S v Booi and Another (CC 180/2003) [2004] ZANWHC 35; 2005 (1) SACR 599 (B) (30 November 2004)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

REPORTABLE

CASE NO. CC 180/2003

IN THE HIGH COURT OF SOUTH

AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

In the matter between:

THE STATE

And

LAZARUS BOOI ACCUSED 1

PHILLEMON BOOI ACCUSED 2

____________

JUDGMENT

MOGOENG JP.

Introduction

[1] This matter came before me on 12 August 2004. Both counsel for the State and for the Accused agreed that in the event of the Court setting aside the convictions for the reasons set out hereunder, then the order may be made that the trial should start afresh. Having studied the papers and heard both counsel, I made the following order:

“The convictions are set aside and both accused are discharged. The accused are to be tried de novo by a differently constituted Court.”

Reasons for judgment were reserved. These then are the reasons.

Background

[2] Accused no.1 and accused no.2 in this matter were convicted in the regional Court of the rape of Ms V.D. and Ms K.M.M., aged 11 and 15 years respectively. The proceedings were stopped and the accused were then committed for sentence by this Court in terms of s 52 of the Criminal Law Amendment Act 105 of 1997 (“the Act”).

[3] Intermediaries were used to facilitate communication between the Court, Counsel and the rape victims in this matter. Those intermediaries were apparently appointed in terms of s 170A of the Criminal Procedure Act 51 of 1977 (“the CPA”).

[4] In terms of s 170A(4)(a) ‘The Minister may by notice in the Gazette determine the persons or the category or class of persons who are competent to be appointed as intermediaries.’ The Minister has already made the determination, and Social Workers are some of the persons or the category or class of persons

appointable as intermediaries. However, not every Social Worker is competent for appointment as an intermediary. In order to qualify a Social Worker must have two years experience in Social Work. (See GN R1374 Gazette 1504 of July 1993 as amended by R30 in 9917882 of 28 January 1997 and R597 in 9922435 dated 02 July 2001; and Du Toit, Commentary on the Criminal Procedure Act at 22-32). I single out Social Workers because the intermediaries used in this matter were Social Workers.

[5] Pistor AJ and Sibeko AJ were seized of the matter at different stages. Sibeko AJ remitted the matter to the Court a quo (presumably in terms of s 52(3)(e)(v) of the Act) with instruction to enquire into the names, qualifications and appointment, etc, of the intermediaries.

[6] An enquiry was held pursuant to the above instruction. In response, the presiding officer said, inter alia, that (i) the intermediaries were both Social Workers; (ii) they were used by the Court daily; (iii) they were competent and qualified;

(iv) they communicated well with the complainants; (v) the accused were represented by a competent attorney who did not suggest that there was anything wrong with the intermediaries; and (vi) the intermediaries were sworn in.

[7] When the matter came before me the evidence of Ms Rebaone Josephine Modungoa and Ms Kesenogile Queen Molamu was led by the State (in terms of s 52(3)(d) of the Act) in order to provide this Court with the information which the enquiry was meant to provide but had failed to do so. This evidence was necessitated by the fact that although the record shows that applications to make use of intermediaries were made and granted in terms of s 170A of the CPA, the names and particulars of the intermediary who was used to assist Ms D. (the intermediary who turned out to be Ms Modungoa) do not appear anywhere on the record. Whereas the names of Ms Molamu (the intermediary who assisted Ms M.) are reflected on the record, her other particulars do not appear on record. The evidence of the two ladies in this Court follow below.

[8] The essence of Ms Modungoa’s evidence is that she was a qualified Social Worker, she had been working as such for a period of 8 years and that she had undergone training as an intermediary. She was thus qualified to be appointed and used as an intermediary. She also said that she assisted Ms D. in the Court a quo as an intermediary.

