S.E.D v S (AR 563/18) [2019] ZAKZPHC 73; 2020 (1) SACR 78 (KZP) (8 November 2019)

S.E.D v S (AR 563/18) [2019] ZAKZPHC 73; 2020 (1) SACR 78 (KZP) (8 November 2019)

The court found that the convictions for sexual assault and attempted rape did not constitute improper duplication, as the elements of the two offences are distinct. The evidence established that the appellant committed two separate criminal acts: sexual assault by oral contact and attempted rape by attempting penetration. The court held that the enquiry into the complainant's competency was sufficient, and although the sequence of swearing in was not ideal, the complainant understood the importance of telling the truth and was a competent witness. The evidence of the complainant, corroborated by her mother and the social worker, was credible and reliable. The appellant's denial and...

Citation
[2019] ZAKZPHC 73
Parties
Appellant: S[….] E[….] D[….]; Respondent: THE STATE
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
8 November 2019
Case Number
AR 563/18
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence
Outcome
The appeal against conviction is dismissed; convictions are confirmed. The appeal against sentence succeeds in part; the sentence is substituted as specified.
Judges
Masipa, Naidu
Legal Topics
Sexual Offences, Competency of Child Witness, Duplication of Convictions, Sentencing Principles, Minimum Sentences, Admissibility of Evidence
Criminal Law Sexual Offences Competency of Child Witness Duplication of Convictions Sentencing Principles Minimum Sentences Admissibility of Evidence

Case Brief

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Parties

S[….] E[….] D[….]

Appellant

THE STATE

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence

Legal Issues

  1. 1 Whether the convictions for sexual assault and attempted rape constitute improper duplication of convictions.
  2. 2 Whether the child complainant was properly sworn in or admonished as a competent witness.
  3. 3 Whether the evidence of the complainant was reliable and sufficient for conviction.

Ratio Decidendi

The court found that the convictions for sexual assault and attempted rape did not constitute improper duplication, as the elements of the two offences are distinct. The evidence established that the appellant committed two separate criminal acts: sexual assault by oral contact and attempted rape by attempting penetration. The court held that the enquiry into the complainant's competency was sufficient, and although the sequence of swearing in was not ideal, the complainant understood the importance of telling the truth and was a competent witness. The evidence of the complainant, corroborated by her mother and the social worker, was credible and reliable. The appellant's denial and...

Court Disposition

The appeal against conviction is dismissed; convictions are confirmed. The appeal against sentence succeeds in part; the sentence is substituted as specified.

Orders

  • The appeal in respect of both convictions is dismissed and the convictions are confirmed.
  • In count 1, the appellant is sentenced to eight years’ imprisonment.