S v Gallant (CA&R 69/06) [2007] ZAECHC 64; 2008 (1) SACR 196 (E) (19 July 2007)

FORM A

FILING

SHEET FOR EASTERN CAPE JUDGMENT

ECJ no: 190

PARTIES: LESTER GALLANT AND THE

STATE

REFERENCE NUMBERS –

Registrar: CA&R 69/06

Magistrate:

Supreme Court of appeal/Constitutional Court: HIGH COURT, GRAHAMTOWN

DATE OF HEARING: 9 MAY 2007

DATE DELIVERED: 19 JULY 2007

JUDGE(S): E. REVELAS J & C.

PLASKET J

LEGAL REPRESENTATIVES –

Appearances:

for the State/Applicant(s)Appellant(s): ADV

A HATTINGH for the accused/respondent(s): ADV

S GOUNDEN

Instructing attorneys:

Applicant(s)/Appellant(s):

LEGAL

AID

Respondent(s):

DIRECTOR OF PUBLIC PROSECUTION, GRAHAMSTOWN

CASE INFORMATION –

Topic:

Keywords:

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION)

Case No: CA&R 69/06

Date Heard: 9/05/07

Date Delivered: 19/07/07

In the matter between

LESTER

GALLANT APPELLANT

and

THE

STATE RESPONDENT

JUDGMENT

REVELAS J

[1] The appellant, a 42 year old male school teacher, stood trial in the Port Elizabeth Regional Court on a charge of indecent assault.

It was alleged that he, in 2002, had touched the genitals of his wife’s niece, an eight year old girl. I shall refer to her as “the complainant” in this judgment. Despite his plea of not guilty, the appellant was convicted as charged on 8 August 2006 and sentenced to a period of correctional supervision in terms of section 276(1)(h) of the Criminal Procedure Act 51 of 1977 (“the Act”). With the leave of the trial court, the appellant appeals against the conviction.

[2] Although the appellant has challenged the trial court’s findings on the merits, the main challenge relates to alleged procedural irregularities which occurred when the evidence of the complainant, her mother, and brother, was led. The appellant argued that the Magistrate did not comply with sections 162, 163 and 164 of the Act, which relate to the administering of the prescribed oath to witnesses in criminal proceedings, (section 162), affirmation in lieu of taking an oath, when the oath in certain circumstances should not be administered (section 163) and admonishing a witness to tell the truth, due to an inability to understand the nature of the oath (section 164). Counsel for the appellant argued that the non-compliance with the aforesaid sections constituted an irregularity which rendered the evidence of the three witnesses in question inadmissible, and their testimonies should consequently be disregarded for purposes of this appeal.

The Procedural Irregularities

[3] For purposes of clarity, the three sections of the Act which are relevant to this appeal, are quoted in full:

“162 Witnesses to be examined under oath

Subject to the provisions of sections 163 and 164, no person shall be examined as a witness in criminal proceedings unless he is under oath, which shall be administered by the presiding judicial officer or, in the case of a superior court, by the presiding judge or the registrar of the court, and which shall be in the following form:-

‘I swear that the evidence I shall give, shall be the truth, the whole truth and nothing

but the truth, so help me God.’

If any person to whom the oath is administered wishes to take the oath with uplifted

hand, he shall be permitted to do so.

163 Affirmation in lieu of oath

(1) Any person who is or may be required to take the oath and-

(a) who objects to taking the oath;

(b) who objects to taking the oath in the prescribed form;

(c) who does not consider the oath in the prescribed form to be binding on his conscience; or

(d) who informs the presiding judge or, as the case may be, the presiding judicial officer, that he has no religious belief or that the taking of the oath is contrary to his religious belief,

shall make an affirmation in the following words in lieu of the oath and at the direction of the presiding judicial officer or, in the case of a superior court, the presiding judge or the registrar of the court:-

‘I solemnly affirm that the evidence that I shall give, shall be the truth, the whole truth and nothing but the truth.’

Such affirmation shall have the same legal force and effect as if the person making it had taken the oath.

The validity of an oath duly taken by a witness shall not be affected if such witness does not on any of the grounds referred to in subsection (1) decline to take the oath.

164 When unsworn or unaffirmed evidence admissible

Any person who, from ignorance arising from youth, defective education or other cause, is found not to understand the nature and import of the oath or the affirmation, may be admitted to give evidence in criminal proceedings without taking the oath or making the affirmation: Provided that such person shall in lieu of the oath or affirmation, be admonished by the presiding judge or judicial officer to speak the truth, the whole truth and nothing but the truth.

If such person wilfully and falsely states anything which, if sworn, would have amounted to the offence or any perjury or any statutory offence punishable as perjury, he shall be deemed to have committed that offence, and shall, upon conviction, be liable to such punishment as is by law provided as a punishment for that offence.”