[9] Ms Molamu had, however, only been a Social Worker for a period of about 13 months as at the time when her services were used as an intermediary in this case. She and her superiors were aware that her service fell short of the prescribed service period. For that reason, she was not qualified to act as an intermediary since the Minister had determined that only a Social Worker who had been working as such for a period of at least two years would qualify to be appointed and to act as an intermediary.

[10] None of these shortcomings, individually or collectively is so prejudicial to the accused’s case as to justify the setting aside of the convictions. A proper consideration of the provisions of s 170A(5) of the CPA must lead to the conclusion that the incompetence of, for example Ms Molamu, did not adversely affect the reliability of her evidence and that real and substantial justice would not be impaired if the evidence which was led through these intermediaries were admitted. These are the least of the State’s problems. A discussion of the real issues follow below.

The Issues

[11] There are two main issues on the basis of which the convictions were set aside and they are whether: (a) the requirements for using the intermediaries were met; and (b) the Court did in fact appoint the two ladies as intermediaries.

Was there a need to use intermediaries?

[12] Section 170A(1) of the CPA provides that:

“(1) Whenever criminal proceedings are pending before any Court and it appears to such Court that it would expose any witness under the age of eighteen years to undue mental stress or suffering if he or she testifies at such proceedings, the Court may, subject to subsection (4), appoint a competent person as an intermediary in order to enable such witness to give his or her evidence through that intermediary.”

(My emphasis)

The thinking behind the enactment of s 170A(1) was to moderate the traumatic effect of the abuse of children in a situation where giving evidence without skilled assistance from an intermediary would heighten the mental stress or suffering to a level which is far above the ordinary. Mental stress or suffering is a given in a case of children who were sexually abused. It is the UNDUE stress or suffering that was intended to be catered for by s 170A.

[13] The complainants in this case were 11 years and 15 years old respectively and obviously below the age of 18 years. It follows from this subsection that when applying for the use of an intermediary it is desirable that facts, on the strength of which the Court may decide that the witness would be exposed to ‘undue mental stress or suffering’ if he/she were to testify without the assistance of an intermediary, be placed before Court. The application should not, as it often happens, be granted merely because the victim is young. In S v Mathebula (1996) 4 ALL SA 168 (C) the Magistrate granted an application for the use of an intermediary on the basis only that one of the accused’s victims upon whom an alleged act of indecent assault had been committed was ten years old and that both victims were known to the accused. The Court, approving a passage relating to the appointment of an intermediary, in Kriegler, Suid-Afrikaanse Strafprosesreg (Fifth edition) at 433 stated that youthfulness alone is not sufficient. The Court went on to endorse the other factors, listed

by Kriegler supra, which the Court should consider which are: the intelligence, age, gender and personality of the witness, the nature of the witness and more.

[14] In S v Stefaans 1999 (1) SACR 182 (C), the Court laid down guidelines which a Court faced with an application for the invocation of the provisions of s 170A should consider. The hampering of effective cross-examination is one of them. The Court also decided that s 170A(1) may be readily invoked when the application to use an intermediary is not opposed. I disagree with the decision that the attitude of the accused’s counsel, which may be misguided, should, so to speak, be decisive.

[15] It is the responsibility of the presiding judicial officer to ensure that sufficient facts relating to the factors mentioned above, upon which the application may be meaningfully considered, are placed before him/her. This should be so even if the accused is legally represented and there is no opposition to the application. Section 170A(1) can only find application where a witness, under the age of 18 years, would be exposed to ‘undue mental stress or suffering’. Whether or not the witness would be so exposed, does not depend on the cooperation of the accused’s counsel or the lack thereof. It depends on a consideration of the above and similar factors.

[16] The mere fact that the accused in this matter were represented by a competent attorney and that that attorney did not oppose the applications for the use of the intermediaries did not relieve the learned Magistrate of the duty to ensure that the statutory requirements for using an intermediary, namely whether the victim would be exposed to ‘undue mental stress or suffering’, were met before he allowed the victims to testify through intermediaries (See S v Nzima & Another 2001 (2) SACR 354 (C) at 356f-h).

