S v Viveiros (75/98) [2000] ZASCA 95; [2000] 2 All SA 86 (A) (9 March 2000)

S v Viveiros (75/98) [2000] ZASCA 95; [2000] 2 All SA 86 (A) (9 March 2000)

The Supreme Court of Appeal found that the magistrate failed to properly apply the cautionary rule to the evidence of young child complainants and did not appreciate the significance of the onus resting on the State. The magistrate incorrectly relied on the accused's failure to convince the court and did not adequately consider the possibility of fabrication or bias among witnesses. The evidence of the complainants was found to be unreliable, with discrepancies, lack of corroboration, and possible motives for fabrication. The appellant's version was not shown to be false beyond reasonable doubt, and the State did not discharge its onus. Accordingly, the convictions and sentences on the...

Citation
[2000] ZASCA 95
Parties
Appellant: M V H Viveiros; Respondent: The State
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
9 March 2000
Case Number
75/98
Procedural Posture
Criminal Appeal / Appeal Against Conviction
Outcome
Appeal allowed; convictions and sentences set aside.
Judges
Hefer, Zulman, Mthiyane
Legal Topics
Indecent Assault, Sodomy, Child Witness Evidence, Cautionary Rule, Onus of Proof
Criminal Law Indecent Assault Sodomy Child Witness Evidence Cautionary Rule Onus of Proof

Case Brief

Summary, issues, holding and outcome

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Parties

M V H Viveiros

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction

Legal Issues

  1. 1 Whether the evidence of child complainants was sufficiently reliable to sustain convictions for indecent assault.
  2. 2 Whether the magistrate correctly applied the cautionary rule to the evidence of young children in sexual offence cases.
  3. 3 Whether the appellant's version was reasonably possibly true and whether the State discharged its onus beyond reasonable doubt.

Ratio Decidendi

The Supreme Court of Appeal found that the magistrate failed to properly apply the cautionary rule to the evidence of young child complainants and did not appreciate the significance of the onus resting on the State. The magistrate incorrectly relied on the accused's failure to convince the court and did not adequately consider the possibility of fabrication or bias among witnesses. The evidence of the complainants was found to be unreliable, with discrepancies, lack of corroboration, and possible motives for fabrication. The appellant's version was not shown to be false beyond reasonable doubt, and the State did not discharge its onus. Accordingly, the convictions and sentences on the...

Court Disposition

Appeal allowed; convictions and sentences set aside.

Orders

  • The appeal is allowed.
  • The convictions and sentences in question are set aside.