Brief Summary

Criminal Law — Appeal against conviction and sentence — Application for leave to lead further evidence — Main witness deceased — Requirements for leading further evidence satisfied — Conviction and sentence set aside in the interests of justice. The appellant was convicted of rape in 2000 and sentenced to 10 years' imprisonment. Subsequent to the conviction, the complainant recanted her testimony, stating she had falsely implicated the appellant. An application was made to lead further evidence, which was granted, leading to the appeal. The Supreme Court of Appeal found that the interests of justice necessitated the setting aside of the conviction and sentence.

Comprehensive Summary

Summary of Judgment

1. Introduction

These proceedings concerned an appeal to the Supreme Court of Appeal of South Africa (SCA) against a conviction and sentence for rape, coupled with an application for leave to adduce further evidence after the conclusion of the trial and the dismissal of an earlier appeal.

The appellant was Z[…] A[…] L[…], the accused person at trial. The respondent was the State. The appeal was heard by the SCA (Mpati P, Bosielo JA and Willis JA) and judgment was delivered on 1 October 2014.

The matter originated in the Regional Court, Verulam, where the appellant was convicted on 2 February 2000 of rape and sentenced to 10 years’ imprisonment. An appeal to the KwaZulu-Natal High Court, Pietermaritzburg was dismissed on 14 September 2000. Several years later, on 20 December 2004, the High Court granted the appellant leave to appeal to the SCA and also granted leave to lead further evidence, based on post-trial material in which the complainant recanted her trial testimony.

The general subject-matter was the reliability and sustainability of a rape conviction where the complainant later made sworn statements asserting that she had falsely implicated the appellant, and where the procedural mechanism invoked was the reception of further evidence on appeal, complicated by the later deaths of the complainant and two potential corroborating witnesses.

2. Material Facts

The complainant was born in November 1983. The charge alleged that the appellant, during November 1997 to March 1998, at or near Verulam, intentionally and unlawfully had sexual intercourse with the complainant (described in the charge sheet as “13 years”) on several occasions, without her consent. It was not disputed that the complainant may have been 13 or about to turn 14 at the time of the first alleged incident.

At trial, the State’s case relied mainly on the evidence of the complainant and her mother. The complainant testified that her mother, a clothing vendor, sent her to the appellant’s house in Canelands, Verulam to collect money owed for clothing bought on credit. On the first occasion (said to be around midday in November 1997), the complainant’s evidence was that she was inside the appellant’s bedroom when he closed the door, told her to undress, undressed her when she refused, pushed her onto the bed, and penetrated her. She testified to pain, that the appellant moved while on top of her, and that she tried unsuccessfully to push him aside. She further testified that he told her not to tell her mother, and that she did not report the incident immediately because she was not close to her mother and thought her mother would not believe her.

The complainant further testified that similar incidents occurred five or six times between November 1997 and March 1998, again at the appellant’s residence, usually when she went there in connection with her mother’s clothing business. The mother’s evidence was that she noticed a change in the complainant’s behaviour, suspected a boyfriend, and arranged for an aunt to examine the complainant to determine whether she was still a virgin. After the aunt concluded she was no longer a virgin, the complainant allegedly told the aunt that the appellant had “taken her virginity”, and the mother reported the matter to the police.

A medical practitioner, Dr Jacques Terry Robert, examined the complainant on 8 April 1998. He found that the hymenal orifice appeared widened to slightly more than 15mm, which could be consistent with previous penetration, but he could not state this with certainty. He concluded that he did not believe there was evidence suggesting full penile penetration ever occurred.

The appellant’s trial version was a denial that he had sexual intercourse with the complainant. He testified that he was never alone with her because, when she came to collect money, she was always accompanied by her siblings. He also testified that he once met the complainant at an area known as Hilltop late in the afternoon and that she said she was “coming from men”; he suggested this could explain a false implication.

After conviction and while the appellant was serving his sentence, there was a significant post-trial development. In December 2002, the complainant made a sworn statement to a police officer (Dumisani Raymond Gwala) stating that she had falsely implicated the appellant. The statement recorded that she had a boyfriend, M[…], and that she previously had consensual sex with him.

Subsequently, Detective Captain Mzwakhile Chonco investigated the veracity of the complainant’s recantation and recorded his investigative actions in a sworn statement signed on 5 August 2004. According to his statement, the complainant maintained during interviews (including an interview with an advocate in the office of the Director of Public Prosecutions) that she had lied in court, and she persisted despite being warned of potential perjury consequences.

An affidavit by the complainant dated 16 November 2004 was placed before the High Court in support of an application for leave to appeal and for leave to lead further evidence. In that affidavit, she explained that she had been in a consensual sexual relationship with her boyfriend, that she feared her mother’s reaction (including the possibility of being beaten or thrown out), and that other adult women suggested to her that it had been her “uncle” (a reference to the appellant) and she eventually adopted that version without appreciating that it would result in his imprisonment. The High Court granted leave to appeal and leave to lead further evidence on 20 December 2004, and bail was fixed at R50.

Shortly before the SCA hearing, the State informed the court that the complainant had died on 17 October 2010 and that two other potential witnesses, Detective Captain Chonco and the complainant’s alleged boyfriend M[…] N[…], had also died. The SCA treated these deaths as directly affecting the practical availability of the further evidence contemplated by the earlier order granting leave to adduce it.

3. Legal Issues

The central legal questions concerned the procedural and substantive consequences of an application to re-open factual issues by adducing further evidence after a conviction and dismissal of an initial appeal, specifically where the new material consisted of a complainant’s sworn recantation of trial testimony.

