Reportable: YES / NO Circulate to Judges: YES / NO Circulate to Magistrates: YES / NO Circulate to Regional Magistrates: YES / NO SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy IN THE HIGH COURT OF SOUTH AFRICA NORTH WEST DIVISION, MAHIKENG CA 50/2015 In the matter between: TEBOGO CHRISTOPHER CHOKU Appellant AND THE STATE Respondent CRIMINAL APPEAL KGOELE J, NOBANDA AJ DATE OF HEARING : 11 May 2018 DATE OF JUDGMENT : 11 May 2018 DATE REASONS HANDED : 14 June 2018 1 COUNSEL FOR APPELLANT : Mr Setumo COUNSEL FOR RESPONDENT : Adv. Nontenjwa REASONS FOR JUDGMENT _________________________________________________________ KGOELE J [1] The appellant was convicted in the Regional Court Division of North West held at Itsoseng on a charge of rape and sentenced to Life Imprisonment. Leave to appeal against his conviction and sentence was refused by the trial Court and he successfully petitioned this Court, hence this appeal. [2] The appeal was heard by this Court on the 11th May 2018 and the following Order was granted:- “1. The appeal against both conviction and sentence is upheld; 2. The immediate release of the appellant be and is hereby ordered; 3. Reasons will follow”. [3] The reasons follow hereunder. [4] The salient facts of this matter were that the appellant was charged with rape of the complainant, R S, a 12 year old girl at the time of the incident. It was alleged in the charge sheet that the 2 rape took place on several occasions in 2007, but the dates thereof were not given. [5] The State led evidence of three witnesses. The complainant, who was a single witness in as far as the rape is concerned, described how appellant, who was used to visit their place, raped her in a shack at the back of the house on the 23rd June 2007. This was after the appellant had suggested to the complainant’s mother, who was also present at that time, that the complainant accompany him to go and buy some beers. The mother agreed to this request, according to the testimony of the complainant. Whilst they were at the back of the house with the intention to go and buy some beers, the appellant dragged her into the shack which was nearby and raped her. He gave her R10-00 afterwards. According to her explanation, this sexual intercourse took place whilst both were standing. [6] It appears that the rape was, according to the complainant, interrupted by her aunt when she was passing by at the time she was going to the washing line to fetch some clothes. The aunt, who also testified, confirmed that when she passed next to the shack, she saw the complainant and the appellant in the shack. Although she could not see what they were doing in the shack, she decided to quickly run back to the house to call complainant’s mother. When the appellant saw the aunt and the complainant’s mother coming, he ran out of the shack. The appellant was thereafter chased but they could not catch up with him. 3 [7] According to the aunt’s testimony, the complainant could not tell them what happened in the shack when she inquired except to report that the appellant was twisting her hands in the shack. Even though the complainant did not disclose to them that she was raped, she was nonetheless taken to the police station. From her testimony, the complainant did not want to open up regarding the rape allegation up until she threatened the complainant with the fact that the police will choke her if she does not tell them what the appellant did to her. It further appears from the record of proceedings (in the judgment of the Trial Court) that according to the complainant, she reported to her aunt and the police what happened after she chastised her. The record further reveals that it was only at the police station when the complainant was making a statement that she revealed that this was not the first time she was raped by the appellant. She was then taken to the hospital. [8] The medical doctor who examined the complainant testified and indicated that his conclusion was that there were no signs of penetration. He testified that this conclusion was informed by the shape of the hymen, including the fact that there were no physical injuries, no trauma tears and/or lacerations on the genitalia of the complainant. He also indicated that there was some fluid like semen deposited at her vaginal opening. [9] The appellant’s version is to the effect that indeed on the 23rd June 2007, he was at the complainant’s parental home when he was sent to buy liquor. Before he left for the liquor, he called the complainant and requested her to go fetch some empty beer 4 bottles for him. By then, he was standing at the door of the main house and the complainant was in the shack collecting bottles. Whilst he was standing there, the complainant’s aunt and her friends arrived. They made noise at the same time, shouting that he was with the child in the shack. After trying to stop them from shouting at him, he then jumped over the fence, with the intention to go to the next shebeen. They followed him. He denied the allegations that he raped the complainant. During cross- examination, he indicated that the aunt of the complainant forced the complainant to fabricate a story about him raping the complainant because he had terminated the love affair they had and she was jealous about the new girlfriend he was dating. [10] The trial Court rejected his version and convicted him as charged and sentenced him to Life Imprisonment. [11] As a first ground of appeal, the appellant’s legal representative argued that the trial Court had taken it for granted that the child witness understood the nature and import of being admonished and thus failed to conduct an inquiry to establish her ability to distinguish between truth and falsity, which determines whether or not the witness is competent to testify in the first place. Furthermore that, the trial Court failed to establish the witness’ ability to understand the nature and import of the oath or affirmation, which would direct whether the witness should be admonished to speak the truth, instead of taking an oath. He relied on S v Matshivha 2014(1) SACR 29 SCA to support this submission. 5 [12] He further referred this Court to the case of S v Mangoma [2013] ZASCA 205 (unreported SCA Case No 155/13, 2 December 2013) wherein the Court held that it was still required, at the very least, that there be some inquiry into whether the child witness understood the meaning of telling the truth. He contended that the absence of such an inquiry resulted in the inadmissibility of the evidence and a failure of justice. The other authority he relied upon was Geallal Raghubar v The State (148/12) [2012] ZASCA 188( 30 November 2012). [13] In expanding on his proposition, he placed much emphasis on the case of the Director of Public Prosecutions, Transvaal v Minister of Justice and Constitutional Development & Others 2009 (2) SCAR 130 (CC) wherein the following was said at para 166:- “the evidence of a child who does not understand what it means to tell the truth is not reliable. It would undermine the accused right to a fair trial were such evidence to be admitted. To my mind it does not amount to a violation of Section 28(2) to exclude the evidence of such child. The risk of conviction based on unreliable evidence is too great to permit a child who does not understand what it means to speak the truth to testify. This would indeed have serious consequences for the administration of justice.” [14] His conclusion on this aspect is that no reliance can be placed on the evidence of the complainant in this case and as such, the conviction of the appellant cannot stand. 6 [15] The second ground of appeal is to the effect that the State did not prove the guilt of the appellant beyond reasonable doubt in that the element of sexual penetration was not proven by the State. [16] Appellant’s legal representative submitted that the complainant is a child witness and the only witness of the State to testify about the allegation of the actual rape. His argument is that, although the child testified that it was not the first time the appellant had sexual intercourse with her, and further that she felt pains when the appellant penetrated her, the Doctor could not find any signs of sexual penetration, despite the fact that she was examined in less than five hours after the alleged rape. In addition, the medical report does not support or corroborate her evidence that she was sexually violated whether previously or on that day. [17] He submitted further that the evidence of the second State witness did not add value to the complainant’s evidence. Although she claims to have seen the complainant in the shack with the appellant, she did not witness the rape. According to him the problem is exacerbated by the fact that the complainant did not report to her that she was raped. He maintained that it is clear that the complainant was coerced to say that she was raped as threats were made to her about the police choking her if she does not report.