[4] The provision in section 162(1) of the Act, that witnesses must be examined under oath in criminal proceedings is peremptory, and can only be departed from in the circumstances set out in sections 163 and 164 of the Act. Non-compliance results in the inadmissibility of the testimony in question. (Vide: S v Ndlela 1984 (1) SA 223 (N) at 225G-H, S v Mashava 1994 (1) SACR 224 (T) at 228f-g and S v N 1996 (2) SACR 225 (C) at 227a-c and S v B 2003 (1) SACR 52 (SCA) at paragraph [14]).

[5] Section 163(1) of the Act relates to a witness who is required to take the oath, but who objects to taking the oath, or to its prescribed form, or advises the court that the oath (in any form) does not bind his or her conscience, or objects to it on the basis of his or her religious beliefs or lack thereof. Such a witness must then make an affirmation, also in accordance with a prescribed formula.

[6] Section 164 applies to the ignorant witness who is unable to appreciate the nature and import of the oath or affirmation, because of youth, defective education or another cause. In such cases the oath or affirmation may be substituted with an admonition by the judge or judicial officer, to speak the truth, the whole truth, and nothing but the truth. This section presupposes a finding as to the extent of the ignorance and the reason for it. No express enquiry or finding is necessary (S v B, supra at 63b-c).

[7] The proceedings in this matter were held in camera and the complainant testified from a room outside the court room. The interior of the room was reflected on a television screen inside the court.

[8] The record of the proceedings reflects that the Magistrate had the following discourse with the complainant before she gave evidence:

“Thanks. Lady, what is your name? …… Savah.

Sa? …… Savah.

Savah …… Yes.

And your surname is? …… Sorry?

Your surname is? ……. Isaacs.

Isaacs. Which standard are you doing? …… Sorry?

Which standard are you doing? ……. Standard 3.

How old are you now? …… 11.

I have been advised by the state prosecutor that your religion is Muslim. Is that true? … Excuse me?

I have been advised by the state prosecutor that your religion (sic) Muslim ……. Yes.

You are a Muslim by religion? ….. Yes.

And then you know the difference between truth and lies …… Excuse me?

You know the difference between truth and lies …. Yes.

And you know ….. Do you attend church?

(Machine is then switched on and off) …… I can’t hear you so nicely.

Yes.

Is it better? ….. Yes.

Thanks …. I was asking whether you do attend church …. Yes.

And which one of the two, truth or lies, does God like? …… I can’t understand what you are asking me.”

At this point the prosecutor intervened and suggested that the Magistrate, should refer to “Allah” instead of “God”. Heeding this advice, the Magistrate continued as follows:

“And Allah, does Allah like truth or lies? ……. He likes truth.

We also like truth here in court as well. Do you understand that? – Yes.

And do your parents also like the truth? ….. Yes.

Do you promise to tell us the truth then? …… Yes.

You are hereby warned to tell the truth ….. Yes.

Nothing but the truth ….. Yes.

And do you promise to do that? …. Yes.

Thanks.”

[9] The criticism levelled at the Magistrate, with regard to the complainant’s testimony, is that she was admonished in terms of section 164 of the Act, instead of taking the prescribed oath in terms of section 162(1) of the Act, and further that this was done in circumstances where the Magistrate did not establish whether the complainant understood the nature and the import of the oath. Such a finding would be based on considerations of youthfulness, defective education or some other cause.

[10] It was also argued that there was no indication (not even impliedly) that youthfulness was the basis. It was submitted that one could have assumed such a basis if the complainant was seven years old and younger, but not if she was already eleven years old. The complainant’s education also does not appear to be defective either According to the appellant, the Magistrate failed to establish whether the complainant could distinguish between truth and lies.

[11] Before the complainant’s mother gave her testimony, she was warned by the Magistrate to tell the truth, after the prosecutor had alerted him (the Magistrate) to the fact that this witness was also a Muslim. The record reflects the following:

“Thanks. M’am you have no objection in taking a warning. You are hereby warned by this court to tell the truth and nothing but the whole truth. Do you promise to do so? ……. Yes. I do.

You are hereby warned then to do so in terms of the Criminal Procedure Act …. Okay. Thanks.”

[12] It was submitted that the warning administered to the complainant’s mother was also irregular because none of the grounds or reasons for applying section 164 of the Act (an admonition) existed in respect of her. The appellant also contended that the Magistrate’s enquiry after warning this witness, by asking her to promise to tell the truth, cannot be regarded as an affirmation in terms of section 163 of the Act, which prescribes the manner in which an affirmation must take place.

[13] The fourteen year old brother of the complainant was also admonished because he too was a Muslim. According to the record the following exchange took place:

“You can take the oath or maybe you are saying you are Muslim …… Yes.

Do you know the difference between truth and lies …..? Yes.

And you also know that your Allah likes truth …. Yes.

