Venter v S (779/2018) [2021] ZASCA 21 (18 March 2021)

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[2021] ZASCA 21
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Venter v S (779/2018) [2021] ZASCA 21 (18 March 2021)

THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
No: 779/2018
In
the matter between:
JOHANNES
JACOBUS VENTER

APPELLANT
and
THE
STATE

RESPONDENT
Neutral
citation:
Venter
v The State
(779/2018)
[2021] ZASCA 21
(18 March 2021)
Coram:
CACHALIA,
MOCUMIE and MOLEMELA JJA and MABINDLA-BOQWANA and POYO-DLWATI AJJA
Heard:
18
August 2020
Delivered:
This
judgment was handed down electronically by circulation to the
parties’ legal representatives by email, publication on
the
Supreme Court of Appeal website and release to SAFLII. The date and
time for hand-down is deemed to be have been at 12h00 on
18 March
2021.
Summary
:
Evidence
– whether contradictions in the evidence of the complainant as
a single witness and that of other witnesses in sexual
offences were
material – whether the evidence was properly assessed and
whether despite contradictions the appellant was
appropriately
convicted.
ORDER
On
appeal from:
Gauteng
Division of the High Court, Pretoria (Potterill and Maumela JJ and
Van Niekerk AJ sitting as a court of appeal):
The
appeal is dismissed.
JUDGMENT
Mabindla-Boqwana
AJA (Mocumie and Molemela JJA and Poyo-Dlwati AJA concurring):
Introduction
[1]
Rape
is one of the most invasive and horrendous criminal acts. Added to
that is the trauma that goes with a victim having to recount
the
ordeal in evidence. Refuting a view that it is easy to bring a charge
of rape, in
S
v Jackson,
Olivier JA
[1]
observed:
‘Few things may be more difficult and
humiliating for a woman than to cry rape: she is often, within
certain communities,
considered to have lost her credibility; she may
be seen as unchaste and unworthy of respect; her community may turn
its back on
her; she has to undergo the most harrowing
cross-examination in court, where the intimate details of the crime
are traversed
ad nauseam
; she (but not the accused) may
be required to reveal her previous sexual history; she may disqualify
herself in the marriage market,
and many husbands turn their backs on
a “soiled” wife.’
[2]
Olivier
JA criticised the cautionary rule in relation to the evidence of
complainants who are single witnesses in sexual offences
as being
premised on an outdated notion that unjustly stereotypes complainants
(overwhelmingly women) as particularly unreliable.
He, however,
endorsed the view that evidence may call for a cautionary approach
where, inter alia, a witness has been shown to
have been unreliable,
is shown to have lied, had previously made false complaints or bears
some grudge against the accused. In
those cases, some supporting
material may be required.
[2]
[3]
More
often than not, in sexual offences the State places reliance on the
evidence of a single witness. Although there is no general

requirement for corroboration, in the criminal context our courts
have taken the approach that the evidence of a single witness
should
only be relied upon where it is clear and satisfactory in all
material respects.
[3]
This
position is supported by s 208 of the Criminal Procedure Act 51
of 1977 (the CPA), which provides that the conviction
of an accused
may follow from the single evidence of any competent witness. Even
so, the overarching consideration in a criminal
matter is whether the
State has proven its case against the accused beyond a reasonable
doubt.
[4]
[4]
‘
It
is permissible to look at the probabilities of the case to determine
whether the accused’s version is reasonably possibly
true, but
whether one subjectively believes him is not the test. As pointed out
in many judgments of this Court and other courts
the test is whether
there is a reasonable possibility that the accused’s evidence
may be true
’
.
[5]
The
approach to the evaluation of evidence in a criminal trial was
articulated by this Court in
S
v Chabalala
[6]
as
follows:
‘
The correct approach
is to weigh up all the elements which point towards the guilt of the
accused against all those which are indicative
of his innocence,
taking proper account of inherent strengths and weaknesses,
probabilities and improbabilities on both sides and,
having done so,
to decide whether the balance weighs so heavily in favour of the
State as to exclude any reasonable doubt about
the accused’s
guilt. The result may prove that one scrap of evidence or one defect
in the case for either party (such as
the failure to call a material
witness concerning an identity parade) was decisive but that can only
be an
ex post facto
determination
and a trial court (and counsel) should avoid the temptation to latch
on to one (apparently) obvious aspect without
assessing it in the
context of the full picture presented in evidence.’
[5]
As
was stated by Malan JA in
R
v Mlambo
[7]
‘
there
is no obligation upon the [State] to close every avenue of escape
which may be said to be open to an accused. It is sufficient
for the
[State] to produce evidence by means of which such a high degree of
probability is raised that the ordinary reasonable
man, after mature
consideration, comes to the conclusion that there exists no
reasonable doubt that an accused has committed the
crime charged. He
must, in other words, be morally certain of the guilt of the
accused’.
[6]
In
this case the appellant, Mr Johannes Jacobus Venter, was convicted in
the regional court, Pretoria on four counts of rape and
seven counts
of indecent assault committed during the period of August 1998 and
June 2002. He was sentenced to an effective term
of 10 years’
imprisonment. He appealed against his conviction to the Gauteng
Division of the High Court, Pretoria (high court)
which appeal was
unsuccessful (Potterill and Maumela JJ (concurring) and Van Niekerk
AJ (dissenting)). The appeal against his conviction
is before us with
special leave having been granted by this Court.
[7]
The
nub of the appellant’s case is that the trial court did not
properly assess the complainant’s evidence intrinsically
and as
against the evidence of the other witnesses. Had it done so, so it
was contended, it would have found material discrepancies
which
affected the credibility and reliability of her evidence. The
evidence was lengthy, involving a total of 12 counts and 17

witnesses. The attacks on the evidence are numerous, it is
accordingly important to outline the evidence in some detail before

