

[91] In Bothma v Els,22 the Constitutional Court aptly stated as follows:
‘[47] Child rape is an especially egregious form of personal violation. As law reports
from other jurisdictions show, it is sadly found in all social classes in all parts of the world.
It is widespread, if under-reported, in South Africa. By its nature it is frequently
characterised by secrecy and denial. . . . Because it often takes place behind closed doors
and is committed by a person in a position of authority over the child, the result is the
silencing of the victim, coupled with difficulty in obtaining eye-witness corroboration.
Complainants should be encouraged rather than deterred when, breaking through feelings
of fear and shame, they seek to bring to light past abuses against them.
. . .
[50] The Supreme Court of Appeal accepted that rape had the inherent effect of
rendering child victims unable to report the crime, sometimes for several decades, and that
the policy was not to penalise them for the consequences of their abuse by blaming them
for the delay. . . .
. . .
. . .
[53] A similar approach was adopted by the Supreme Court of Appeal in S v Cornick.
In that matter the rapes for which the applicants had been convicted occurred in 1983, some
nineteen years before the complainant laid charges against them. The complainant was then
a child of fourteen and the applicants some four years older. . .
[54] Upholding the convictions, Lewis JA stated that it was not improbable that a young
woman who had tried to bury memories of a traumatic event for many years would not
appreciate until her mid-twenties, at a time when discussion and publicity about rape had
become common, the full extent of what had happened. . . .’23 (Footnotes omitted.)

[92] Against the backdrop of the authorities mentioned in the preceding
paragraphs, the question is whether the trial court’s evaluation of the evidence

Lisak, Ph.D., is a forensic consultant, researcher national trainer and the board president of 1in6, a non-profit
organisation that provides information and services to men who were sexually abused as children.’
22 Bothma v Els and Others [2009] ZACC 27; 2010 (2) SA 622 (CC); 2010 (1) SACR 184 (CC); 2010 (1)
BCLR 1 (CC).
23 Ibid.

passes muster. In my view, it does. It is true that the complainant was a single
witness to the sexual assault and the rapes. Her evidence therefore had to be
approached with caution. It behoves our courts to bear in mind that the
exercise of caution when assessing evidence, should not be allowed to
displace common sense.24 It is clear from the detailed judgment of the trial
court that it was mindful of the cautionary rule that was applicable to the
complainant’s evidence as a single, child witness. In dealing with the
complainant’s evidence, it also dealt with the contradictions between her
evidence and that of other state witnesses and the inconsistencies. Its
application of the cautionary rule is demonstrable in its detailed judgment. I
therefore cannot agree with the applicant’s contention that the trial court paid
lip service to the cautionary rule.

[93] The majority judgment bemoaned the fact that the prosecutor
sometimes put leading questions to the complainant, which indeed happened
on a few occasions. It25 states that the prosecutor started by suggesting that
the complainant still had to testify about being raped, well before the
complainant had alluded to any rape. With respect, this observation is not
borne out by the record. The record clearly shows that the complainant
testified about being raped without any leading question being posed by the
prosecutor.

24 S v Artman and Another [1968] 3 All SA 408 (A); 1968 (3) SA 339 (A) at 341. See also A Kruger
Hiemstra’s Criminal Procedure (May 2019, online) at 24-41, where the following is stated: ‘Today, child
evidence is approached with subtlety and sensitivity, not formally and stereotyped according to the standard
cautionary rule but with an acknowledgement of the specific circumstances of each case. Presiding officers
should have a particular awareness of the nature of the case and the attributes of the witness. No fixed rule
exists any longer.’
25 Majority judgment para 11.

[94] At the initial stages of her testimony, the complainant was asked why
she had attended the court proceedings. Her response was that she was there
to testify about rape. It was then that the prosecutor invited her to testify about
‘the whole episode from 2008.’ The record shows that with specific reference
to count three, the complainant in her own narration, stated that the applicant
raped her. Thereafter, the prosecutor followed up by posing questions aimed
at eliciting her understanding of rape. As no leading question was posed by
the prosecutor in relation to the two rape charges, the prosecutor’s approach
in relation to those charges survives scrutiny.

[95] In assessing the complainant’s evidence, it is important to bear in mind
that the complainant was traumatised by the sexual assault and rape. She
became emotional on several occasions during the proceedings in the trial
court, which at some stage necessitated the adjournment of those proceedings.
The majority judgment’s observation that the complainant ‘appeared petulant
refusing to answer questions’ pays little regard to the complainant’s trauma.
The complainant was forthright in mentioning that she was trying to block out
the memories of the historical sexual abuse she suffered at the hands of the
applicant from her mind. This is not an uncommon reaction from victims of
child rape.26 Consideration must also be paid to the stress the complainant
endured during the proceedings.27

[96] The line of cross-examination followed by the defence counsel is also
a consideration here. It was clear that the complainant was cross-examined

26 S v Cornick note 18 above.
27 See K Müller ‘The Judicial Officer and the Child Witness’ (2002) 148. Also see J J A Key ‘The Child
Witness: The Battle for Justice’ (1988) 241 De Rebus 54 at 55.

with the sole purpose of discrediting her, as the applicant’s version was not
put to her for comment. Any seasoned legal practitioner can attest to the
difficulties ascribable to the posing of compound questions to a witness,
which obviously become exacerbated when the witness in question is a child.
A number of compound questions were put to the complainant, which made
it difficult for her responses to be as effective as those of an adult could have
been.

