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[2014] ZASCA 186
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Nkomo v S (979/2013) [2014] ZASCA 186 (26 November 2014)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 979/2013
Not Reportable
In
the matter between:
M
K
NKOMO
...........................................................................................................................
Appellant
and
THE
STATE
...........................................................................................................................
Respondent
Neutral
citation:
MK Nkomo v The State
(979/2013)
[2014] ZASCA 186
(26 November 2014)
Coram:
CACHALIA, MBHA JJA and GORVEN AJA
Heard:
05 November 2014
Delivered:
26 November 2014
Summary:
Criminal Procedure – Appeal –
Application for the remittal of a case to a trial court for the
hearing of further evidence
- witness recanting earlier evidence
given at the trial - power of the court to make an order for remittal
to be exercised sparingly
and only when there are exceptional
circumstances which warrant the granting of such an order –
exceptional circumstances
shown.
ORDER
On
appeal from: Free State High Court, Bloemfontein (Kruger et Molemela
JJ) sitting as court of appeal:
In
the result the following order is made:
The
appeal is upheld. The order of the high court is set aside and the
following substituted in its place:
1 The conviction and
sentence of the appellant are set aside;
2 The matter is
remitted to the trial court (Regional Magistrate Phillip Johannes
Visser) on the following basis:
(i) the letter of
the complainant dated 15 May 2011 is admitted into evidence;
(ii) the State’s
case is re-opened for the hearing of further evidence;
(iii) the defence is
permitted to re-open its case, should it so decide;
(iv)
should the need arise to call other witnesses in relation to any
relevant issues, the trial court is not precluded from calling
and
hearing such evidence.
JUDGMENT
MBHA
JA
(CACHALIA JA AND GORVEN AJA
CONCURRING)
[1]
The appellant was convicted for the rape of a young girl in the
regional magistrate’s court, Bethlehem, on 30 August 2010
and
sentenced to 15 years’ imprisonment.
[1]
On
the same day the regional court granted the appellant leave to appeal
to the Free State High Court, Bloemfontein against his
conviction
only. Before the appeal was heard, the appellant lodged an
application in terms of s 22 of the Supreme Court Act 59
of 1959 for
the matter to be remitted to the regional court for the hearing of
further evidence of a letter in which the complainant
recanted her
testimony.
[2]
On 5 September 2011 the high court (per Kruger et Molemela JJ),
dismissed both the appeal and the application to allow further
evidence. This appeal, with leave of the high court, is against the
whole of the judgment dismissing both the appeal against conviction
and the remittal application. I shall for the sake of convenience
refer to the remittal application simply as ‘the application’.
[3]
In order to properly deal with the application, it is necessary to
refer to certain parts of the evidence that was led at the
trial, as
well as the appellant’s argument on the merits of the appeal.
[4]
The evidence upon which the appellant was convicted consisted, in the
main, of the testimony of the complainant, her sister
Nthabiseng to
whom the initial report of the alleged rape was made, the
complainant’s father and stepmother, and the J88
medico-legal
report prepared and completed by Dr Leboko who examined the
complainant. Dr Leboko passed away before the commencement
of the
trial.
[5]
This evidence can be summarised as follows: during 2007, the
complainant who was born on 14 February 1994, was a grade 7 pupil
at
a public school in Lindley. The appellant was one of her teachers at
that school and was also a close friend of her parents.
On Friday 23
November 2007 she attended a farewell function for all grade 7 pupils
at Kroonpark in Kroonstad. The appellant and
other teachers also
attended the function. At the end of the festivities, the complainant
together with other pupils and teachers
all travelled back to school
in buses that had been hired for the day.
[6]
After the complainant had disembarked from the bus and whilst walking
home, the appellant offered to give her a lift to her
home in his
car. After she entered the car, the appellant told her that he must
first fill up petrol in town. Instead he drove
to a local stadium
where, after he undressed her and himself, had sexual intercourse
with her inside his car without her consent.
During the ordeal she
never screamed as she believed that no one would hear her. As a
result of the incident, she sustained injuries
to her private parts
and there was blood and a brown substance on her clothes. The
appellant warned her not to tell anyone about
what had happened. He
then drove her home. Whilst they were driving, the complainant’s
father called her twice on her cellular
phone to enquire as to her
whereabouts. She replied that she was with the appellant who was
driving her home.
