CHILD’S EVIDENCE

Mpontshane v S [2016] 4 All SA 145 (KZP)

Criminal law – Rape – Conviction and sentence – Appeal – Where evidence not establishing guilt of appellant as perpetrator of offences, and where prescribed minimum sentence was irregularly imposed, appeal upheld.

Criminal procedure – Child complainants – Testimony in court – When children testify, they should be afforded the assistance of intermediaries.

Criminal procedure – Forensic DNA evidence – When the prosecution rests on the evidence of children, the State must obtain DNA evidence when samples are taken from such complainants.

Criminal procedure – Rape – Prescribed minimum sentence – Appellant not informed that he faced a term of life imprisonment as prescribed in Schedule 2, Part 1(c)(i) read with section 51(1) of the Criminal Law Amendment Act 105 of 1997 – Imposition of prescribed minimum sentence in such circumstances amounting to irregularity.

 

Convicted on two counts of rape and one count of theft, the appellant was sentenced to life imprisonment on each count of rape and to a term of four years’ imprisonment for housebreaking with intention to steal and theft. He appealed against the convictions and sentences on the rape counts.

The victims of the rape were two young girls who were in the home into which the appellant had broken.

The appeal against conviction was based on whether the trial court did not ascertain that the child complainants understood the difference between truth and falsehood and did not administer the oath and warn the complainants properly; that the court failed to warn itself sufficiently or at all to exercise caution when dealing with the evidence of young children especially when identification was at issue; and that the State had failed to prove recent possession by the appellant of a t-shirt and radio belonging to the complainants.

Held – The record showed that the magistrate had in fact enquired into whether the complainants knew and understood the importance of taking the oath. He ascertained that they understood the difference between truth and lies. The approach that the trial court adopted in that regard was unassailable, and the first ground of appeal was dismissed.

As far as identification was concerned, the State’s case was that the complainants were able to identify the appellant when the electric light was switched on, and in the light of a candle. There was also light from the street. The State witnesses knew the appellant. However, having regard to the accounts given by the two complainants, the present Court found their evidence of the identification of the appellant to be fraught with contradictions and inconsistencies. On its own, such evidence could not be relied upon. The Court therefore turned to the remaining issue of the possession by the appellant of the t-shirt and radio belonging to the complainants. The fact that the t-shirt was found in his possession did not prove his guilt on the rape counts because the State failed to prove when and how he came to possess it. Although the appellant was not a credible witness, he bore no onus to prove his innocence. The State had failed to discharge its burden of proving the identity of the assailant beyond reasonable doubt.

It being common cause that the complainants had been raped, two issues were raised by the Court. The first related to the fact that the child complainants testified without the assistance of an intermediary, and the second was that forensic DNA evidence was not produced. The Court confirmed that when children testify, they should be afforded the assistance of intermediaries. Secondly, when the prosecution rests on the evidence of children, the State must obtain DNA evidence when samples are taken from such complainants. At the very least, the State must account to the complainants and the Court whether samples were tested and what the results were.

Finally, the Court found that the appeal against sentence was well-founded. Although the charge sheet informed the appellant that he was being prosecuted in terms of Schedule 2 of Part III of the Criminal Law Amendment Act 105 of 1997, he was not informed that he faced a term of life imprisonment as prescribed in Schedule 2, Part 1(c)(i) read with section 51(1). To impose a term of life imprisonment in those circumstances amounted to an irregularity that had to be set aside.

The appeal was accordingly upheld, and the appellant acquitted on both counts of rape.

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