[97] The defence counsel asked the same questions repeatedly. He put to the
complainant that the medical report (J88) did not support her version of having
been raped28 or sustaining the injury to her eye area. The prosecutor, who was
obviously in possession of the J88 during this questioning, did not object to
that line of questioning. It was only much later that the prosecutor objected on
the basis that the line of questioning on that aspect was not borne out by the
record. This caused the court to express its displeasure at the manner in which
a misleading statement relating to the medical evidence had been put to the
witness. Counsel for the applicant even went to the extent of asking the
complainant whether the rape was traumatic for her. The following exchange
between counsel and the complainant is instructive:
‘Nou vertel gou-gou vir ons en die hof dat ons kan verstaan, was hierdie verkragting vir
jou baie traumaties? --- Ja
Hoekom was dit vir jou erg gewees? --- Want dit is, want hy het jou verkrag en hy is nog
getroud met jou ma ook, hy moet jou pa wees, nie ‘n flippen ou of pa wat jou verkrag nie.’

28 This seems to have been based on the fact that the medical report stated that she had not sustained injuries
to her genitalia. The applicant’s expert witness, Dr Wagner, placing reliance on the hymen morphology of a
12 year old, testified that it was unlikely that the complainant had been vaginally penetrated as the hymen
was still intact. This evidence was speculative. A study done by experts has shown that using hymen
morphology to determine sexual history is not reliable. See R Mishori et al ‘The little tissue that couldn’t –
dispelling the myths about the Hymen’s role in determining sexual history and assault’ (2019) 16(1)
Reproductive Health 74.

[98] The majority judgment29 states that the complainant had different
explanations for not having previously told her mother that the applicant had
been sexually abusing her. In relation to the complainant’s testimony to the
effect that she was soft spoken and thus spoke softly when she told the
applicant to leave her alone, the majority judgment reasons that ‘[a] soft
spoken person is not prevented from speaking more loudly or even
shouting’.30

[99] With respect, I did not understand the complainant’s evidence to be that
by uttering the words ‘los my uit’ softly during the rape, she was trying to get
the attention of the mother. This criticism fails to take into account that the
complainant asserted that she had kept her historic sexual abuse a secret
because she was scared of the applicant and also wanted to keep the family
together. The reasons advanced can co-exist and are not mutually exclusive at
all. As I see it, none of the answers she gave are inconsistent with the other.
They merely reflect a further elaboration, as opposed to being a vacillation or
contradiction.

[100] A careful reading of the complainant’s evidence shows that the essence
of her explanation for not telling her mother about any of the incidents of
sexual abuse before the last incident of rape is twofold. Both reasons were
disclosed in her evidence-in-chief. First, she was scared of the applicant, a
martial arts expert who had practically silenced her by telling her that the
incidents were not to be disclosed to anyone (‘dit bly tussen ons’). The
applicant’s prowess in martial arts is an aspect that was attested to by Ms V

29 Majority judgment para 59.
30 Ibid para 60.

in her testimony. This evidence was never disputed. The complainant had
witnessed the numerous fights between her mother and the applicant. Clearly,
her fear was not unfounded.

[101] Second, she did not want to ruin her parents’ relationship. She was
aware that there was alcohol abuse within the family which led to fights
between her parents. According to her, her parents hurt each other during
those fights.31 Her apprehension about her disclosure leading to a
disintegration of her parents’ marriage was reasonable. Under those
circumstances, her failure to scream or to protest loudly was a neutral factor
that did not detract from her plausible explanation.

[102] It must be borne in mind, in relation to the rape in count three, that this
was something the complainant had not experienced before. This time around,
the applicant had penetrated her with a penis. The complainant’s version is
that she found the experience extremely painful and traumatic to the point that
she told the applicant to leave her alone. Under cross-examination, when
asked why she considered that particular rape to be traumatic, she explained
that as someone who was married to her mother, the applicant was expected
to protect her and not rape her. It appears that overhearing what she believed
to be a discussion about her between her mother and the applicant is what
prompted her to open up to her mother about the rape the next morning. Given
the general tenor of her evidence, it is not farfetched to infer that this may well
have triggered the hope that if she confided in her mother about the incident,
she would stand up for her, as most mothers often do. In the complainant’s

31 The complainant’s evidence pertaining to the alcohol abuse within her household and the fights between
the applicant and her mother was corroborated by a neighbour, Ms H.

own words, she decided to get the matter ‘off her chest’. Under those
circumstances, I am unable to see anything wrong with the 12-year old
complainant eventually deciding to take a leap of faith by informing her
mother about how she had been violated by the applicant.