Do you promise to tell us the truth and nothing else but the whole truth? ….. Yes.

If that is so, you are hereby warned by this court to tell the truth, nothing else but the truth …. Yes.

[14] Regarding this witness, the objections raised by the appellant in respect of the other two witnesses, were repeated. In addition, the point was made (and correctly so), that the mere fact that a witness is of the Islamic faith, does not warrant an inference that the witness objects to taking the prescribed oath. It was also pointed out that the age of the complainant’s brother was no ground for invoking section 164 of the Act, which was clearly the section in terms of which the Magistrate was acting, or had in mind when he warned this witness.

[15] In my view, there was no reason for a departure from administering the prescribed oath, and resorting to an admonition in terms of section 164 of the Act, even in respect of the relatively young complainant in this case.

[16] In the matter of S v Ndlela (supra, at 225E), Didcott J set out the correct way of applying sections 162 and 163 of the Act. He held that:

“It is for each witness himself to decline to take the oath. Unless he does so he must be assumed to regard it as binding. S v Kahn 1979 (1) SA 583 (N) decided that”.

[17] The Magistrate seems to have assumed that because the three witnesses were of the Islamic faith, they would automatically object to the prescribed oath and would not be prepared to take the oath. He erred in doing so. Once he deviated from administering the oath in terms of section 162 of the Act, and attempted to administer an affirmation and admonition as envisaged in sections 163 and or 164 of the Act, he compounded his error by not applying the latter sections properly either. In respect of his attempt to apply section 164, he should first have established whether the complainant and her brother understood the oath. Any finding as to the inability to take the oath, must be preceded by some form of enquiry or investigation, albeit not an express or formal one. This, the Magistrate also failed to do. (Vide: S v B supra at 64F, and S v Sikhipha 2006 (2) SACR 439 (SCA)).

[18] Even though the complainant was eight years old when the alleged incident occurred, she was eleven years old when she gave evidence.

Without any enquiry, there could be no proper finding that her youthfulness was the basis for not administering the oath. Neither was there an indication that her education was defective (she was in Grade 5) to the extent that she could not understand the oath. In S v Pienaar 2001 SACR 391 (C) the Magistrate in the court a quo was critized for assuming that a thirteen year old person was too young to understand the oath. It was further held that even younger persons might regard the oath as binding on their consciences and their evidence should rather be on oath, than not. The same principles apply with even more force, to the testimony of the complainant’s brother.

[19] The Magistrate’s attempt to establish whether the complainant and her brother knew the difference between truth and lies when he admonished them was also insufficient for purposes of compliance with section 164 of the Act. The remarks of Rose-Innes J in S v V 1998 (2) SACR 651 (C) at 652 h-i, in respect of admonishing a witness are apposite:

“Similarly where a witness does not understand the religious sanction of the oath and resort is had to section 164 to admonish the witness to speak the whole truth, the witness cannot be so admonished unless she comprehends what it is to speak the truth and to shun falsehood in her evidence. This capacity to understand the difference between truth and falsehood is thus a prerequisite for the oath, the affirmation and an admonition in terms of section 164.”

[20] In my view, there is merit in the appellant’s counsel’s submission that to simply ask a witness whether Allah and the parents of the witness “like truth”, and whether she knows the difference between truth and lies, is to leave the witness to decide, (instead of the Magistrate by further enquiry), whether the witness indeed knows the difference.

[21] In respect of the complainant’s mother, the Magistrate insofar as he intended to apply section 163 of the Act when requesting her to “promise” to tell the truth, committed an irregularity by not following the prescribed formula contained in that section. If it was an attempt to apply section 164 in respect of her testimony, it constituted another irregularity for the same reasons as to why the invocation of section 164 was irregular in respect of the other witnesses. Clearly considerations of ignorance could not apply to her.

[22] In respect of all three witnesses there was no compliance with the provisions of section 162, 163 or 164 of the Act. The result thereof is that their evidence is inadmissible. The remaining evidence is entirely insufficient to support a conviction. (Vide: S v Malinga 2002 (1) SACR 615 (N) at 617g). Accordingly, the conviction should be set aside.

The Merits

[23] The conviction stands to be set aside, not only on grounds of procedural irregularities, but also because of incorrect factual findings and misdirections in relation to the appellant’s guilt.

[24] The complainant’s version was that during a visit to the appellant’s home in 2002, where she and her brother played with his children, the appellant called her into a room in the house. He then knelt before her and said he wanted to see whether she had “pimples”, and pulled down her panties. Then he proceeded to rub her vagina, as if he was putting ointment on her. She said she objected, pushed him away and went outside to where her brother, was playing cricket with the appellant’s sons. She reported the incident to her brother, but he disbelieved her. Two years later, motivated by what she had heard from her mother about another relative being improperly touched by the appellant, she told her sister of the incident. Thereafter she wrote a note reporting the incident to her mother and placed the note on her mother’s bed. The initial reaction of her mother was to throw the note in a dustbin, but she later discussed it with the family. The appellant was then summoned and confronted with the complainant’s allegation, which he denied. According to the complainant’s mother, the appellant’s response was that he had only rubbed ointment on her.