proceeding to consider whether there is merit in the appellant’s
contentions.
The complainant’s evidence
[8]
The
complainant, a 42-year-old woman at the time, testified that during
the period of August 1998 and June 2002 she encountered
numerous
incidents of rape and indecent assault (which she referred to as
sexual harassment) at the hands of the appellant. At
the time she was
employed by Denel AMG (AMG), a business unit of Denel Personnel
Solutions (DPS), which she joined in May 1998
as a personal assistant
to the appellant who was the Chief Operating Officer. They supplied
the South African Air Force (Air
Force) with personnel and were
stationed at their headquarters in Pretoria Central.
[9]
In
respect of count 1 (indecent assault) she testified that after three
months of joining AMG, ie in August 1998, during working
hours, the
appellant asked her to bring documents into his office. Once she had
entered his office, he closed the door behind her
and grabbed and
touched her around her waist. He then unbuttoned her trousers,
inserted his hand inside her underwear and fondled
her vagina, whilst
standing behind her. She managed to pull herself away and asked him
not to do it again. She then opened the
door and stepped out of the
office and went back to her desk. She did not report this incident to
anyone for a number of reasons:
(a) she was afraid that nobody would
believe her and she could lose her job; (b) no one would listen to
her or assist her because
she was new and she was working in a
close-knit ‘white Afrikaner’ dominant environment where
the appellant was well-known
and respected; and (c) she would have
been treated as an outcast in her Hindu community as according to
their culture and religion
and her husband would remove her three
children from her or put her out of the house.
[10]
The
second incident (ie count 2, indecent assault) occurred between
August and September 1998. In this instance the appellant called
her
again to his office but this time he told her that he wanted to give
her a hug for all the good work she had done. She went
into his
office, but before
she
could say anything, the appellant grabbed her from behind and
inserted his hand into her blouse and touched her breasts, inside
her
bra. She told him to stop a nu
mber
of times but he instead simulated sexual movements on her buttocks
asking: ‘Why should we stop? What is the problem,
is it not
nice?’ She again managed to pull away and return to her office.
She wanted to report the incident but did not know
to whom to turn as
she was terrified.
[11]
The
incident relating to count 3 (rape) occurred between January and
March 1999 when the appellant summoned her into his office
one
morning and ins
tructed
her to go with him to a suite situated at the Loftus Versfeld Stadium
(Loftus) which belonged to DPS. He told her that he
wanted her to see
how the renovations were going there. She did not think it was
necessary for her to go but it was an instruction,
so she obliged.
They drove to Loftus in the appellant’s vehicle. The appellant
drove straight to the premises and she noticed
that there was no one
there. When she enquired, the appellant told her that there should be
people working in the suite. They took
an elevator to the suite and
upon their arrival there, the appellant unlocked the door with a key
he had. She noticed that the
suite was empty. When she asked the
appellant why nobody was there, he told her that the ‘television
guy’ was supposed
to be around and they should go inside and
take a look. In the suite, she noticed two glasses and a bottle of
wine on the counter
from which he offered her a glass. She declined
as she was a teetotaller on account of the medication she took for
epilepsy. The
appellant poured himself a glass of wine and drank it.
He thereafter pushed her onto a wooden bench
that
had cushions on. She asked what he was doing and, without saying
anything, he removed her underwear and forcefully inserted his
penis
into her vagina, which was very painful. She tried to push him away
and to get up from underneath him but she did not succeed.
He was a
lot bigger in stature than her as she only weighed 45 kilograms. She
never gave him consent to have sexual intercourse
with her. When he
had finished raping her, he drank another glass of wine and warned
her not to tell anyone about the incident
or else he would kill her
with a shotgun. She believed him because he was an avid hunter of
game. They left the suite; he locked
the door and they went back to
the office.
[12]
At
the office she telephoned the appellant’s supervisor, Mr
Wilhelm Langner who was based in Kempton Park and told him that
she
needed to talk to him because the appellant was ‘sexually
harassing’ her. Mr Langner said he could not talk at
that time
and promised to call back but he never did. She did not tell Mr
Langner that the appellant had raped her, she just used
the words
‘sexual harassment’. She could not tell him about the
rape because she was scared of losing her job. She
contacted him with
the hope that he would talk to the appellant to get him to stop his
actions.
[13]
That
afternoon she spent most of the time in the ladies’ bathroom as
she was nauseous and vomiting. She could not urinate
properly. Her
urine would burn because her vagina was torn on the outer walls and
she also felt cramps in her lower abdomen. She
also could not walk up
straight. As soon as she got home, she noticed that her vagina was
swollen and there were little blood spots
on her panty that emanated
from the little cuts she sustained on her vagina. She decided to look
at the injuries because she could
not go to the gynaecologist as she
would have to explain that she had been raped. She was scared that
the gynaecologist would tell
her husband who was a very strict person
and stood by their cultural beliefs. The next day she phoned the
chemist and just told
them that she had an infection and described
her symptoms and they prescribed a cream for her to use. She was
terrified to let
anyone know.
[14]
In
June
1999 (although she later said it was in December 1998)
she
went to see a psychologist by the name of Ms Trudie van der
Westhuizen in Johannesburg. She did not want to consult with one
in
Pretoria as her children had been to some psychologists there
regarding problems at home. Her visits to Ms van der Westhuizen

were initially about her marital problems. Ms van der Westhuizen
requested her to attend further sessions and she thus became her