[103] During cross-examination, the complainant was confronted with the
contradiction of having previously stated, in a statement made to the police
that the incident happened in the morning. Notably, the trial court found that
a basis for cross-examining her about the statement in question had not been
laid by the cross-examiner. Furthermore, the statement in question was not
handed up as an exhibit. The circumstances under which the statement was
obtained are not evident from the record. We do not even know whether she
signed that statement. Under such circumstances, I see no basis for concluding
that this is an instance where reliance cannot be placed on cases that justify
inconsistencies between statements made by witnesses to police officers and
evidence on the basis of a misunderstanding due to language or cultural
differences.32

[104] Barring minor contradictions relating to the applicant having been clad
in his pyjamas before the event and whether the room was illuminated or not,
the complainant remained consistent about how the rape was executed and
about the conversation with her mother in the bathroom, during which she
informed her about her ordeal. These minor contradictions do not, in the
context of this matter, serve to discredit the complainant as a witness, nor do
they
render
her
evidence
unsatisfactory.
While
they
constitute

32 Majority judgment, para 58.

‘shortcomings’33 in her evidence, they do not impinge on her honesty.34 A
feature of her evidence that, in my view, strongly attests to her honesty and
reliability is that even in the heat of cross-examination, she did not try to
portray the applicant as a monster. She openly professed her love for both her
mother and the applicant and acknowledged that she missed them.

[105] Another important consideration anent to the assessment of the
complainant’s contradictions is that she was only 11 years old when the
applicant started to sexually abuse her. She was 12 years old when the sexual
abuse was revealed. By the time she testified, she was 13 years old. The very
fact that the sexual abuse was perpetrated by her own parent and the time lapse
since the offences were committed are aspects that must be taken into account
in order to properly assess the reasonableness of any discrepancies in the
complainant’s evidence. Given the facts of this matter, the complainant’s
inability to pinpoint the exact date and the lighting in the room when the
offences were committed are not material contradictions.35 Thus, they ought
not to lead to a rejection of her evidence as fabrication.36

[106] As stated before, the complainant stated that her parents often
quarrelled and fought. This was corroborated by Ms H, who was a friend to
the complainant’s mother. Significantly, the friendship between Ms H and the
complainant’s mother was confirmed by the applicant. That there was no bad
blood between these friends is evident from the fact that Ms H testified that

33 S v Sauls and Others.
34 S v Oosthuizen [1982] 4 All SA 245 (T); 1982 (3) SA 571 (T) at 516A-B; S v Mafaladiso en Andere [2002]
4 All SA 74 (SCA); 2003 (1) SACR 583 (SCA) at 594A-F.
35 S v Mkohle [1990] 3 All SA 1087 (A); 1990 (1) SACR 95 (A) at 98F-G.
36 Compare Mocumi v The State (2015) ZASCA 201 para 20.

their friendship continued beyond the applicant’s arrest on rape charges. This
was not disputed by the complainant’s mother in her evidence. The
continuation of that friendship beyond the applicant’s arrest dispels any notion
of bad blood between the two families. With respect, the majority judgment’s
finding that there was animosity between the two families failed to pay due
regard to this part of the evidence. It also failed to take into account that ill-
will as a basis for Ms H being part of the conspiracy was never put to her for
comment.

[107] The majority judgment made specific reference to the fact that the beds
were two to three metres apart, noting that the applicant would have to move
the younger sister who slept with the complainant, in order for him to get to
the complainant. Counsel for the applicant considered the proximity of the
beds as an indication of the improbability of the account given by the
complainant regarding how the rape occurred. This contention fails to take
cognisance of three important considerations. First, there was a cupboard
standing at the doorway, as a result of which the door between the caravan
and the adjoining room could not be closed. The applicant drew a sketch of
the layout. As correctly observed by the trial court, the applicant’s own words
regarding the layout of the caravan and the adjoining room was that it allowed
the children to get a measure of privacy. Second, the complainant testified
about the misuse of alcohol in the family. This evidence stands uncontested.
Third, the complainant’s evidence that there was another bed in the caravan
section was not disputed. It was only in his evidence in chief that the applicant
stated that dishes were put on that bed. A crucial piece of evidence from which
it can be inferred that the complainant did not always sleep with her younger

sister on her bed is embodied in the following exchange between the
applicant’s counsel and the complainant speaks for itself:
‘Se gou vir my waar het jou klein sussie geslaap altyd? ---Daar was nog ‘n bed in my ma-
hulle se kamer.
Is dit nie waar dat jou klein sussie nie alleen wou slaap nie en dat sy elke aand by jou
geslaap het nie? --- Party aande wou sy by my slaap, ja.
Nou watse werk doen oom Y -- Hy is ‘n bestuurder.’

[108] While on this aspect of the close proximity of the beds in the caravan
occupied by the family, sight should not be lost of the unequal society that
survives side by side in South Africa. A huge section of the community lives
in abject poverty in crowded informal settlements where families cohabit in
cramped shacks as small as the caravan in which the complainant lived with
her family. As pointed out in Bothma, child rape is found in all social classes,
is widespread in this country and no community is spared.37 The close
proximity of beds is a common feature in many households. Such is the reality
of life in South Africa. It is thus not unheard of that sexual abuse of a child is
perpetrated in their own homes and in the presence of someone who is in a
position of authority to the child in question.38 Unfortunately, in some of these
instances, the incidents are perpetrated by the partners of the persons fulfilling
a parental role to the child.39

[109] The majority judgment is critical of the circumstances in which the
complainant disclosed the sexual assault and rapes to Ms V. The complainant
testified about this aspect in her evidence-in-chief. Her evidence was not

37 Bothma para 46.
38 The Director of Public Prosecutions, Grahamstown v Mantashe [2020] ZASCA 5 para 15.
39 Ibid.

swayed by cross-examination. Further details concerning the disclosure of the
sexual abuse were provided by Ms V.