[25] The appellant recalls the incident to be in September 2001, when he still lived on a bigger property in Port Elizabeth. In 2002, he and his family were living in a smaller house. According to the complainant, the incident did take place in the bigger house. There was some confusion about the two homes, but it appears to be the appellant’s attorney who was confused.

[26] The appellant’s evidence was that on a day in September 2001, the complainant and her cousins and siblings were playing outside the house with the appellant’s children. He was busy with woodwork inside the house. He saw the complainant coming out of the toilet, scratching her pelvic area. He stopped her and pulled her pants away from her body to inspect her. He found that she was suffering from scabies. He said that he often came across disadvantaged children who were afflicted with the skin condition known as scabies (in his capacity as primary school teacher). He called his wife to confirm the position. The complainant was to inform her mother of the condition. Dr Serfontein, the complainant’s doctor, confirmed that the complainant was treated for scabies in September 2001. The appellant’s wife also gave evidence and corroborated the appellant’s testimony.

[27] One of the most crucial findings of the Magistrate, based on a misdirection which clearly determined his conclusion as to the appellant’s guilt, was his finding that it was “common cause that the accused touched the complainant’s private parts”. The appellant never said so. He only conceded that he may have touched her skin when he pulled away her tracksuit trousers to see whether she had scabies. It is hardly likely that the appellant intended to concede to touching the complainant’s genitals on his version of the inspection of her pelvic area. The Magistrate’s misdirection on this aspect is repeated where he found that the appellant had confirmed that he touched the complainant’s vagina. The magistrate held that the appellant had corroborated the complainant’s version in certain areas. He listed them. The first is:

“1. The accused called her but according to the accused, not from outside”.

The appellant’s testimony was that he stopped her as she was leaving the toilet. He did not say he called her to a room. Cross-examination of the appellant on this aspect showed that even the prosecution did not understand his evidence in this way. The appellant was asked:

“And this was also when you stopped Savah and talked to her ….. Yes.”

[28] The second point listed was the common cause fact that the appellant had knelt before the complainant. This fact tends to support the appellant’s version and is not a material fact. The third point listed, namely confirmation by the appellant that he had touched the complainant’s genitalia, is a misdirection I have already dealt with above. The fourth point listed by the Magistrate was that the appellant had made mention of “pimples” and that this was confirmed by the complainant. This evidence tends to support the appellant’s version, not the complainant’s.

[29] In my view, the magistrate erred in accepting the evidence of the complainant and some of the state witnesses, without considering some serious discrepancies. One of the discrepancies between the testimonies of the complainant’s brother and the complainant was that the complainant said she made the report to him outside the house, where the boys were playing cricket. He said it occurred on their way home.

[30] The complainant’s mother emphatically denied that the complainant had suffered from scabies, contradicting Dr Serfontein and the complainant. Furthermore, the complainant’s mother also disputed her daughter’s version that she had told her (the complainant) of the cousin who had allegedly also been touched or interfered with by the applicant. Clearly one of them is not truthful on this aspect.

[31] The testimony of the clinical psychologist (Mr D Swarts) who consulted with the complainant after she had reported the incident, is also significant. His testimony was that prior to the disclosure of the incident to her parents, the complainant was completely normal. It was only after she had made the disclosure that she was troubled with bedwetting, nail biting and nightmares (involving fear and improper touching) and other behavioural changes, reported to him by her parents. The Magistrate seems to have considered only the report prepared by this witness, which was based on what the parents had told him. He appears to have paid no attention to the concessions made in favour of the appellant namely that, prior to the disclosure, she was “fine” and showed no signs of trauma, and that such a lack of trauma was unusual in this type of abuse.

[32] Despite the aforesaid deficiencies (and others not necessary to list here) in the case for the prosecution, the Magistrate nonetheless saw no cause for concern in them, and found that there was “no reason in logic” why the State’s case should be rejected. Yet, there is also no good reason given as to why the appellant’s version should have been rejected. In my view, the Magistrate should have approached the evidence of the state witnesses with more caution, particularly since the evidence of the complainant, a single witness, was not corroborated in any material respect.

[33] Given the aforesaid considerations, and the fact that the appellant did not give contradictory evidence, it could reasonably and possibly be true that the appellant had no intention to indecently assault the complainant.

[34] Accordingly I would uphold the appeal and set aside the conviction and the sentence.

______

E REVELAS

Judge of the High Court

PLASKET J: I agree and it is so ordered.

____

C PLASKET