regular client.           In
December
1999
she
broke down emotionally and finally mustered the courage to tell Ms
van der Westhuizen about the sexual assault and rape at work.
She
could not take it anymore as she had become very depressed and had
started taking anti-depressants for the first time in her
life.
[15]
To
get some respite, she asked the recruitment agency that found her the
job at AMG to find her employment opportunities elsewhere.
A few days
later a phone call from the recruitment agency was picked up by the
appellant who told the agent not to call their offices
again. This
was followed by the appellant telling her that he would give her a
bad reference and she would not get employment anywhere
else.
[16]
The
sexual assault continued from March 1999 to December 1999 (count 4,
indecent assault), where the appellant would use the same
tactics of
calling her into his office for documents then touching or stroking
her breasts or vagina. As regards count 5 (indecent
assault), in
January 2000, after returning from leave and having realised that her
divorce was finalised, the appellant continued
sexually harassing her
in the same manner as before, but this time more often. He would
fondle her breasts or touch her private
parts in his office.
[17]
On
one of the days in January 2000 (count 6, rape), the appellant asked
her to work overtime as he needed to complete a presentation.
All
other employees had already knocked off. She went to his office and
sat on a chair. The appellant got up and locked the door.
When she
asked what he was doing, he simply smiled and grabbed her hand. He
pulled her up from the chair and started fondling her
private parts,
saying that he needed her to reach orgasm. His hand was inside her
pants and on her underwear. At that time, she
was wearing long pants
with a pantyhose underneath. She protested all she could for him to
stop and she tried to wiggle away from
him. She also told him that
she would scream but he reminded her that everyone had left and
nobody was there. He pushed her to
the side of the table and pulled
off her pantyhose and underwear. She heard him loosen his belt and
felt him placing his penis
inside her vagina from behind. She
continued to plead for him to stop but he ejaculated inside her and
when he had finished, he
wiped his penis with his handkerchief. She
never consented to have sexual intercourse with him. He also told her
that since she
was not married anymore, she did not need to look
elsewhere for sex as he was available. He then left her in the
office. The next
day she did not want to go to work. She hated going
there but felt trapped as she needed the money and work to support
herself
and her three children. She always remembered the threats
that the appellant made to her, the most serious being that he would
come after her and kill her.
[18]
She
then approached Mr Gerhardus van Staden, a colleague whose office was
directly opposite the appellant’s office, and requested
him to
stay at work when he saw that she needed to work overtime. Mr van
Staden was a good friend of hers, whom she trusted. She
did this to
ensure that there would be somebody around if she screamed or if any
noises came from the appellant’s office.
She did not tell
Mr van Staden about the rape or the real reason she asked
him to stay behind. She was emotional and
embarrassed and only told
him that the
appellant
touched her legs. Mr van Staden did not ask her questions, he just
left it at that. Mr van Staden however never had to
stay behind
because she did not work overtime after the rape incident.
[19]
At
some stage after the January 2000 rape, she went to the
Brooklyn Police Station to report the sexual abuse
incidents,
having been urged to do so by Ms van der Westhuizen on
various occasions. There, she stood around for quite a while and was
totally
ignored by the police. She noted that the atmosphere was not
welcoming and it did not make her feel comfortable. There were also

no female police officers present, so she left.
[20]
At
some point she discovered that there was a course dealing with sexual
harassment arranged by AMG which everyone had attended.
She was the
only one who did not go. When she asked the appellant about it, he
told her that it was not necessary for her to go
and did not give any
reasons.
[21]
From
February
to June 2000,
the
appellant went on hunting trips. In regard to
count
7 (indecent assault),
she
testified that in or around
July
to August 2000,
upon
his return, the sexual assault continued in the same way as before.
He would use the same tactics where he would call her to
his office
and grab her from behind and either fondle her breasts or private
parts. He would sometimes put his fingers in her vagina.
In
September 2000, the complainant was admitted to Louis Pasteur
Hospital for two weeks for depression and migraines caused by stress.