[110] At the time of the disclosure, Ms V was 17 years old, while the
complainant was 12 years old. Ms V’s younger sister, T, was a friend of the
complainant. The essence of Ms V’s evidence is this. Ms V and her family
resided at the same caravan park where the complainant lived with her family.
She was aware of a rumour doing the rounds at the caravan park, the essence
of which was that the complainant was molesting the complainant.

[111] Ms V had last seen the complainant on Thursday afternoon. Seeing the
complainant with a blue eye on Friday morning prompted her to ask her how
she had sustained it. The complainant initially told her that she had sustained
the injury at school. With the knowledge that the complainant did not have a
blue eye on Thursday afternoon, she told the complainant that she knew that
she was lying and asked her to tell the truth. The complainant then told her
that she sustained that injury when the applicant slapped her. The complainant
then went to school.

[112] Ms V then phoned her mother, Ms H, to notify her about the fact that
the complainant had been assaulted by her father and had sustained a blue eye.
Ms H in turn notified the caretaker of the caravan park, as a result of which
the social worker was summoned. On the complainant’s return from school,
Ms V approached her and pertinently asked her whether the applicant was
molesting her. The complainant answered in the affirmative and told her about
the sexual assault and rapes. She informed the complainant that the social
worker was on her way and that she would have to repeat the same

information. The complainant cried and pleaded with her not to tell her mother
or the social worker about what she had told her. She encouraged the
complainant to confide in the social worker. Upon the social worker’s arrival,
the complainant repeated her experiences to her and this ultimately led to the
applicant’s arrest.

[113] Ms V’s evidence that the complainant spoke up about her sexual assault
and rape was corroborated by Ms H, who was a friend to the complainant’s
mother. The social worker, too, confirmed that she was summoned to the
complainant’s home, where the complainant disclosed her the sexual assault
and rape to her. The complainant’s revelation of sexual assault and rape is also
evident from the history recorded by the nurse in the J88, which should be
accepted as objective evidence. Notably, the social worker’s report also
alluded to both the rape and molestation. It is therefore erroneous to state that
the complainant’s evidence ‘vacillated between communication of
molestation only and of both molestation and rape’.

[114] The majority judgment concluded that ‘all that was communicated,
according to Ms V, was sexual molestation and not rape’. It also remarked
that it was ‘strange’ that Ms V had, under cross-examination, stated that she
had not seen a blue eye on Ms V’s face on the morning following the chocolate
incident. With respect, these conclusions are not borne out by the record. Ms
V explained that when she saw the complainant on the day of the chocolate
incident, she had no injury. She noticed the blue eye on the morning following
the chocolate incident. It is evident that cross-examination on this aspect
commenced with the applicant’s attorney posing a compound question to Ms
V referring to both molestation and rape.

‘Ek wil net seker maak. [X] het vir jou vertel dat sy is verkrag. Hy betas haar. Het sy nog
iets vertel? [Translation: I just want to make sure. [X] told you that that she was raped. He
molested her. Did she tell you anything else?] --- Sy het net vir my daai vertel en toe se sy
dat [Y] slaan haar baie’. [Translation: She only told me about that/those and then she told
me that [Y] beats her a lot]. (My emphasis.)

[115] He thereafter asked a series of other questions on this aspect. The
questioning on that aspect concluded with Ms V repeating a question of the
cross-examiner. The trial court interjected by asking her whether she agreed
with the cross-examiner’s proposition. She answered in the negative. It is clear
that Ms V did not, at any stage, contradict herself on that aspect. She
consistently stated that she had not seen the blue eye on the day of the
chocolate theft but had noticed it the next day when the complainant was on
her way to school.

[116] The existence of the blue eye on the Friday in question was
corroborated by three witnesses, Ms V, Ms H and the social worker. The nurse
who examined the complainant two weeks after the incident recorded in the
J88 that the complainant had informed her that her father had assaulted her,
but that the bruise on her face had healed.

