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: YES / NO
Circulate to Judges: YES / NO
Circulate to Magistrates: YES / NO
Circulate to Regional Magistrates: YES / NO

IN THE HIGH COURT OF SOUTH AFRICA

(Northern Cape High Court, Kimberley)

CASE NO: CA&R43/2016

DATE HEARD: 01/08/2016
SIGNED: 04/08/2016

In the matter between:

EDWARD SMIT Appellant

and

THE STATE Respondent

Coram: Olivier J et Erasmus AJ

REASONS

Olivier J
 2

[1.] The appellant appeared in the Regional Court, Postmasburg, on a

charge of having committed an act of sexual penetration with the
15 year old complainant, in contravention of the provisions of
section 15(1) of the Criminal Law (Sexual Offences and Related
Matters) Amendment Act1 (“the Act”). The appellant, according to
the charge sheet a 40 year old male, pleaded not guilty to the
charge and in explanation of his plea stated that his defence was a
denial of all allegations and that everything was placed in dispute.
The appellant was convicted as charged and was sentenced to 5
years imprisonment, conditionally suspended for a period of 5
years. Leave to appeal against the conviction was granted on
petition and after the hearing of the appeal the following orders
were made:

“1. The appeal succeeds and the conviction

and sentence are set aside.

2. The Clerk of the Regional Court,

Postmasburg and the Registrar of this
Court are directed to ensure that the
name of the appellant is removed from
the National Register for Sexual Offenders
in terms of Act 32 of 2007.”

What follows are the reasons for those orders.

1
32 of 2007
 3

[2.] On the day of the alleged incident, 31 January 2014, a sport day was
held at the school at which the appellant was a teacher and the
complainant a learner. The appellant had been tasked with
photographing the events. The complainant was on her way to the
school when the appellant picked her up in his vehicle and took her
with him to his home. This much was common cause. It was what
happened at that house, and how long the appellant and the
complainant had been there before returning to the school, that
were the issues in dispute.

[3.] In cross-examination it was put to the complainant that the

appellant had been on his way home in his vehicle to fetch a camera
when he came across the complainant and picked her up. It was
put to the complainant that they merely had a cool drink at the
appellant’s house before leaving and that they were back at the
school by 09:00.

[4.] The complainant’s version was that the fact that she was picked up
by the appellant had not been a mere coincidence. According to
her it had been arranged between the two of them by means of text
messages. In cross-examination she testified that it was “Past
08:00” when the appellant picked her up. She admitted having
been given a cool drink at the house of the appellant, but she
denied that that was all that had happened there. According to her
she and the appellant in fact had sexual intercourse in various ways,
 4

and over a prolonged period of time and in different rooms of the

house, until they eventually arrived back at the school at about
11:30.

[5.] The appellant did not himself testify, but the evidence of two
witnesses was presented on his behalf. Mr. G. R., also a learner at
the particular school, testified that he had seen the appellant
standing at the tuck shop at the school at 09:04 that morning. He
remembered the time, because he had gone to fetch a cell phone
and had noticed the time on the cell phone.

[6.] Ms Erika Beukes apparently operated a mobile tuck shop at the

sport day. According to her she saw the appellant standing there at
08:50. She explained that she was sure about the time, because she
had been waiting for her husband to deliver something there at the
time.

[7.] The evidence of Mr Roman and Ms Beukes was not discredited, or

even seriously challenged. On their evidence the appellant could
clearly not have been at his house from “Past 08:00” until
approximately 11:30, as testified by the complainant.

[8.] The complainant, on the other hand, was clearly not a good witness
and in her evidence she deviated from the contents of her police
statement in several respects.
 5

[9.] It is, with respect, difficult to discern from the judgment exactly why
the appellant was convicted despite the evidence of Mr Roman and
Ms Beukes. When regard is, however, had to the subsequent
proceedings in the application for leave to appeal, and to the
questions put to the appellant’s attorney, it would appear that the
attitude of the Regional Magistrate to their evidence was that it did
not exclude the possibility that the appellant may have been with
the complainant at his house before being seen by Mr Roman and
Ms Beukes, or thereafter. If this had indeed been the approach
adopted by the Regional Magistrate it would, with respect, have
been fundamentally wrong.

9.1 In the first place it was, as already mentioned, in any event

common cause that the appellant and the complainant had
been at his house at some stage that morning.

9.2 The Regional Magistrate seems to have lost sight of the fact
that, on the complainant’s version, it would not have been
possible for the appellant to have been seen at the school at
either 08:50 or 09:04.

9.3 It would in any event not have been good enough if, on the
evidence of Mr Roman and Ms Beukes, there was “a
possibility” that the appellant may have been with the
complainant at his house after 09:00. What the prosecution
needed to prove, not as a mere possibility but indeed
 6

beyond a reasonable doubt, was that the appellant and the

complainant had indeed been at his house not only around
09:00 that morning, but indeed for a long time thereafter.