She was booked off sick for a week and returned to work after that.
Her weight had dropped to 39 kilograms. The appellant noticed
that
she was underweight, and the sexual assault stopped for a while.
[22]
At
the end of September to December 2000, in respect of count 8
(indecent assault), he again continued sexually assaulting
her
by pulling her and groping her breasts on top of her clothing, saying
he wanted to feel if she was gaining weight so that she
could be
ready for him. She thought that if she remained underweight this may
stop the sexual assault and rape and so she started
eating less.
Before they went on leave in December 2000, the appellant called her
into his office and told her that since she was
still underweight, he
would wait until the following year.
[23]
In
respect of counts 9 (indecent assault), 10 (rape), 11 (rape) and 12
(rape) she testified that when they returned
from
leave in
January
2001, the
same
form of sexual assault continued
until
June 2002, where he would call her to
his
office to bring documents and grab her from behind, touching her
breasts and vagina.
The
fact that she was still underweight did not deter him. On two
occasions during the period of January 2001 to June 2002, he
attempted to force her to have oral sex with him by pressing her head
down to his erect penis. She managed to close her mouth and
clench
her teeth, so that he could not insert his penis into her mouth. When
she refused, he pushed her to the side of his table
and, without a
condom, penetrated her vagina with his penis from behind. There was
another occasion, in between the times he attempted
to force her to
have oral sex with him where he locked the door, fondled her private
parts and forced her to the side of the table
and placed his penis
into her vagina from behind. All these were without her consent
.
The last incident was in June 2002.
[24]
In
August 2002, their office relocated to the Waterkloof Airforce Base
(Waterkloof). There she continued to work for the appellant
until he
was suspended in 2004. Nothing happened between June 2002 and 2004.
She was on gynaecological medication for recurring
(monthly) vaginal
infections since 2000. According to the gynaecologist, this was due
to forced insertions into her vagina which
caused quite severe
tearing.
[25]
The
rape and indecent assault incidents were reported to the police on
20 August 2004. This was after the complainant
had decided
to report it to their new Chief Executive Officer, Ms Zodwa Dlamini.
She had been told that Ms Dlamini was an open
and fair person. She
felt she could relate to her because Ms Dlamini was also a black
woman to whom the complainant felt more comfortable
to report the
matter. Ms Dlamini arranged for Mr
Julian
Keyser,
the
head of security at Denel to take a statement from her, leading to
the matter being reported to the police.
The appellant’s evidence
[26]
For
his part, the appellant denied that he raped and indecently assaulted
the complainant. He stated that they never worked overtime
and
further denied that he went with the complainant to the suite in
Loftus during the period of January to March 1999. He testified
that
he went there with her at 10h00 around the second week of May 1998
for her induction. This was done to introduce her to the
environment
so that if he or one of his five managers could not attend the suite
for purposes of entertaining clients, the complainant
would be
expected to stand in. They went to Loftus in separate vehicles,
because the complainant had informed him that her husband
was a very
jealous man who followed her around and that she was terrified of
him. Generally, there were guards at the gate, and
there were people
who were cleaning and exercising at the stadium. Underneath the suite
were doctors’ consulting rooms. He
denied that there was a
bottle of wine and glasses on the counter of the suite as well as a
wooden bench. He testified that what
was there was an L-shaped corner
bench built in stone. When they got to the suite, he showed the
complainant where to stand to
receive guests and explained the
purpose of the rugby spectator box to her. He then took the
complainant to Waterkloof to introduce
her to the staff there,
including Mr Marius van Coller. From Waterkloof they went back to
their offices where they continued with
their normal daily
activities.
[27]
He
testified that he had problems with the complainant. She complained
about her salary not being market-related. At some stage
she applied
for a loan which he did not approve because she did not qualify. He
had talked to her about her lack of time keeping
as she came to work
late. He banned Mr van Staden from coming to her office, he barred
her from selling items during office hours
and admonished her for
making private calls. The complainant was embarrassed and indignant
about all this.
[28]
He
denied refusing the complainant an opportunity to go to a course
dealing with ‘sexual harassment’ and stated that
it was
in the interest of all DPS employees to attend the course. He further
denied threatening to shoot her if she complained
about what happened
to her. At some stage, she complained to him about her husband
assaulting her and showed him bruises sustained
from an incident
where her husband tried to run her over with a vehicle. Following
this, he arranged for a social worker, Ms Trudie
Lourens, to assist
the complainant. He was never called by Mr Langner regarding him
having been accused of sexually harassing the
complainant; and it
would not have been possible for him to rape or sexually harass her
as there were security guards at their
offices. He had a good working
relationship with Mr Langner and respected him as his superior. The
hunting trips they undertook
together were business related. He had
seen the complainant using alcohol at social events more than once.
To avoid repetition,
I shall deal with the other witnesses’
testimony as well as crucial aspects of their cross-examination in my
analysis of
the evidence, as it becomes necessary.
The evaluation of the evidence
[29]
It
is trite that in the absence of an irregularity or misdirection, a
court of appeal is bound by the credibility findings of the
trial
court, unless it is convinced that such findings are clearly
incorrect.
[8]
The
main attack on the credibility and reliability of the complainant’s
evidence is primarily on the differences between her
evidence-in-
chief and cross-examination in relation to the period in which the
last incident occurred and whether the last incident
was a rape or an
act of indecent assault. It was contended that this discrepancy had a
material bearing on the complainant’s
overall credibility in
relation to all the charges.
The discrepancy as to the last incident
[30]
In
this regard, the contention is that the complainant changed her
version in cross-examination by alleging that the last time she
was
sexually assaulted was in June 2001 as opposed to June 2002 to which
she testified in-chief. She also changed her version by
stating that
she was not raped in June 2002 but that the appellant only fondled
her breasts and touched her private parts. She
later testified that
she could not remember what happened in June 2002.
[31]
When
confronted about these discrepancies the complainant stated that the
incidents occurred a long time ago and they were traumatic
for her.
Thus, she tended to get confused with the dates. She, however,
maintained that the last incident was in June 2002 and
that she had
made a mistake with the dates. She also got confused about the
sequence of the events. She further stated that (during
her
evidence-in- chief) she was able to tell the court what happened in
2002 because she took the events ‘from the beginning
and it was
much easier to go from the start right up to the end’. This
explanation is sensible in my view. It is well known
that a witness
in a criminal trial follows the questioning of either the prosecutor
or the cross-examiner (defence counsel). The
confusion may have also
been compounded by the cross examiner (defence counsel) jumping from
one piece of evidence to another.
It appears from the record that the
June 2001 date was introduced by the defence counsel in the following
manner:
‘
Fine,
what did you testify in the disciplinary hearing as to when you were
sexually
harassed
by the accused last – June 2001.’(Emphasis added.)
[32]
After
the mix-up about the dates and the last incident she states the
following towards the end of her cross-examination on this
issue:
‘
Good.
Now, why did you say you were sure of the date, you can remember it
well, and then you tell us now it was June 2002. [Translated]
--
Because
I thought he was referring to an incident in 2001
.’
(Emphasis added.)
[33]
Counsel
for the appellant submitted that it was odd that the complainant
would not remember the last incident as it would have been
the most
recent in her mind before she testified. Other than the fact that she
testified about four years after the last incident
occurred, if one
has regard to the frequency of the incidents, the trauma she
experienced and her general ability to recall events,
it does not
strike as strange that she would not recall which event occurred last
between the rape and the more frequent indecent
assaults. The
complainant could not even recall the date (year) she got divorced
(which is an event whose date should ordinarily
stand out in one’s
mind). The contradictions in my view, given their context and the
explanation tendered, do not suggest
that the complainant was an
untruthful or unreliable witness. While she mixed up the dates, she
was certain of the fact that the
incidents had happened and gave
detailed accounts of those in relation to the period of January 2001
and June 2002.
[34]
As
explained by J Hopper and D Lisack:
[9]
‘
It
is not reasonable to expect a trauma survivor – whether a rape
victim, a police officer or a soldier – to recall
traumatic
events the way they would recall their wedding day. They will
remember some aspects of the experience in exquisitely
painful
detail. Indeed, they may spend decades trying to forget them. They
will remember other aspects not at all, or only in jumbled
and
confused fragments. Such is the nature of terrifying experiences, and
it is a nature that we cannot ignore.’
[35]
I
note that the appellant was originally charged with five counts of
rape, but was acquitted on count 12, which was the last count
of
rape. The trial court did not give reasons for this finding other
than asserting that the State had not proven this charge beyond