[117] The majority judgment states that the ‘ill-will between Ms V and her
mother on the one side and the applicant on the other, is a disturbing feature’
when consideration is paid to the fact that Ms V had literally gone down on
her knees alongside the complainant in order to elicit the disclosure of sexual
molestation.40 It was also critical of the fact that, before telling Ms V that her

40 Majority judgment para 65.

the applicant had assaulted her, the complainant had initially said she had
fought at school. Sight must not be lost of the fact that the complainant had,
just the previous night, been severely beaten by the applicant. The lie could
have been because she feared that the applicant would assault her again if he
learnt that she had disclosed the assault to outsiders. Viewed in the context of
the whole evidence, the lie she initially told ought not to discredit the
complainant as a witness. It is trite that the fact that a witness has lied about
an aspect of evidence does not, without more, lead to the rejection of that
witness’ entire evidence.41

[118] Another significant aspect here pertaining to her only confessing about
sexual abuse after being probed is this. Child rape is, by its nature, ‘frequently
characterised by secrecy and denial’.42 The complainant’s initial reluctance to
speak out about the sexual assault and rape may simply have been due to the
fact that she was not yet ready to reveal everything to an outsider.43 The strong
bond the complainant had with the rest of her family is evident from the
record. The complainant repeatedly stated that she did not want to ruin her
parents’ relationship. Given those strong family ties, it is therefore not
surprising that she would not readily disclose her home situation to an
outsider.

[119] The dilemma the complainant faced after her confession, expressed
through her tearful pleas to Ms V not to tell her mother or the social worker is
not difficult to understand. As correctly acknowledged in a plethora of

41 See S v Oosthuizen, note 34 at 576G.
42 Bothma para 46.
43 Compare Hewitt v S [2016] ZASCA 100; 2017 (1) SA 309 (SCA).

judgments, relating a rape incident to different persons entails reliving the
encounter and is often traumatic for the victim.44 It is not unusual for someone
who is traumatised to cry. In this matter, the complainant cried several times
during the proceedings and explained that she found the incident traumatic
and was trying to block it out of her memory. Her tears, after informing Ms V
about her ordeal must be seen against that background. That she cried even
more when she was told that her mother and the social worker were going to
be informed is also not hard to explain in the context of evidence that is seen
as a mosaic.

[120] The shame and guilt that is often experienced by child rape victims at
the thought of relating and repeating the sad and sordid details of their sexual
abuse to others was acknowledged in Director of Public Prosecutions,
Transvaal.45 Ms V was an outsider. So, too, was the social worker. But
perhaps a bigger challenge for the complainant was the realisation that her
mother was about to find out that she had informed an outsider about a closely
guarded family secret. Given the strong family ties, she was, in all probability,
ashamed to face her mother because she considered her disclosure to be a
betrayal of her family.46 She obviously realised that her revelation would also
show that her mother had failed to intervene. The contradiction between the
complainant’s evidence and that of Ms V on whether she had informed her
mother about the sexual assault and rape must therefore be viewed in that

44 See Director of Public Prosecutions, Transvaal note 12 above.
45 Ibid.
46 E H Weiss and R F Berg ‘Child Psychiatry and Law – Child Victims of Sexual Assault Impact of Court
Procedures’ (1982) 21(5) Journal of the American Academy of Child Psychiatry 513 at XXX. In this article
the authors opine that the most common reaction of the victims of child rape is ‘deep guilt feelings’ about
‘the trouble they caused the family’. According to them, the emotional reactions suffered by those victims
are often prolonged or intensified whenever legal proceedings are involved.

light. On this aspect, a major consideration is that the complainant’s mother
did not refute the social worker’s evidence regarding her failure to deny that
the complainant had told her about the rape. In my view, that contradiction
can therefore not impact so adversely on the quality of her evidence that it
renders her entire testimony as unreliable or untruthful.47 On the contrary, her
initial reluctance to disclose the physical assault, her uneasiness about
disclosing the sexual assault and rape, and her reaction after confessing to her
are aspects that serve to show her innocence, thereby dispelling any notion of
a conspiracy. In my view, there is simply no room for regarding her reaction
as bolstering the applicant’s claim of a conspiracy to falsely implicate him.48

[121] It remains to consider whether the applicant’s version, weighed against
the complainant’s credible account, was reasonably possibly true. In his
evidence, the applicant asserted that the complainant’s averments were
fabricated. He stated that Ms H and Ms V had conspired with her to falsely
implicate him. He alluded to several aspects which collectively constituted a
motive for falsely implicating him. He described the complainant as a
‘problem child’ who resisted discipline. This problem started because the
complainant was unable to adjust to having a sibling after the birth of her
younger sister. He testified that since the complainant started associating with
Ms V and her sister, her ill-discipline worsened, as she started to emulate their
bad behaviour by smoking and drinking. Due to this bad behaviour, he had
barred the complainant from associating with them. The complainant, Ms V

47 Naidoo v The State (333/2018) [2019] ZASCA 52 (1 April 2019) para 51.
48 See S v Cornick, note 18 above. In that matter, the complainant had not told her own parents or
grandparents, with whom she was staying, about the rape. The complainant in that matter was 14 years old
at the time of the rape and reported the matter to the authorities about 19 years after the incident. The secrecy
about the rape and the delay in reporting it were not considered to have any bearing on her credibility.

and her sister were unhappy about his intervention. This, according to the
applicant, was one of the reasons why the complainant had decided to conspire
with Ms H’s family against him.

