WJC and Another v S (A112/2022) [2024] ZAGPPHC 328 (11 April 2024)

IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA

CASE NO: A112-2022

REPORTABLE OF INTEREST TO OTHER JUDGES REVISED DATE: 11/04/2024

In the matter between:

WJC FIRST APPELLANT

ZC SECOND APPELLANT

and

THE STATE RESPONDENT

Order

The following order is made: The appeals against convictions and sentences of both appellants are refused.

Minority Judgment

Greyvenstein AJ

Background

[1] The Appellants are respectively the biological father and mother (hereinafter referred to as the 1 st and 2nd Appellant) of their girl child (hereinafter referred to as LA) and their boy child (hereinafter referred to as AJ), who were respectively five and eight years old at the time of the alleged commission of the offences in 2014.

[2] The Appellants were charged in the Regional Court of Pretoria North in case number SH1/61/2015 with the following counts:

Count 1: c/s 3 of The Sexual Offences and Related Matters Act, Act 32 of 2007 (hereinafter referred to as “SORMA”) – rape of LA; Count 2: c/s 3 of SORMA – rape of AJ; Count 3: c/s 5(1) of SORMA – sexual assault of LA; Count 4: c/s 18(2)(b) of SORMA - sexual grooming of LA; Count 5: c/s 4 of SORMA – compelled rape of AJ; Count 6: c/s 21(1) of SORMA - compelling LA to witness sexual offences, sexual acts or self-masturbation; Count 7: c/s 24B(1)(b) of the Films and Publications Act, Act 65 of 1996 – creation of child pornography; Count 8: c/s 305(3)(a) or (b) or 305(4) of the Children’s Act, Act 38 of 2005 (hereinafter referred to as the Children’s Act) – child abuse or neglect. It is important to note that the chargesheet makes mention that the charge is c/s 305(3)(a) or (b) or 305(4) of the Children’s Act; Count 9: assault with the intent to cause grievous bodily harm in respect of LA; Count 10: assault with the intent to cause grievous bodily harm in respect of AJ; Count 11: c/s 4(a)/4(b) of Act 140 of 1992 – possession of an undesirable dependence producing substance (metcathinone [sic] and dagga)1.

1 It is unclear what the charge was. According to record of proceedings, the State put a charge of c/s 4(a) of the mentioned Act, but also added that the state “focusses on 4(b)”. Section 4(a) of the mentioned Act relates to the dealing in such substance and not with the possession or use thereof. It will be accepted that the State erroneously referred to section 4(a) of the mentioned Act.

[3] On 24 January 2017, both Appellants were found not guilty and discharged in terms of section 174 of the Criminal Procedure Act, Act 51 of 1977 on counts 9 and 10.

[4] On 5 August 2020, both Appellants were convicted on counts 1, 3, 4, 5, 6, 8, 11 and acquitted on counts 2 and 7.

[5] On 2 February 2021, both Appellants were sentenced to life imprisonment in terms of section 51(1) of Act 105 of 1997 on counts 1 and 5 and both Appellants were sentenced to various terms of direct imprisonment on counts 3, 4, 6, 8 and 11.

[6] Both the Appellants are before this Court on appeal against their convictions and sentence on counts 1, 2, 3, 5, 6 and

8. Both Appellants already conceded during the trial that they are guilty of the possession of undesirable dependence producing substances as alleged in count 11.

[7] It may be mentioned at this stage that both Appellants were acquitted on count 2 and reference to a conviction on count 2 in the notice of appeal and other papers before this Court is wrong.

[8] It may also be mentioned that the Appellants were convicted on count 4 (sexual grooming in contravention of section 18(2)(b) of Act 32 of 2007), although the notice of appeal does not mention this conviction. From paragraph 9.3 of the notice of appeal it is however clear that the appeal is noted against the conviction on count 4 as well.

Grounds of appeal2

[9] That the learned Regional Magistrate erred in finding that the State had proved beyond reasonable doubt that both Appellants are guilty;

2 Page 1012 and forward of Volume 8

[10] That the learned Regional Magistrate erred in finding that LA was a competent witness;

[11] That the learned Regional Magistrate erred in accepting the evidence of LA;

[12] That the evidence of LA falls short of being reliable and trustworthy to the extent that her evidence can be accepted beyond reasonable doubt;

[13] That the learned Regional Magistrate was under the wrong impression that he could not adjudicate the competence of LA again at the end of the trial;

[14] That the learned Regional Magistrate wrongly found that LA gave a clear and graphic description of the sexual activities that took place in respect of what LA and AJ had to do and what the others that were involved did to LA and AJ;

[15] That the learned Regional Magistrate concluded that the object used to penetrate LA was a sex toy, which is not true;

[16] That the learned Regional Magistrate did not deal with the contradictions between the report witness, Ms Estelle Smith and LA;

[17] That the learned Regional Magistrate misdirected himself to find that Dr Lukhozi’s evidence is partly corroboration for the evidence of LA;