reasonable doubt. It can only be assumed that this was based on the
fact that the complainant could not recall whether the last
incident
was a rape or indecent assault. This is regrettable given the
importance of giving reasons in criminal trials.
[36]
Before
this Court, a proposition was put to counsel for the State to the
effect that if the trial court saw it fit not to convict
the
appellant on charge 12, which related to the period of January 2001
to June 2002, then all the charges relating to that period
should
have fallen. I am unable to agree with this proposition. The least
that can be assumed is that the trial court acquitted
the appellant
on the last charge for lack of clarity as to what the last incident
was, as already indicated. The complainant’s
confusion or
discrepancy only related to the nature of the last incident and its
date. It did not affect the entire period of January
2001 to June
2002. The acquittal on count 12 does not, in and of itself, mean that
the evidence of the complainant was not credible.
The confusion
regarding the dates could have genuinely been caused by the traumatic
experience the complainant encountered and
was not necessarily an
indication of untruthfulness.
[37]
Unlike
counts 9 to 11, which were alleged to have taken place during the
period of January 2001 to June 2002 in the charge sheets,
the date in
count 12 was confined to June 2002. Although the complainant was
confused about what the last incident was, her evidence
was clear as
to what incidents occurred between the period of January 2001 and
June 2002. Consequently, the finding of not guilty
in respect of
count 12 did not render the complainant’s evidence untruthful
and unreliable in relation to the balance of
charges for that period.
It is important to bear in mind too that even falsity in one part of
a witness’ evidence is not
necessarily an indication of falsity
in other aspects thereof. It does n
ot
necessarily destroy the credibility of a witness
in
toto
.
[10]
The discrepancy relating to the insertion of a finger
[38]
A
further submission in relation to the period of January 2001 to June
2002 was that the complainant testified in-chief that during
that
period, the appellant inserted his fingers into her vagina but in
cross-examination she could not remember whether or not
the appellant
had done so. She again changed her version stating that he inserted
his fingers and later stated this was a possibility.
[39]
A
closer examination of the complainant’s evidence-in-chief on
this aspect reveals that the prosecutor asked about the insertion
of
the finger in respect of different occasions. The first question
related to whether on the occasions that the appellant attempted
to
force her to have oral sex with him, he ‘inserted’ his
fingers inside her vagina. The complainant’s answer
was ‘no’.
When asked whether he had put his fingers on her private parts on
other occasions of sexual assault, her
answer was ‘yes’.
In cross-examination when asked whether the appellant inserted his
finger into her vagina, she answered
‘yes it was part of
touching my vagina’. She was asked why she did not mention that
in the first instance (in cross-examination)
and her response was
that she mentioned it in her evidence-in-chief. She further stated:
‘Well touching my vagina and inserting
it is the same thing.
The fact is he did go to my vagina’. At another point, during
cross-examination she stated that when
his fingers were in her
vagina, she was so emotional and traumatised, she could not remember
what exactly he did. She also stated
that ‘when he had his
fingers in my vagina he used to play, put his fingers in I was so
traumatised or too emotional I just
wanted to get away . . .
when he was sexually harassing me, to me at this stage it was not
relevant whether he was inserting
it in my vagina or not’.
[40]
My
impression is that the complainant’s use of the words ‘played’,
‘put’ and ‘insert’
of his fingers in her
vagina referred to the same thing. It seems to me the word
‘insertion’ was not meant as a form
of penetration, but
was broadly used with reference to touching, putting or fondling.
Significantly, the appellant was not charged
for penetrating her
vagina with his finger, which would constitute rape. The issue of the
‘possibility’ of the insertion
of a finger related to the
question of whether fingers were inserted between January 2001 and
June 2002. Her answer was that she
was so traumatised that she could
not put a date, a time or a year to when he inserted his fingers. I
do not think that her lack
of clarity as to whether or not fingers
were inserted into her vagina during the period of January 2001 to
June 2002 points to
her lack of honesty. She was consistent that his
fingers were in her vagina, whether he ‘inserted’,
‘played with’,
‘put’ or ‘touched’
her vagina should not lead to the rejection of her evidence for that
period. Also, the
charge sheet in respect of count 9 was framed
broadly by the prosecution accommodating a number of complaints: that
during the
period of January 2001 to June 2002 indecent assault
occurred by stroking her vagina and/or touching and/or inserting his
fingers
into her vagina as well as forcing her on two occasions to
have oral sex with him by forcing her head down onto his penis. In my