A further question was how the court should respond where the requirements for admitting further evidence appeared to be satisfied in principle, but the contemplated evidence had become impossible to lead because the main witness and key potential witnesses had died before the appeal could be heard.

The dispute therefore primarily involved the application of established legal principles to fact (whether the established criteria for further evidence were met on the papers) and a consequential, evaluative judgment about the interests of justice in crafting an appropriate remedy once a remittal for further evidence was no longer practically feasible.

4. Court’s Reasoning

The SCA approached the matter through the lens of established appellate principles concerning the reception of further evidence. It emphasised that it is generally not in the interests of the administration of justice for factual issues, once judicially investigated and pronounced upon, to be lightly re-opened. At the same time, it accepted that further evidence may be admitted if the recognised requirements are met.

Relying on authority, the SCA identified the requirements typically applicable to an application to lead further evidence, namely that there should be a reasonably sufficient explanation why the evidence was not led at trial, that there should be a prima facie likelihood of the truth of the evidence, and that the evidence should be materially relevant to the outcome. The court considered these requirements against the affidavits and statements placed before the High Court in 2004, including the complainant’s affidavit and the investigator’s sworn statement.

On the first requirement, the court reasoned that the appellant could not have been expected to lead at trial evidence that depended on a later recantation by the complainant. The court treated the inability to adduce such evidence at the time of trial as self-evident, given that the complainant’s alleged change of stance occurred only years later.

On the prima facie plausibility of the new version, the court pointed to aspects of the trial record that tended to support the possibility that the complainant’s later affidavit could be true. It highlighted internal tensions in the complainant’s trial testimony, including her evidence about threats. In particular, the court noted that the complainant did not initially testify to threats in evidence-in-chief but later, under cross-examination, claimed she was told she would be in danger if she reported the incident. The court also noted evidence suggesting the complainant feared her mother’s response if she had a boyfriend. In addition, the medical evidence recorded that the complainant had scars and old bruises consistent with sjambok wounds inflicted by her mother, which the court regarded as lending contextual support to the complainant’s later claim that she feared being beaten or expelled from the home.

On material relevance, the court considered that if the complainant’s recantation and explanation were accepted, they went to the heart of the conviction. The new evidence was not collateral but struck directly at the identification of the perpetrator and the truthfulness of the allegations, and would therefore be materially relevant to the outcome.

Having reached the view that the requirements for a remittal to hear further evidence were met, the court then confronted the practical obstacle that the complainant and other potential witnesses were deceased. This meant that the remedy of remittal for further evidence, while theoretically justified by the criteria, was no longer capable of implementation in the ordinary way.

The court considered that it would be a serious injustice if the appellant were denied relief merely because it had become impossible, through no fault of his, to present the evidence that had grounded the order granting leave to adduce it. In this context, and against the background that both counsel ultimately supported setting aside the conviction and sentence, the SCA held that the appropriate course, in the interests of justice, was to set aside the conviction and sentence.

In addition, the court indicated that it had grave doubts about the correctness of the conviction even on the existing trial record. It referred to material contradictions and discrepancies, including the issue of whether the complainant was accompanied when she went to the appellant’s house and how the prosecutor’s follow-up question addressed that difficulty. While the court did not undertake a full merits re-determination, it treated these concerns as reinforcing the justice of setting aside the conviction and sentence.

5. Outcome and Relief

The SCA made an order that, in all the circumstances, the appellant’s conviction and sentence were set aside.

The relief effectively granted final setting-aside of both conviction and sentence, rather than remitting the matter for the hearing of further evidence, because the relevant witnesses had died and the further evidence could no longer be led.

No separate costs order was recorded in the judgment.

Cases Cited

S v Ndweni and Others 1999 (2) SACR 225 (SCA).

S v De Jager 1965 (2) SA 612 (A).

Legislation Cited

No legislation was cited in the judgment.

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The Supreme Court of Appeal held that the established requirements for the reception of further evidence on appeal were satisfied on the material placed before the court, particularly because the appellant could not have led such evidence at trial, the new material bore prima facie credibility, and it was materially relevant to the outcome.

The court further held that the subsequent deaths of the complainant and key potential witnesses rendered a remittal for the hearing of further evidence practically impossible, and that it would be contrary to the interests of justice to refuse substantive relief on that basis. The court therefore set aside the appellant’s conviction and sentence. The court also expressed grave doubts about the correctness of the conviction on the trial record, which supported the appropriateness of the result.

LEGAL PRINCIPLES

The judgment reaffirmed that it is generally not in the interests of the administration of justice for factual issues, once judicially investigated and decided, to be readily reopened; however, an appellate court may permit the leading of further evidence where recognised requirements are met.

Those requirements were articulated and applied as follows: there must be a reasonably sufficient explanation why the evidence was not led at trial; there must be a prima facie likelihood that the evidence is true; and the evidence must be materially relevant to the outcome of the trial.

Where those requirements are satisfied, but the reception of the further evidence becomes impossible due to circumstances such as the death of essential witnesses, the court may craft an alternative remedy. In this case, the court applied an overarching interests of justice assessment to prevent a result where an accused would be deprived of relief solely because the later-unavailable evidence could not be formally presented, particularly where that evidence went to the core reliability of the conviction and where the existing record raised serious concerns about the correctness of the verdict.

L v S (1049/2013) [2014] ZASCA 164 (1 October 2014)