[17] The Court itself must always be satisfied that the young victim would be exposed to ‘undue mental stress or suffering’ before an intermediary could be appointed and used. The fact that the application was not opposed, for instance, would not debar

counsel on appeal from taking the point that the statutory requirements for appointing intermediaries were not met if they were

in fact not met.

[18] I am satisfied that the requirements for using intermediaries in this case were not considered, let alone met. I turn to the last issue, which is whether intermediaries were in fact appointed in terms of s 170A(1).

Did the Court appoint the intermediaries?

[19] All that is recorded in respect of the intermediary who assisted Ms D. is that an application was made in terms of s 170A to make use of an intermediary. The Court granted that application. The names of the Complainant were then stated followed by the Court’s remarks that Ms D. was a small child and appealing to her to tell the truth, nothing else but the truth. The evidence was then led.

[20] The prosecutor also made a similar application to use the intermediary who assisted Ms M.. The Court noted that the Complainant was a very young child and immediately said that Ms M. was going to testify through an intermediary. Unlike in the case of Ms D., counsel for the accused was asked whether he had any objection to the use of an intermediary and he answered in the negative. The application to use the intermediary was then granted. The full names of that intermediary (Ms Molamu) were then stated, whereafter the Court admonished Ms M. to tell the truth. Her evidence was then led.

[21] Paragraphs 19 and 20 above amount to a complete record of what transpired when the applications were made in terms of s 170A(1) and when the Court a quodecided that intermediaries be used. The names of the intermediary who assisted Ms D. do not appear on the record. The qualifications or profession of the two intermediaries and the period over which they had been working within the category or class determined by the Minister are not mentioned at all. There is no indication on the record that the oath or affirmation was administered to any of them. The only semblance of an oath that is recorded is an admonition to the Complainants in terms of s 164 of the CPA. The record does not show that anything like that was done to any of the intermediaries.

[22] It follows that whenever the oath or affirmation is actually administered to an intermediary and an intermediary is actually appointed, the names, qualifications and occupation of each intermediary used must be captured somewhere in the record of the proceedings, to signify a proper administration of the oath or affirmation and the appointment of the intermediaries. Had this procedure been followed the particulars of the intermediary who assisted Ms D. and the substance of the oath would have been recorded in the Court a quo.

[23] The learned Magistrate made no reference whatsoever to the oath and to the purpose it is intended to serve, in the enquiry that he was ordered by Sibeko AJ to hold. The only statement which could be understood to remotely suggest that factors essential to the appointment of an intermediary may have been considered is the one that says ‘[t]hey have been sworn in.’ This oath which the learned Magistrate mentions in passing almost at the end of the enquiry does not appear in the record of the trial proceedings in any manner whatsoever.

[24] It is also a matter of common sense that the appointment of an intermediary has to be made in respect of a particular case, just as in the case of a district surgeon, a pathologist or police officer who has to be sworn in or affirmed whenever he/she testifies, notwithstanding the fact that he/she may be a regular witness in the same Court and well-known to the Court officials. The appointment of an intermediary is not a blanket or once for all appointment such as in the case of permanent Court Interpreters who are Court officials. (See S v Manra 1966 (4) SA 319 (A) at 321E-G and S v Kwali 1967 (3) SA 193 (A) at 197H-198A).

[25] It is always essential to the proper performance of his/her functions that the intermediary be reminded of what his/her functions in Court entail. An intermediary must specifically undertake to convey correctly and to the best of his/her ability the general purport of what is being said to and by the witness, before he/she begins to help the witness. An intermediary needs to be reminded or cautioned that his/her role in Court is, generally speaking, just as important as and similar to that of an interpreter. He/she is an interpreter of a special kind. This is in line with Rule 61(1)-(2) of the Uniform Rules and especially Rule 68(1)-(5) of the Magistrates’ Courts Rules which applies to the Court a quo.