view, the evidence has lived up to count 9 and I therefore do not see
why it cannot stand.
[41]
Contrary
to what my colleague states in the minority judgment, I hold the view
that the charge sheet justifiably separated the three
rapes that
occurred during the period of January 2001 to June 2002 from the
indecent assaults. Some of the indecent assaults listed
in count 9
clearly took place during the rapes alleged in counts 10 and 12 (ie
the rapes that involved the forced attempted oral
sex incidents).
Count 11 evidently is the count that is in-between the rapes where
the attempted oral sex incidents were involved.
Count 9 encompassed
various incidents of indecent assault which occurred in the period of
January 2001 to June 2002. I do not see
anything irregular in
separating the rape charges from the charges of indecent assault that
occurred during the same period. I
am of the view that the charges
are clear and they are supported by the complainant’s evidence
for that period.
[42]
Apart
from testifying that the ‘normal sexual harassment’,
involving the ‘same tactics’ continued for the
period
January 2001 to June 2002, the evidence led for that period was,
inter alia, the following:
‘
Now
you indicated that this was from January 2001 to June 2002 how many
times did he have unprotected sex with you --- Three times.
Did
anything happen in July 2002 or not?-- No, because he was busy
preparing an office at our offices at the Waterkloof Air base.
Right,
what I would like to establish is you referred to the sexual
harassment continued during this period of time, January 2001
to June
2002. The same that you just indicated and twice that he had forced
you to have oral sex. Now the three occasions of the
unprotected sex
that took place, can you remember if it is possible? Was it
in-between the oral sex or was it before that, after
that
(inaudible)? -- The two was when I refused oral sex.
You
refused?-- Yes, and then . . .
Is
that when he had unprotected sex.-- Yes, yes.
Yes?--
And the other one was in-between.
In-between
the two incidents of oral sex? –Yes.
Right.
Can you remember the first incident when he forced you to have oral
sex with him, can you remember that? -- The date no.
Not
the date, can you remember the incident, what happened? -- Yes.
Tell
the court about the incident, what you can remember about the
incident the first time with the oral sex? As usual he would
call me
into his office, he grabbed me from behind and first…
MECHANICAL INTERRUPTION
.
. . me from behind and he first started fondling my private parts.
By
fondling with your private parts, what did he do exactly with your
private parts? -- He would play with my vagina with his fingers.
Did
he at any stage insert his fingers in your private parts (inaudible)
occasions? --No.
Put
his fingers inside your vagina? -- No.
Right,
on other occasions where he did not force you to have oral sex with
him, did he any stage put his fingers in your private
parts there?--
During the sexual harassment yes.
And
that is still during January 2001 to June 2002? – That is
correct.
You
indicated that in-between the oral sex there was an incident where he
had unprotected sex with you again is that right? -- That
is correct.
Then
you referred to a further incident, the second oral sex incident
where he also had unprotected sex with you, is that right?
–
Yes.
Right,
then the last incident that took place, when did that take place?
What
month?-- It was just before we moved. June 2002.
June
2002. What happened then and where did it happen?-- That was the oral
sex incident.
That
was the last one, the last one. -- Yes.’
[43]
There
were clearly two incidents of forced attempted oral sex from what the
complainant relayed in her evidence. The three incidents
referred to
by the complainant were that of rape. Two of which involved incidents
of forced attempted oral sex.
[44]
For
the reasons mentioned above, I am of the view that the concession
made by counsel for the State that counts 9 to 11 should have
fallen
away along with count 12, was improperly made. It follows that the
aforesaid concession is of no consequence, as a court
is not bound by
counsel’s erroneous concession.                  T
his
concession was lamentably unsubstantiated, hasty, and unjustified by
counsel and offered very little assistance to the Court.
The Court is
left to make its own assessment of the evidence in relation to the
charges.
The complainant’s alleged testimony in
disciplinary proceedings
[45]
This
brings me to the submission that the complainant testified in the
disciplinary hearing held at Denel against the appellant
that the
last incident was in 2004 and gave the same instructions to her
attorneys in a civil claim. The appellant seems to have
relied
heavily on the findings of the minority judgment of the high court in
his arguments, not only on this aspect but in many
others. My view is
that the recounting of the evidence by the minority judge a quo was
incorrect in a number of respects. As to
the 2004 issue, the minority
judgment found that the complainant could not recall whether the last
date of the incident was 2002
or 2004. This is not correct. She did
not testify as such, as it will be shown below. From my reading of
the record, I could not
see any inconsistency in her evidence, on
this aspect, for which she was criticised. The appellant did not
attend the disciplinary
enquiry and the presider of the disciplinary
hearing was not called as a witness. How is the complainant expected
to account for
a date appearing in the ruling when the record of the
enquiry was not available to verify that she had allegedly lied in
her evidence
when she emphatically denied the 2004 date?
[46]
This
question was put to her in cross-examination along with the
suggestion that she instructed her attorney, Mr Ashook Kirpal that

the last incident was in 2004, as that was alleged in the particulars
of claim. The complainant categorically denied that she gave
that
testimony in the disciplinary hearing. The transcripts of that
hearing could not be found after an opportunity was given to
the
appellant’s counsel to locate them. Her version could therefore
not be controverted and there is no reason not to accept
it. She
further denied instructing her attorney that the last incident
occurred in 2004 and stated that she had never even seen
the summons.
[47]
Mr
Kirpal, who was the initiator of the complaint on behalf of Denel in
the disciplinary hearing, was called as a witness. He testified
that
the charge sheet mistakenly referred to the incidents having occurred
between the period of August 1998 to June 2004.
He amended the
charge sheet to reflect the correct period.
He
did not know why the presider of the disciplinary hearing referred to
2004 in the ‘disciplinary findings’
.
He testified that the appellant was suspended in 2004 and there was
an unrelated charge of misconduct that he committed in 2004.
On this
score, Mr Kirpal’s evidence was clear.
[48]
As
to the particulars of claim reflecting the year 2004, he testified
that the particulars of claim were amended but he refused
to submit
them at the trial. It transpired that they were not actually filed.
Mr Kirpal’s performance as a witness on this
aspect was less
than satisfactory. That, however, does not take away from the
complainant’s evidence which was clear and
unequivocal that she
did not give the attorneys such an instruction.
[49]
Her
version is fortified by the fact that other than the alleged
discrepancy, no evidence pointed to the fact that the last incident

could have occurred in June 2004. Events that occurred in 2004
included the matter being reported to Ms Dlamini, the suspension