[122] He further testified that Ms H also had a personal grudge against him
on account of him having agreed to take Ms V and her sister to the police
station and thereafter to a social worker, to lodge a complaint of assault against
her (Ms H). A couple of weeks after this incident, the complainant, with the
collaboration of Ms H’s family, fabricated false allegations of sexual assault
and rape against him. When asked by his counsel about the blue eye allegedly
sustained by the complainant, he stated that the complainant was always
involved in fights at school and came home bruised. He stated that when her
mother asked her about it, she had said that she fought at school. All of this
was never put to the complainant for her comment. I find it odd that his
counsel would leave this crucial aspect out of his cross-examination when he
had been meticulous enough to question the complainant about the fact that
she had stolen sweets when she was much smaller. My conclusion is that the
reason why all these aspects were not put to the complainant during cross-
examination was simply because they never happened.

[123] The applicant admitted that when the social worker suggested that the
complainant step outside so that they could discuss the matter in private, he
had signalled to the complainant to refrain from disclosing anything to the
social worker, by putting his finger on his lips. His explanation for doing so
was that he did not want the complainant to be taken away from their home.
The explanation proffered makes no sense, given that the complainant was,

on the applicant’s version, a “problem child” who resisted discipline and had
even gone to the point of making false allegations against him.

[124] One would have expected that if the complainant had indeed been a
difficult child, the applicant would, long before this incident, have invited the
social worker to his home for an intervention, just like he had done when he,
on Ms H’s request, summoned a social worker to her home. He had seen for
himself that in that instance, the social worker had intervened without taking
Ms H’s children away from their home.

[125] As regards the applicant’s assertion that the complainant’s mother had
told him that the complainant had returned home ‘bruised and bloodied’, it is
difficult to imagine a caring mother not going to her child’s school to
investigate why she was coming home in that state or at least asking for
assistance from a social worker who had already assisted the family when it
faced financial hardships. On probabilities, the only reason why the applicant
signalled to the complainant to keep quiet when she was walking out with the
social worker was to discourage her from revealing his deeds, knowing that
they constituted serious offences.

[126] This brings me to the majority judgment’s acceptance that Ms H and
her family bore a grudge against the applicant and that this may be behind the
conspiracy of falsely implicating the applicant. In my view, this conclusion
fails to take into account that the nub of the applicant’s version about why
each family member bore a grudge against him was not put to Ms V and Ms
H for comment. The existence of the so-called conspiracy was also not put to
the complainant for her comment. The applicant’s failure to put his version to

the complainant, Ms V and Ms H for comment is not without consequences,
as it related to the crux of his defence.

[127] The legal implications of a failure by a party cross-examining a witness
to put up their version to witnesses who have testified were articulated by the
Constitutional Court as follows in President of the Republic of South Africa
and Others v South African Rugby Football Union and Others:49
‘[61] The institution of cross-examination not only constitutes a right, it also imposes
certain obligations. As a general rule it is essential, when it is intended to suggest that a
witness is not speaking the truth on a particular point, to direct the witness’ attention to the
fact by questions put in cross-examination showing that the imputation is intended to be
made and to afford the witness an opportunity, while still in the witness box, of giving any
explanation open to the witness and of defending his or her character. If a point in dispute
is left unchallenged in cross-examination, the party calling the witness is entitled to assume
that the unchallenged witness’s testimony is accepted as correct. This rule was enunciated
by the House of Lords in Browne v Dunn (1893) 6 R 67 (HL) and has been adopted and
consistently followed by our courts.
[62] The rule in Browne v Dunn is not merely one of professional practice but is
“essential to fair play and fair dealing with witnesses”. [See the speech of Lord Herschell
in Browne v Dunn, above.] . . .
[63] The precise nature of the imputation should be made clear to the witness so that it
can be met and destroyed . . . particularly where the imputation relies upon inferences to
be drawn from other evidence in the proceedings. It should be made clear not only that the
evidence is to be challenged but also how it is to be challenged. This is so because the
witness must be given an opportunity to deny the challenge, to call corroborative evidence,
to qualify the evidence given by the witness or others and to explain contradictions on
which reliance is to be placed.’

49 2000 (1) SA 1 (CC); 1999 (10) BCLR 1059 (CC) paras 61-63.

It is abundantly clear that the applicant’s cross-examination did not meet the
standard laid down in the passage above.

[128] The existence of a conspiracy is, in any event, dispelled by various
aspects of evidence. Had the complainant been hell-bent on laying trumped
up charges against the applicant, as he claimed, she would simply have
indicated certain dates as those on which the deeds were perpetrated. She did
not do so and was honest enough to say that she could not remember the
specific dates. Furthermore, if the complainant and Ms V had indeed
conspired to falsely implicate the applicant, they would have rehearsed their
evidence so as to eliminate any possibility of contradiction in their evidence.

[129] Moreover, it is difficult to understand why Ms V would bear a grudge
against the applicant for responding positively when she and her sister
requested him to take them to the police station after their mother had
assaulted them. On this aspect, it bears mentioning that the applicant’s
willingness to transport Ms V and her sister to the police station on account
of their mother having assaulted them, is incompatible with the applicant’s
evidence regarding how he disliked them due to their bad behaviour. In any
event, if Ms V indeed wanted to falsely implicate the applicant she, being
much older and more mature than the complainant, would probably have
taken it upon herself to lay charges of indecent assault against the applicant,
instead of taking a chance of luring the applicant’s own step daughter to
falsely implicate him. This is more so because during her evidence, she stated
that the applicant had, on a few occasions, fondled her breasts and touched
her private parts.