[7]
Upon arriving at her home, they both alighted from the car and the
appellant entered her home to greet and speak with her parents.
The
complainant gave her stepmother some of the things she had brought
from the school function and then went to sleep. She never
told
anyone about the rape for fear that her stepmother, with whom she had
a poor relationship, would disbelieve and possibly assault
her.
[8]
The following day she visited her grandmother, who was staying with
her elder sister Nthabiseng at another section in the same
township.
She confided to Nthabiseng that the appellant had raped her.
Nthabiseng repeated what she had been told not to disclose
to their
stepmother. When the complainant returned home on 19 December 2007
she was confronted by her stepmother who assaulted
her for not
disclosing what had happened.
[9]
The complainant’s stepmother testified that she physically
examined the complainant’s private parts and observed
a
‘healing’ bruise inside her vagina.
[10]
A charge of rape was laid with the police on 31 December 2007, some
five weeks after the incident. Later the same day the complainant
was
taken to a public hospital in Reitz where she was medically examined
by Dr Leboko who recorded his findings in the J88 medico
legal report
that the hymen was absent; there were bruises on the left side of the
vaginal opening; the complainant informed him
that she had not had
sexual intercourse previously, and that she was sexually assaulted
‘by a teacher she knows on 23/11/2007’.
[11]
On 2 January 2008 the parents of the complainant and relatives of the
appellant concluded a written agreement to the effect
that the rape
charge against the appellant would not be proceeded with and in
return the appellant’s family would pay an
amount of R8000 to
the complainant’s parents. It is common cause that the charge
of rape was never withdrawn and the R8000
never paid.
[12]
In argument before us the appellant relied on various grounds to
attack his conviction. I do not deem it necessary to traverse
all the
grounds save in so far as they may be relevant to the application.
Before doing so, it is necessary to consider the manner
in which the
appellant came into possession of the complainant’s letter in
which she recants her earlier testimony and upon
which the
application to re-open the case rests.
[13]
In his affidavit filed in support of the application, the appellant
avers that during May 2011, Captain Mofokeng (Mofokeng)
of the SAPS
in Lindley telephoned him. He informed the appellant that the
complainant who was with him, had an envelope containing
a letter
which she wanted him to give to the appellant. The appellant enquired
what the contents of the letter were. Mofokeng read
the letter and
advised the appellant that as it contained serious allegations, he
was going to refer this to the investigating
officer. However,
Mofokeng phoned back later saying he was not prepared to be involved
any further.
[14]
The appellant was, however, reluctant to have any contact with the
complainant. He asked Mofokeng to advise her to leave the
letter at a
telephone booth next to the post office. The appellant says that he
later drove to that booth where he saw the complainant
as she left
the letter. After she had left, he retrieved it and began reading it.
It was in the complainant’s handwriting
which he recognised. He
then approached Mofokeng who advised him to summon Mr Rooikop
Khambule (Khambule), the court interpreter.
He also informed him that
a case of perjury was being considered against the complainant. The
appellant then referred the letter
to his attorney.
[15]
None of those facts is disputed by the State. This leaves the
appellant’s version about how he came into possession of
the
complainant’s letter uncontroverted. Furthermore, there is
nothing to suggest that the appellant’s version in this
respect
is fabricated.
[16]
Regarding the contents of the complainant’s letter, it is dated
15 May 2011 and is addressed to the appellant personally.
In it she
says the following: the appellant did not rape her; her stepmother
conspired with Khambule and forced her to lay a false
charge of rape
with a view to extracting money from the appellant; after the
appellant had paid the money, Khambule would destroy
the papers or
make them disappear, and both Khambule and her stepmother told her to
have sexual intercourse with her boyfriend
so that when she was
medically examined, it would be seen that she had been sexually
penetrated. She also says that she was told
to put on an act and cry
whilst testifying in court to give credence to her false testimony
against the appellant. The letter goes
on to offer an unconditional
apology to the appellant and his family for having destroyed his life
by laying the false charge against
him.