[26] In the absence of any recording which has captured the information which is substantially similar to the one set out above, the irresistible conclusion to arrive at is that no oath or affirmation was administered to the intermediaries and that the Magistrate did not appoint them as he was supposed to do in terms of s 170A(1). Alternatively, to the extent that his granting of the Prosecutor’s

application in terms of s 170A, to use the intermediaries, may be construed as amounting to the appointment of the intermediaries,

those appointments are so defective as to be invalid.

Can this situation be rescued by s 170A(5)?

[27] It is imperative that all of the above be considered with reference to the provisions of s 170A(5)(a) and (b) of the CPA which follow below:

“170A Evidence through intermediaries

(5)

No oath, affirmation or admonition which has been administered through an intermediary in terms of section 165 shall be invalid and no evidence which has been presented through an intermediary shall be inadmissible solely on account of the fact that such intermediary was not competent to be appointed as an intermediary in terms of a regulation referred to in subsection (4)(a), at a time when such oath, affirmation or admonition was administered or such evidence was presented.

If in any proceedings it appears to a court that an oath, affirmation or admonition was administered or that evidence has been presented through an intermediary who was appointed in good faith but, at the time of such appointment, was not qualified to be appointed as an intermediary in terms of a regulation referred to in subsection (4)(a), the court must make a finding as to the validity of that oath, affirmation or admonition or the admissibility of that evidence, as the case may be, with due regard to―

the reason why the intermediary concerned was not qualified to be appointed as an intermediary, and the likelihood that the reason

concerned will affect the reliability of the evidence so presented adversely;

(ii) the mental stress or suffering which the witness, in respect of whom that intermediary was appointed, will be exposed to if that evidence is to be presented anew, whether by the witness in person or through another intermediary; and

(iii) the likelihood that real and substantial justice will be impaired if that evidence is admitted.”

[28] Section 170A(5) is intended to safeguard the oath, affirmation or admonition administered through an incompetent intermediary or evidence led through an intermediary who was appointed in good faith but was not qualified to be appointed as an intermediary. In other words, s 170A(5) empowers the Court, to consider the effect of the incompetence of an intermediary on the validity of the oath, affirmation or admonition administered through that intermediary and the admissibility of the evidence given through that intermediary with reference to the factors listed in s 170A(5)(b)(iii), to determine whether real and substantial justice will be advanced or jeopardised by accepting or rejecting the oath, affirmation or admonition and the evidence. Factors listed in s 170A(5)(b)(i) to (iii) are, therefore, only applicable and of relevance to a case where the oath or affirmation would have been administered to the incompetent or unqualified intermediary and where that intermediary would have actually been appointed, the only defect being that the intermediary in question does not meet any of the requirements for competence or appointment determined by the Minister as set out in the Gazettes referred to in paragraph 4 above.

[29] Evidently, the question of considering the provisions of s 170A(5) does not even arise in this case. The admonition to the children was administered through intermediaries to whom no oath or affirmation was administered. The evidence of the young complainants was given through intermediaries who were either not even appointed or whose appointment is invalid owing to the Court a quo’s failure to comply with the requirements of s 170A(1), by: (i) not satisfying itself that the children would be exposed to ‘undue mental stress or suffering’ and (ii) not actually appointing the intermediaries. These irregularities have resulted in the accused not being given a fair

trial. (See The State v Naidoo 1962 (2) SA 625 (A) at 637A-D, G-H, 638A-B; Tshabalala v Lekoa City Council 1992 (3) SA 21 (A) at 32F-G; and Sidow en andere v S 2003 (1) ALL SA 118 (c) at 124h). For these reasons, the convictions were set aside.

_____

M.T.R.

MOGOENG

JUDGE

PRESIDENT OF THE HIGH COURT

APPEARANCES

DATE OF HEARING : 12 AUGUST 2004

DATE OF JUDGEMENT : 30 NOVEMBER 2004

COUNSEL FOR THE STATE : ADV D. MOEKETSI

COUNSEL FOR THE ACCUSED : MR ROODTMAN