[10.] We were of the view that, on this basis alone, the appeal against the
conviction should succeed. There was, however, another and even
more fundamental problem in the evidence upon which the
Regional Magistrate convicted the appellant.

[11.] The relevant provisions of section 15(1) of the Act read as follows:

“A person (“A”) who commits an act of sexual

penetration with a child (“B”) who is 12 years
of age or older but under the age of 16 years is,
despite the consent of B to the commission of
such an act, guilty of the offence of having
committed an act of consensual sexual
penetration with a child, ……..”

[12.] The age of the complainant was therefore an essential element of

the crime with which the appellant had been charged. Despite the
fact that it appears from the record that at least the father of the
complainant had been present at court at the time that her
evidence was presented, the only evidence presented by the
prosecution as regards the age of the complainant was her own.
She testified that her date of birth was 10 February 1998, which
 7

would have meant that the incident had taken place less than 2
weeks before her 16th birthday.

[13.] The problem is, however, that “a statement by a person as to the

date when he was born is hearsay” 2. No explanation was proffered
by the prosecutor for not presenting better evidence than this
regard the complainant’s age. As I have already mentioned, the
appellant had placed everything in dispute in his plea-explanation,
which would obviously include this element of the crime.

[14.] The fact that this evidence had not been objected to or challenged
did not render it admissible3. Even if it could, evidence like this
would obviously not have had any evidential value 4.

[15.] The facts of this matter are easily distinguishable from those in S v
Waldeck5. In that matter the source of the hearsay evidence had
been the deceased, and therefore unavailable to testify. In the
present case at least one of the parents of the complainant was
available as a witness. Unlike in the Waldeck case, the defence was
not in the present matter warned beforehand that the prosecution
intended relying on hearsay evidence. Lastly, it appears that the
court in the Waldeck matter was, on the rest of the evidence
presented by the prosecution, satisfied that the deceased would
2
R v C 1955 (1) SA 380 (K) at 381 G; Compare also Rex v Lakhoo 1943 GWLD 10 at 11 – 12; Rex v
Corris 1931 TPD 471 at 474 – 475; S v Mbelo [2001] JOL 8225 (NC) para 8
3
Compare R v C [1955] 1 All SA 297 (C) at 300; S v Koralev and Another 2006 (2) SACR 298 (N) at
304a-d; Kaputuaza and Another v Executive Committee of the Administration for the Hereros and
Others 1984 (4) SA 295 (SWA) at 312F; Rex v Chabane 1948 (1) SA 272 (O) at 276
4
Compare Mapule v S [2012] JOL 29242 (SCA) para [6]
5
2006 (2) SACR 120 (NC)
 8

have been a credible source of the information. In the present case

there is simply no other evidence than that of the complainant.

[16.] There had therefore quite simply been no admissible evidence that
the complainant had at the time of the incident been under the age
of 16 years old. That the appellant, as a teacher at the school
attended by the complainant, may have been aware of the age of
the complainant, is not the point. What was concerned here was
what the age of the complainant had indeed at the particular time
been; not what the appellant had thought it to be.

[17.] Even in cases like these, where the interests of young complainants
in sexual matters are concerned, the rules of evidence should be
complied with –

“Courts in civil or criminal cases faced with the

legitimate complaints of persons who are
victims of sexually inappropriate behaviour are
obliged in terms of the Constitution to respond
in a matter that affords the appropriate
redress and protection. Vulnerable sections of
the community, who often fall prey to such
behaviour, are entitled to expect no less from
the judiciary. However, in considering whether
or not claims are justified, care should be taken
to ensure that evidentiary rules and procedural
 9

safeguards are properly applied and adhered

to.”6

[18.] Here the prosecution failed the complainant. It could, on the face
of it, quite easily have presented better, and indeed admissible,
evidence of the complainant’s age. It failed to do so, or to explain
why it could not be done.

[19.] Also in other respects the manner in which the prosecution of the
case was conducted left much to be desired. The evidence of a
number of other witnesses, whose evidence could possibly have
assisted, was not presented. This included the family member to
whom the complainant had made a report 7 and people who had
according to the complainant apparently been in possession of
incriminating pictures. We trust that Ms Ilanga, counsel for the
respondent, and her office will take appropriate steps in this regard.

______________________
C J OLIVIER
JUDGE
NORTHERN CAPE DIVISION

6
S v Stevens [2005] 1 All SA 1 (SCA) para [1]
7
Although not spontaneously, and only about two weeks after the events.
 10

I concur.

______________________
S L ERASMUS
ACTING JUDGE
NORTHERN CAPE DIVISION

For the Appellant: Mr R R Bode

(Engelsman Magabane Inc.)

For the Respondent: Adv K F Ilanga

(Office of the Director of Public Prosecutions)