[17]
Section 22 of the Supreme Court Act 59 of 1959 provides that:
‘
The
appellate division or a provincial division, or a local division
having appeal jurisdiction, shall have power –
(a)
on the hearing of an appeal to receive further evidence, either
orally or by deposition before a person appointed by such division,
or to remit the case to the court of first instance, or the court
whose judgment is the subject of the appeal, for further hearing,
with such instructions as regards the taking of further evidence or
otherwise as to the division concerned seems necessary.’
[2]
[18]
The principles governing applications for remittal of matters for the
hearing of further evidence are trite. This court has
affirmed on
various occasions that applications of this kind must be considered
against the backdrop of the fundamental and well
established
principle that in the interests of finality, once issues of fact have
been judicially investigated and pronounced upon,
the power to remit
a matter to a trial court to hear new or further evidence, should be
exercised sparingly and only when there
are special or exceptional
circumstances.
[3]
The
reason for this is the possibility of fabrication of testimony after
conviction and the possibility that witnesses may be induced
to
retract or recant evidence already given by them. These are factors
which must weigh heavily against the granting of the order
of
remittal. The mere recanting of evidence given earlier under oath
‘will not ordinarily warrant the granting of an order
reopening
a concluded trial’.
[4]
[19]
In
R
v Van Heerden & another
[5]
Centlivres
CJ stated:
‘
It
is not in the interests of the proper administration of justice that
further evidence should be allowed on appeal or that there
should be
a re-trial for the purpose of hearing that further evidence, when the
only further evidence is that contained in affidavits
made after
trial and conviction by persons who have recanted the evidence they
gave at the trial. To allow such further evidence
would encourage
unscrupulous persons to exert by means of threats, bribery or
otherwise undue pressure on witnesses to recant their
evidence. In a
matter such as this the court must be extremely careful not to do
anything which may lead to serious abuses in the
administration of
justice’.
Centlivres
CJ also quoted with approval the judgment of Denning LJ in Ladd v
Marshall
[1954] 3 All ER 745
at 748 to the effect that:
‘
.
. . A confessed liar cannot usually be accepted as credible. To
justify the reception of the fresh evidence, some good reason
must be
shown why a lie was told in the first instance, and good ground given
for thinking the witness will tell the truth on the
second
occasion.
’
[6]
There
must, accordingly, be prima facie credible evidence which shows or
suggests that the evidence originally given was false.
[20]
The basic requirements which the applicant must satisfy to convince a
court to accede to a request for a remittal, can be summarised
as
follows:
(a) There should be
some reasonably sufficient explanation, based on allegations which
may be true, why the evidence sought to be
led was not led at the
trial.
(b) There should be
a prima facie likelihood of the truth of the evidence.
(c)
The evidence should be materially relevant to the outcome of the
trial.
[7]
Although
non-fulfilment of any of these requirements would ordinarily be fatal
to the application, every case must be decided upon
its own merits
and the court in the exercise of the overall discretion vested in it,
and obviously only in very special circumstances,
may nevertheless
grant the application. Thus in
S v
Nkala
where the accused’s explanation was found not to be reasonably
sufficient, the court nonetheless accepted, not without some
hesitation though, that in the special circumstances of that case
remitting the matter was proper.
[8]
[21]
I am of the view that the appellant, on whom the onus rests, has
satisfied all these requirements. Regarding (a) and (c), the
appellant was convicted by the regional magistrate on 30 August 2010.
His notice of appeal was filed on 9 September 2010 and he
received
the complainant’s aforesaid letter containing the new evidence
around May 2011 whilst he was awaiting the hearing
of his appeal. It
follows that the appellant could not have had any knowledge about the
complainant’s letter and its contents
prior to or during his
trial in the regional court. Furthermore, assuming it is ultimately
shown that the contents of the complainant’s
letter are true,
this would clearly be materially relevant to the outcome of the
trial.
[22]
With regard to the likelihood of the truth of the contents, the
specific averments made by the complainant in her letter must
be
considered against the backdrop of the relevant evidence that was led
at the trial. The complainant avers in her letter that
she was
reluctant to lay a false charge against the appellant but that she
was forced to do so by her stepmother and Khambule.
She says she even
attempted, albeit unsuccessfully, to seek her father’s
assistance. From the evidence led at the trial it
is clear that the
complainant had an unhappy relationship with her stepmother.
Significantly, the stepmother corroborated the complainant
that she
was reluctant to lay a charge of rape against the appellant.