of the appellant in June 2004, the reporting of the matter to the
police in August 2004 and the appellant’s disciplinary
hearing
in November 2004. In the absence of any controverting evidence, it
must be accepted that any reference to 2004 as the year
in which the
last incident occurred was a mistake which could not, on available
evidence, be attributed to the complainant.
Inconsistencies regarding the complainant’s
explanations for not reporting the alleged sexual offences
[50]
It
was contended that the complainant gave inconsistent explanations as
to why she did not report the alleged sexual abuses. These
are not
inconsistencies at all, in my view. The reasons she gave are all
equally plausible and could all exist at the same time.
They relate
to different questions and situations and are all encompassing.
[51]
Her
fear of the appellant and of losing her job are justifications which
are both sensible. It is undisputed that there were hardly
any black
staff members at her place of work and her immediate supervisor was
the appellant who was in charge and well- respected
in their
work environment. Her perception of the power-dynamics must be seen
against that light. It was confirmed by the appellant
and Mr van
Staden that the appellant owned a rifle. Her fears following the
threats which she said he made, were not unfounded.
Professor Glydina
Spies testified to the difficulties that victims of sexual abuse are
confronted with, including powerlessness,
fear and the lack of trust
for others. She stated that ‘[v]ictims like [the complainant]
can become so stuck during the process
of the abuse that they have no
other choice [but] to accommodate the abuse and lose through that,
their right to make decisions’.
(Translated.)
[52]
As
regards her culture, Dr Rajgopal Kolapan, a Hindu scholar, testified
that if the complainant were to report the rape and sexual
assault to
her community, it was extremely likely that no one would believe her.
Her family and community would blame it all on
her, people would
start withdrawing from her family and her husband, and her extended
family would not associate with her. She
would effectively be
ostracised by her community.
[53]
I
n
Van
Zijl
v Hoogenhout
,
[11]
Heher
JA made the following remarks:
‘
Many
sexual abuse victims experience considerable guilt and shame as a
result of their abuse. The guilt and shame seem logically
associated
with the dynamic of stigmatisation, since they are a response to
being blamed and encountering negative reactions from
others
regarding the abuse. Low self-esteem is another part of the pattern,
as the victim concludes from the negative attitudes
toward abuse
victims that they are “spoiled merchandise”.
Stigmatisation also results in a sense of being different
based on
the (incorrect) belief that no one else has had such an experience
and that others would reject a person who had.
’
Although
these views were made in relation to child victims, they are equally
relevant in this case, given the power dynam
ics
between the appellant and the complainant.
There
is accordingly no merit in this criticism, in my view.
The
complainant’s alleged signing of a medical questionnaire
[54]
Counsel
for the appellant referred to a medical questionnaire dated
19 April 1998, which the complainant allegedly signed
when
she applied for a job at Denel. It was submitted that in this form
she stated that she was in ‘excellent health’,
which was
not true. Due to this, the appellant contended that because of the
lie in the form, her evidence could not be believed.
The complainant
disputed that she signed the form. Her evidence was that she always
put a line below her signature which was absent
from this form. The
issue of the disputed signature is also relevant in respect of
another disputed form, the attendance register
relating to the
Introduction to Labour Relations course dated 8 July 1999, where
‘sexual harassment’ was apparently
discussed as one of
the topics, which the complainant said she did not attend. I shall
return to this attendance register later.
[55]
Ms
Annette Button, who was called as a witness on behalf of the
appellant, testified that she was the only one with access to the

personnel files. It was accordingly argued that it was highly
improbable that someone else would have signed the medical
questionnaire.
Handwriting experts were called on behalf of both
parties. Mr Cloete for the appellant testified that the handwriting
characteristics
were similar between the signatures on the disputed
documents and those in the specimen and differences were minor. He
concluded
that there could not have been any forgery of the disputed
documents. The State’s expert witness, Mr Esterhuizen, on the
other hand found differences which he thought were significant. He
also found some similarities. He believed that Mr Cloete was
not
objective enough in his findings. The conclusion Mr Esterhuizen
reached after taking all aspects into consideration was that
the
result was inconclusive. His view was that if Mr Cloete had taken
those features into consideration, he could not have reached
a
definitive finding.
[56]
In
the end it could not be conclusively stated that the complainant was
untruthful when disputing the signatures on those disputed
documents.
It is further doubtful whether a medical form which the complainant
allegedly signed in April 1998 could discredit her
for the rest of
her life. It was not established, in my view, how that form could
discredit her as a witness in 2006/2007 when
she gave evidence.
The complainant’s alleged signing of the register of the labour
relations course
[57]
A
further issue as regards the attendance register in 1999, is that the
complainant’s evidence that she did not attend the
course was
supported by Ms Mariaan Grobbelaar who testified that she was
surprised when she noticed that the complainant,
as the executive
secretary, was not at the course. Ms Salome Pienaar, whom
counsel for the appellant had put to the complainant,
would testify
that she saw the complainant at the course, was not called as witness
on behalf of the appellant. While the complainant
initially agreed
that the signature on the attendance register was hers, on a closer
look she realised that it was different from
hers which led to the
calling of the handwriting experts. Her credibility on this aspect
has thus not been impaired.
Discrepancies relating to the Loftus visit
[58]
As
regards this incident, it was submitted that the complainant’s
evidence was inconsistent with that of other witnesses in
a number of
respects. Firstly, that all other witnesses stated that the visit to
Loftus occurred in 1998 and the complainant was
the only one who said
she and the appellant went to Loftus in 1999. On this aspect, sight
cannot be lost of the fact that the 1998
date is based on the fact
that the appellant and his witnesses testified that the visit to
Loftus was during the induction of the
complainant in May 1998 (the
appellant having first said it was in August 1998). The
complainant on the other hand testified
that the visit, as instructed
by the appellant, was to see how the renovations were going (which
was not during her induction but
months thereafter). Mr van Staden
testified that the complainant mentioned to him that the appellant
had asked her to accompany
him to Loftus.
[59]
The
contention that Mr van Staden also testified that the appellant and
the complainant went to Loftus in 1998 is not correct. Reference
to
1998 by Mr van Staden was in relation to the first time the
complainant and appellant had left the office together
which was when
they went to Waterkloof using the complainant’s vehicle. In
relation to this instance, his evidence went as
follows:
‘
Was
there any stage you had knowledge of, whether personal, whether what
Mrs [D . . .] shared with you, that they visited a place
together?
Let us talk about the first time that something like that took place.
--- The very first time the accused was looking
for the complainant
to take him to the AMG offices at the Air Force Base Waterkloof.
.
. .
Both
parties left the building simultaneously.
.
. .
Right
let me ask you this. Can you remember whether they were driving
together or in separate cars or... --- No, they were definitely

driving in the complainant’s car, because the accused car was
not available at that stage.’ (Translated.)
[60]
About
two weeks later, the complainant told Mr van Staden that the
appellant had touched her leg in the vehicle. On a separate occasion