[18] That the learned Regional Magistrate erred in finding that the evidence of LA during the trial was consistent with her original accusations;

[19] That the impression is created that the learned Regional Magistrate misdirected himself in that section 28(2) of the Constitution, Act 108 of 1996 (hereinafter referred to as the Constitution), altered the onus of proof where a child is the complainant in a sexual misconduct case;

[20] That the learned Regional Magistrate erred in finding that police witnesses were not confronted with the version of the 2 nd Appellant that the police only took photos after they had thrown the clothes out of the cupboards;

[21] That the learned Regional Magistrate erred in accepting the evidence of Dr du Toit as admissible, that her report is admitted by agreement and by accepting her evidence;

[22] That the learned Regional Magistrate erred in relying on the opinions of the police officers that the children were abused, while they were not experts in that field;

[23] That the learned Regional Magistrate wrongly convicted the Appellants of a contravention of section 305(4) of the Children’s Act;

[24] That the learned Regional Magistrate erred in finding that the state’s evidence proved deliberate neglect;

[25] That the learned Regional Magistrate erred in finding that the evidence of the Appellants and their witnesses must be rejected because he accepted the evidence of the State;

[26] It is apparent from the papers and the address on behalf of the Appellants in this court, that they will not pursue the appeal against the sentences imposed, should the conviction be confirmed.

The Evidence

[27] The allegations are that the Appellants, committed these horrendous crimes in 2014 against their biological children, LA and AJ, while the children were respectively five and eight years’ old.

[28] The Appellants pleaded not guilty and elected to remain silent.

[29] The only witness called by the State that gave direct evidence about counts 1 to 7 (all relating to crimes of a sexual or pornographic nature) was LA.

[30] LA gave her evidence with the assistance of an intermediary who was appointed in terms of section 170A of the Criminal Procedure Act, Act 51 of 1977 (hereinafter referred to as the CPA). The provisions of section 170A(3) of the CPA were applied, resulting in LA not being exposed to the Court room and the proceedings inside the Court room. She was in an environment that is child friendly in the company of an intermediary.

[31] LA was questioned by the learned Regional Magistrate and thereafter admonished to speak the truth in terms of section 164 of the CPA.

[32] LA referred to the Appellants as “oom” and “tannie” and testified that they are her “Ma en Pa”. “Oom” is the 1 st Appellant and “Tannie” is the 2 nd Appellant. She referred to Estelle Smith as her “mamma”. She testified that her surname is Smith, and she does not know the surname of the Appellants.

[33] LA testified that she lived in the house with the 1 st and 2nd Appellants, AJ and two other people.

[34] She testified that the 1 st Appellant told her to suck his “tollie” and to rub it up and down and to swallow the “piepie”. It tasted like bad jelly. Thereafter she testified that the 2 nd Appellant told her to suck the “tollie” of the 1 st Appellant and that the 2 nd Appellant showed her how to suck it.

[35] She testified that the 1st Appellant put a stick into her “parrakoekie/piepieplek” and then all the blood came out of her “piepieplek”. She later testified that her parrakoekie

is the place she uses to urinate. She described it as a long brown stick with a sharp end that he got from a tree next to the house. The Court estimated the length indicated by the complainant as between 15- to 20 cm. During this incident the 2nd Appellant, AJ and the friends of the 1st Appellant were present.

[36] She testified that herself and AJ had to take off their clothes and AJ had to lie on top of her while she had to shake (on the bed of the 1st Appellant).

[37] She testified that the 1 st Appellant would press her hard on her shoulders so that she could not get up, and then he would put a stick in her bum’s hole. It was painful.

[38] She testified that she was at the doctor with the 1 st Appellant where the doctor looked at her “parrakoekie” while the 1st Appellant took photos.

[39] Thereafter she said that she had to lie on the bed, with AJ on top of her while the 1st Appellant took photos with a camera and with a phone. This happened many times.

[40] Thereafter she testified that she had to dance while she lay naked when the 1 st Appellant took photos of her. This happened in the presence of AJ and the 2 nd Appellant. AJ’s “verkeerde plekkie” was also photographed while he was naked and had to dance. She testified that the 1 st Appellant put the photos on a cd and gave it to his friends.

[41] She testified that she had to lick and suck the “piepieplek” of the 2 nd Appellant while the 1st Appellant watched.

[42] She testified that AJ also did nasty things to her by putting his “tollie” into her mouth and her bums and she also had to suck it and rub it. This was done on the instructions of the two Appellants.

[43] When LA was asked how it happened that she left her home, she answered that they found a lady near where Aunt M stayed. She testified that they were found alongside the road where they were walking. They walked away as they did not want to live in the house of the Appellants anymore. She was twice asked why they decided to go away, and twice she answered “Daarso in ons kamer”. The third time the question was repeated, she answered that the 1 st Appellant said that they must “fuck off and leave the house” and the 2 nd Appellant said “fokkof and kaffermeid” to herself and AJ. She and AJ then packed goods and walk away as they were sworn at. They slept under a tree and ate hamburgers. They bought the hamburgers at the hamburger place.