Furthermore, she testified that a few days before the charge
was
ultimately laid against the appellant on 31 December 2007, the
complainant attempted to commit suicide by drinking a disinfectant.
These incidents, although significant, were unfortunately never
probed further by the defence during the trial, and assume even
more
importance in the light of the contents of the letter.
[23]
The complainant’s mention in her letter of the involvement of
Khambule, is also significant and particularly disturbing.
It will be
recalled that Khambule also testified at the trial. From his evidence
it is clear that it is he who initiated the discussion
with the
appellant about settling the matter in a so called ‘cultural
way’. He even suggested that the appellant should
consider
paying the sum of R10 000 to the complainant’s family.
[24]
Khambule is a court interpreter with considerable experience. He may
well have known that what he was doing might be tantamount
to
obstructing the course of justice. The fact that he appears to have
actively participated in attempting to prevent a criminal
prosecution
also lends credence to the contents of the complainant’s
averments in her letter that she was forced by her stepmother
and
Khambule to implicate the appellant falsely. I am of the view that
Khambule must be recalled at the trial so that all these
aspects can
be properly investigated and ventilated.
[25]
In light of the debate before us, counsel for the State was
constrained to concede that the matter ought to be remitted to
the
trial court.
[26]
The complainant’s letter is written in simple English and
contains numerous grammatical mistakes. In the letter the complainant
extols the appellant as a good teacher who always gave his students
good advice. She accepts that the appellant may in fact hate
her for
the rest of her life for having lied about him. From the simplicity
of the letter and the manner in which it was written,
it seems that
the complainant never intended the letter to be used in any court
process. She was simply trying to clear her guilty
conscience. In the
circumstances I am satisfied that there is a reasonable possibility
of the contents of this letter being true.
[27]
In summary, having regard to the contents of the complainant’s
letter, the manner in which it was written, how it came
into the
possession of the appellant and the prima facie likelihood of the
truth of its contents, I am of the view that there are
exceptional
circumstances which justify the re-opening of the case and the
leading of this evidence.
[28]
In the result the following order is made:
The
appeal is upheld. The order of the high court is set aside and the
following substituted in its place:
1 The conviction and
sentence of the appellant are set aside;
2 The matter is
remitted to the trial court (Regional Magistrate Phillip Johannes
Visser) on the following basis:
(i) the letter of
the complainant dated 15 May 2011 is admitted into evidence;
(ii) the State’s
case is re-opened for the hearing of further evidence;
(iii) the defence is
permitted to re-open its case, should it so decide;
(iv) should the need
arise to call other witnesses in relation to any relevant issues, the
trial court is not precluded from calling
and hearing such evidence.
_____________________
B
H MBHA
JUDGE
OF APPEAL
APPEARANCES:
For
Appellant: GJM Wright
Instructed
by:
Azar
& Havenga Inc., Bloemfontein
For
Respondent: SMW Mthethwa
Instructed
by:
Director
of Public Prosecutions, Bloemfontein
[1]
The charge sheet reads:
‘
.
. . the accused is guilty of the crime of rape (read with the
provisions of
section 51(2)
of the
Criminal Law Amendment Act 105 of
1997
). In That upon or about 25/11/2007 and at or near Lindley . .
., the accused did unlawfully and intentionally have sexual
intercourse
with a female person, to wit Esta Pontsho Thwala a 13
year old girl, without her consent.’
[2]
This
section has been replaced by
s 19(
c
)
of the
Superior Courts Act 10 of 2013
.
[3]
S
v H
1998 (1) SACR 260
(SCA) at 262h;
S
v Ndweni
1999 (2) SACR 225
(SCA) at 227a-g;
S
v Wilmot
2002 (2) SACR 145
(SCA) para 31.
[4]
Ogilvie
Thompson JA in
S
v Zondi
1968 (2) SA 653
(A) at 655 F-G.
[5]
R
v Van Heerden
1956
(1) SA 366
(A) at 372H-373A.
[6]
At
372 D-F
[7]
S
v Nkala
1964
(1) SA 493
(A) at 496A-B; S v De Jager
1965 (2) SA 612
(A) at
613C-D.
[8]
S
v Nkala
(supra)
at 497H;
S
v Wilmot
(supra) para 31