[130] As for Ms H, the applicant’s counsel expressly acknowledged, during
Ms H’s cross examination, that she was indeed a friend to the complainant’s
mother. Ms H’s evidence that her friendship with the complainant’s mother
still continued after the applicant’s arrest, was not disputed. Surely, the
complainant’s mother would not have continued to associate with Ms H after
realising that she was part of a conspiracy to falsely implicate the applicant. It
is clear that the applicant’s version relating to the State witnesses’ motive for
falsely implicating him was nothing else but a ruse. Considering the body of
evidence adduced by the State witnesses, the trial court correctly took a dim
view of his failure to present his conspiracy theory to all the alleged
conspirators. It’s finding that he was an evasive witness is also borne out by
the record.

[131] The applicant called the complainant’s mother as a defence witness. It
is quite curious that she did not, despite having heard the complainant’s
version,50 deny that the complainant had ever informed her about the rape.
Notably, she also did not, in her laconic account of events, testify about the
complainant’s alleged failure to adjust to the fact that she was no longer an
only child; the alleged ill-discipline she exhibited by stealing and being
generally rebellious over the years; about her ill-advised association with Ms
H’s daughters and that on the day of the theft of chocolates, she had returned
from school bruised and bloodied and had told her that she had been in a fight
at school. Although this evidence would have corroborated the applicant’s
version, she did not mention any of those things. This is quite telling. What is
also striking is that the complainant’s mother also did not try to refute the

50 The record shows that she was present in court when the complainant testified.

evidence of the social worker about her not having denied that the complainant
had told her about the rape. The social worker was an independent witness
and could not have had any motive to make a false allegation about the
complainant’s mother. These are all aspects that the trial court took into
consideration.

[132] The majority judgment51 finds that the complainant was ‘careful to
make the time of the rape in the caravan coincide with the time that the
applicant would have been off work, in the morning’. There is no basis for this
conclusion, given the fact that the applicant’s own version was that he would
sometimes be off duty over weekends, which obviously meant that he would
have been home both in the morning and at night.

[133] The majority judgment further states that the complainant was deeply
aggrieved by the beating and concludes that ‘she had reason to implicate him’.
I disagree with this point of view. It must be borne in mind that the applicant’s
version was that he only smacked the complainant on her buttocks and was
not responsible for the blue eye that she sustained. Notably, the complainant’s
assertion that the applicant had previously chastised her (‘n pak slae gegee)
was not denied by the applicant. As correctly stated by the trial court, it would
simply defy logic for the complainant to feel so aggrieved by being smacked
on the buttocks that she would falsely implicate the applicant, when she had
previously not taken chastisement by her uncle, grandfather and the applicant
personally.

51 Majority judgment para 56.

[134] In any event, if the severe beating was indeed the motive for falsely
implicating the applicant, the probabilities are that the complainant would not
have shown any reluctance before telling Ms V that the applicant had molested
and raped her. The complainant’s initial reluctance to disclose both the assault
and the molestation and rapes to Ms V and later to the social worker dispels
any notion of a conspiracy to falsely implicate the applicant. In my view, the
version of the applicant, unsupported by the evidence of his own witness,
cannot stand. The trial court correctly found that the State had proven its case
against the applicant beyond reasonable doubt.

[135] Having considered all the circumstances of this case, I am of the
respectful view that the majority judgment’s harsh criticism of the
complainant’s evidence arises from viewing bits and pieces of evidence in
isolation despite the trite principle that a court’s conclusion must account for
all the evidence.52

[136] Having had the benefit of the conspectus of the record, it is clear that
the trial court’s verdict was based on a careful analysis of all the evidence that
was adduced during the trial. The trial court had the benefit of observing the
complainant and the other witnesses during their testimony. Its credibility
findings in respect of all the witnesses are borne out by the record. On appeal,
the court a quo found that the credibility findings it made, cannot be faulted.53
I agree. Since the finding and decision of the trial court in respect of the counts
of which the applicant was convicted were not vitiated by any misdirection or

52 S v Van der Meyden 1999 (1) SACR 447 (W) at 449f – 450a, cited and approved in S v Van Aswegen 2001
(2) SACR 97 (SCA).
53 K v S [2018] ZAGPPHC 330 paras 11 and 29.

erroneous findings,54 there is no basis for setting aside the decision of the court
a quo.

[137] Before I conclude, I am constrained to comment on the following
passage from the majority judgment:
‘No wonder then that the foster mother, who was called by the State, in aggravation of
sentence, and who had lived with her for a few years, testified that she had told her that she
had accused the applicant to get her own back at him. This evidence, of course was not
available to the magistrate before conviction. Neither was the evidence of the foster mother
that she bragged publicly about how she had stolen sweets.’55
It is clear from the foregoing extract that the majority judgment accepts the
foster parent’s evidence as corroboration of the applicant’s evidence.