[44] She testified that there was no food in the house, and no one looked after her during the day.

[45] Exhibit C, consisting of page 1 (photos 1 – 4), page 2 (photos 7 – 10) and page 6 (photos 19 – 22) was shown to the complainant. She testified that she could remember that the photos on page 1 were taken by the Appellants when she had to stand nicely and smile. She identified AJ on page

3. On page 6 she identified a red suitcase with her shoes and dress inside, as well as Mc Donalds and a shirt. She and AJ packed the suitcase, closed it, and walked away.

[46] Exhibit D photos 5 and 6 are photos of the house that she lived in with the Appellants and others, and a tree. Photo 10 is a photo of the place they slept at, watched television, and got food. Directly thereafter she stated that there was no food in the house, no fridge, and no electricity.

[47] The witness was asked numerous times to tell the Court what happened in the room. The intermediary informed the court that LA was emotional. Upon asking LA for a fifth time what happened in that room, she responded that the 1 st Appellant and R bought medicine that they put into a thing and injected it into her arm, and her legs. LA later described the apparatus used to inject the medicine. She testified that it was painful when the medicine was injected. The learned Regional Magistrate tried to

establish what the effect of the injected medicine was, but she continued to testify that blood came out, it was painful and made her feel bad.

[48] LA was again asked what she had to do in that room, whereupon she responded that she had to clean the house as it was dirty.

[49] LA identified photos 18 to 20 as photos of the room in which she slept with AJ. She pointed out the bed on which she slept. The intermediary described the bed in the photo as a wooden bed without a matrass full of toys.

[50] LA identified photos 31 and 32 as photos of the room of the Appellants. She was asked by the prosecutor if she could tell them one thing that happened in that room. LA did not respond to the question and was asked by the intermediary if she should help her and again asked if she could tell us one thing that happened in that room, whereupon the learned Regional Magistrate intervened and said that they could leave it there.

[51] During cross examination of LA, the defense attorney put it to her that they did not run away from home on the day in question, but that they went to buy a “braaiertjie” for the 1 st Appellant. It was put to her that the 2 nd Appellant went searching for them and she phoned the police. The witness denied the truth of the statements.

[52] It was put to LA that nothing of what she spoke of, happened to her, that she was not penetrated with a stick, fingers, or a penis and that she did not have to lick anyone. She responded that he was lying.

[53] She testified that everything happened on one day, long before she and AJ ran away.

[54] She testified that AJ was present when these things happened to her.

[55] She testified that when photos were taken of her while she was naked, they would put a sticker on, which they would take off and then you see a naked girl.

[56] She was confronted with the fact that the police found no photos of naked children on the computers of the 1 st Appellant to which she responded that he was lying.

[57] She confirmed that she and AJ bought hamburgers at Mc Donalds and on a question where they got the money from to buy the hamburgers, she responded “Ons het geld gekry op by ‘n masjien ding sien hulle nommers, dan is daar ‘n rooie en ‘n groene, hulle tik net die nommers in”.

[58] It was put to her that there is no Mc Donalds close to where they lived, and that the nearest Mc Donalds is very far from their home. She denied it.

[59] During further examination by the learned Regional Magistrate, LA testified that she does not know how long a day is, that they walked for more than a day when they ran away from home.

[60] Mrs. Smith testified that she became the foster parent of LA on 5 September 2014, which is a month after the children were found during the day near a park. According to her, LA was neglected, nervous, and very scared.

[61] She testified that at different stages, LA opened and made reports to her. The first report was about a week after she was placed in her care. At that stage, LA told her that “Pa W...” hurt her by bighting her on her “verkeerde plekkie” and by urinating on her. He took off her clothes and made her lie on her stomach on the bed in the room. He pushed a stick into her from behind. During the incident she was home alone with the 1 st Appellant. He also put her hand on his “verkeerde plekkie” and wi th his hand over her hand made frontwards and backwards movements to stimulate him. He also

put his penis in her mouth and told her to drink it and not spit it out. She also told her that she wiped up the blood that went down to her feet.

[62] A few days or a few weeks later, LA made a second report to her. By then she referred to her mother as “Tannie Z...”. She reported that the 2 nd Appellant told Rouche to insert her fingers into the complainant while the 2 nd Appellant took photographs. They did the same to another boy child, hereinafter referred to as A. The people in the lounge were laughing. She further stated that Bianca also inserted her fingers into her, and that A was crying. She further reported that the 1 st Appellant inserted his “piepieplek” into A and the blood was flowing. She further reported that both Rouche and Bianca took photos with their cellphones. LA was very emotional and was crying when she made the report. She is not sure if she was told anything else as she was praying that the gruesome information that she received must vanish from her head.

[63] Mrs. Smith testified that at a later stage LA also told her that A’s father drove with the 1 st Appellant to buy medicine. Upon their return they injected her first into three places and thereafter they also injected AJ and A. Then the 1 st Appellant hurt A until the blood was flowing, and A’s father hurt her until the blood flowed.