[138] It bears mentioning that the foster mother testified that she had, on
several occasions, interacted with the complainant’s grandmother, who
happens to be the applicant’s biological mother. As the foster parent testified
after the applicant’s conviction, this obviously means that the trial court
reached its verdict before her evidence was adduced. In his heads of argument,
counsel for the applicant implores this court to accept the foster parent’s
evidence using its ‘power to review option’. The majority judgment has not
pronounced itself on this request. It is therefore necessary for me to
underscore the principles that this Court and the Constitutional Court have
laid down in relation to the acceptance of ‘fresh evidence’ that comes to light
after judgment.

54 Ibid.
55 Majority judgment para 67.

[139] The following warning sounded by this Court in Colman v
Dunbar56 still rings true today:
‘To allow fresh evidence on a point which calls in question evidence already led would
necessitate a rehearing of the witnesses whose evidence is questioned, so as to give them
an opportunity of answering the fresh evidence. This means that the case would be largely
reopened which militates against finality. . . .’
In S v Wilmot,57 this court aptly stated as follows:
‘Accordingly the power to hear new evidence on appeal or to remit a matter to a trial court to hear
such evidence will be sparingly exercised and only when the circumstances are exceptional. A
further factor which weighs against the exercise of the power of remittal is the possibility of
fabrication of testimony after conviction and the possibility of witnesses being bribed to retract
evidence given by them’.
The foregoing sentiments succinctly lay bare the prejudice that would be
suffered by the prosecution in this matter if this Court were to accept the foster
mother’s evidence on appeal.

[140] In Rail Commuters Action Group and Others v Transnet Ltd t/a
Metrorail and Others,58 the Constitutional Court stated the following:
‘[41]… Important criteria relevant to determining whether evidence on appeal should be
admitted were identified in Colman v Dunbar. Relevant criteria include the need for
finality, the undesirability of permitting a litigant who has been remiss in bringing forth
evidence to produce it late in the day, and the need to avoid prejudice. One of the most
important criteria was the following:
“The evidence tendered must be weighty and material and presumably to be believed, and must be
such that if adduced it would be practically conclusive, for if not, it would still leave the issue in
doubt and the matter would still lack finality."
. . .

56 1933 AD 141 at 161.
57 2002 (2) SACR 145 (SCA) 42 para 31
58 2005 (2) SA 359 (CC).

[42] In Van Eeden v Van Eeden, the Cape High Court held that it was well established
that the court's powers as derived from s 22(a) of the Supreme Court Act should be
exercised sparingly. The court held, further, that in that case the additional evidence related
to facts and circumstances which had arisen after the judgment of the court a quo. This
raised the question whether it was competent for the court, in the exercise of its power
under s 22(a), to receive such evidence or to authorise its reception. Comrie J held that the
section did not include any express limitation which would exclude the reception of the
evidence then sought to be tendered and that the court exercising appellate jurisdiction had
a discretion whether or not to allow the evidence to be admitted, which discretion should
be exercised sparingly and only in special circumstances. From time to time, he held, cases
did arise which cried out for the reception of post-judgment facts.

[43] In my view, this approach is correct. The Court should exercise the powers conferred
by s 22 “sparingly” and further evidence on appeal (which does not fall within the terms
of rule 31) should only be admitted in exceptional circumstances. Such evidence must be
weighty, material and to be believed.’ (Footnotes omitted).

[141] It is clear that the evidence of the foster mother does not meet any of
the requirements mentioned in the foregoing paragraphs. Furthermore, it is
noteworthy that in one of her answers under cross-examination, she described
the phrase ‘getting back’ at the applicant as wanting him ‘to take
responsibility’. She, in the same breath, testified that the complainant often
cried, stating that she did not understand why her mother was taking the
applicant’s side when she had actually informed her about the applicant’s
deeds. Self-evident from the foster mother’s evidence is that the complainant
never disavowed the legitimacy of the sexual assault and rape charges she laid
against the applicant. Under those circumstances, it would be wrong to ignore
the parts of her evidence that are in favour of the complainant and to focus
only on what is favourable to the applicant.

[142] It is also of significance that the applicant’s heads of argument
acknowledge that the foster mother contradicted the testimony she had given
earlier. Clearly, her contradictory evidence is not conclusive on any issue. Her
testimony is incapable of affecting the outcome of the trial as the State did not
rely on any part of it in convicting the applicant. Given the principles laid
down in all the authorities mentioned in paragraphs 133 to135 of this dissent,
the ineluctable conclusion is that the foster parent’s testimony ought not to be
accepted by this Court as ‘fresh evidence’ that came to light after the verdict.
Doing so would impermissibly elevate the foster mother’s evidence to
corroboration of the applicant’s version.

[143] For all the reasons mentioned above, I am of the view that the court a
quo correctly dismissed the appeal that served before it. In this Court, the
applicant has not laid a basis for the granting of special leave to appeal. I
would therefore dismiss the application for leave to appeal.

________________________
M B MOLEMELA JA
JUDGE OF APPEAL

Appearances

For applicant:
A Pretorius
Instructed by:
JG Kriek & Cloete Attorneys, Bloemfontein

For respondent:
A Simpson
Instructed by:
Director of Public Prosecutions, Bloemfontein