in February/March 1999, (a date which is consistent with the period
stated by the complainant), Mr van Staden testified that he
observed
the appellant and the complainant leaving the office together for
Loftus. He could not remember whether they went there
in separate
vehicles. His evidence in regard to this trip was:
‘
Right.
Then what happened thereafter in February/March 199[9], what happened
then? --- During February/March the accused invited
the complainant
to accompany him to the box at Loftus Versfeld. (Translated.)
.
. .
Again
I saw them leaving the building . . .
Can
you remember in which car they were driving, both cars or can’t
you remember the detail?--That detail I can’t remember
or
whether they went in separate cars.’ (Translated.)
[61]
There
are a number of reasons why the appellant’s induction version
is highly improbable. Firstly, the appellant was at pains
to
demonstrate that the complainant was merely a secretary and not his
personal assistant. This is despite the complainant’s
letter of
appointment reflecting her as a personal assistant. According to the
appellant, had she been a personal assistant she
would not have been
required to attend to the suite as customer relations would not have
been part of her job description. Secondly,
he testified that he
would only have required her to go to the suite if none of his five
managers were available to entertain clients.
In the six years she
had worked for him that did not happen. She was never required to
attend the suite for the purposes of entertaining
clients. He however
opted to take her on the second week of her employment and ‘induct’
her in an empty suite, about
something that would rarely require her
involvement. He further conceded that after taking her to Loftus, he
did not remember her
visiting it again, even leisurely as she
disliked rugby.
[62]
The
reason for driving to Loftus in two vehicles does not bear scrutiny
either. The complainant had just joined AMG. To share her
marital
problems with her immediate boss whom she barely knew does not strike
as likely. According to the complainant, it was only
shortly before
her divorce (in 1999) and upon the appellant noticing bruises on her
arms that she told him about her husband assaulting
and almost
running her over with his vehicle. Furthermore, it was only after she
left her husband that he became jealous of her
and that was a few
years after she joined AMG. Looking at how difficult it was for the
complainant to share her intimate details,
according to her evidence
and that of Ms van der Westhuizen, it was highly unlikely that
she would have comfortably shared
details about her husband’s
behaviour on the second week of her employment with her new employer.
Even the assault by her
husband, which she had told the appellant
about, was shared a few years into her employment, after the
appellant had noticed bruises
on her arms and inquired about them.
[63]
It
was submitted that after the complainant and the appellant had been
to Loftus, they went to the head office in Waterkloof, where
the
appellant introduced the complainant to Mr van Coller and other
personnel. Mr van Coller testified that when the complainant
and the
appellant arrived there, the complainant was in a friendly mood and
he did not observe anything wrong with her behaviour.
The appellant
submitted that this evidence was not contested by the State but
acknowledged that the complainant denied that they
went to Mr van
Coller’s office or to Waterkloof after a visit to Loftus.
[64]
It
is incorrect to say that Mr van Coller’s testimony was not
contested by the State. The complainant denied that they went
to
Waterkloof after Loftus. Her evidence was that she was raped between
Jan
uary
and March 1999 at Loftus (long after she had joined AMG not during
her induction) as already stated. Secondly, the complainant
stated
that they went to Loftus for a different reason which was to show her
the renovations and thereafter went straight back
to the office.
[65]
Mr
van Coller curiously remembered in precise terms being told by the
appellant that they were from Loftus, and the colours of the
vehicles
the appellant and the complainant drove in May 1998, in particular
that of the complainant whom he was seeing for the
first time. Mr van
Coller was asked why he remembered that they came to see him in
mid-May 1998. His response was that, that was
when the complainant
was employed and the appellant always introduced his secretaries
there. One wonders if his recollection was
truly independent.
[66]
It
was further contended that the high court erred in finding that it
was not put to the complainant in cross-examination that the

complainant and the appellant went to Mr van Coller’s office at
Waterkloof after they came back from Loftus. This statement
was put
in general terms to the complainant. The only thing she was told in
cross-examination was that they went to Waterkloof:
‘
Further,
ma’am, with regard to the visit at the box, is it so that after
you were at the box, you went to Waterkloof base?
(Translated) --- No
I testified that we went back to our offices at the headquarters at
the Air Force.’
[67]
The
other important details were that she was taken to Mr van Coller and
his staff to be introduced and most importantly, Mr van
Coller’s
observations that she was very friendly and pleasant were not put to
her.
[68]
It
was also raised on behalf of the appellant that Mr van Staden had
testified that when the complainant returned from Loftus, he
asked
her what she observed at the suite and she only remarked ‘[p]retty’.
She also did not report the alleged injuries
to her vagina to any
medical doctor or to anyone else. Mr van Staden testified that he saw
the complainant again only the following
day, and not on the same day
as the minority high court judgment erroneously found. After
remarking about the suite being pretty
(the following day), she
immediately changed the subject and the suite issue was never raised
again. Mr van Staden did not notice
anything untoward then but in the
course of time, he observed that something was wrong but they never
spoke about it. He personally
attributed it to a very serious motor
vehicle accident that the complainant was involved in. He noticed
that her mood gradually
worsened, she became depressed and started
developing a fear of the appellant. She was extremely tense, was
constantly on medication
and suffered from weight loss. He
accompanied her to the doctor and psychologist. When he tried to
establish what was going on,
she simply said ‘pressures of
life’.
[69]
Mr
van Staden’s observations about the deterioration of the
complainant’s health after the Loftus trip coincide with
her
evidence that she became very depressed after the Loftus incident and
was put on anti-depressants. In December of that year
she mustered up
the courage to tell her therapist, Ms van der Westhuizen, about the
sexual abuse she encountered from the appellant.
While she also had
marital problems, which contributed to her deteriorating health, Ms
van der Westhuizen specifically testified
that while the complainant
had been telling her about her family problems, she noticed there was
something she was hiding and urged
her to talk about it. That is when
the complainant broke down and told her that she was sexually abused
at work.
[70]
An
issue was also taken with the averment by Mr van Staden that he was
told by the complainant a week before that the appellant
had asked
her to go to Loftus with him, while she testified that she told Mr
van Staden on the morning she went there. This takes
us nowhere, as a
trip to Loftus is not disputed. It is not clear how this discrepancy
discredits her evidence.
[71]
Mr
Langner denied that he received a call from the complainant, telling
him about the appellant sexually harassing her. The trial
court
rejected his evidence on the basis that Mr Langner and the appellant
had a close relationship. Evidence was led that Mr Langner
and the
appellant went on hunting trips together and visited each other’s
homes, the appellant’s wife worked for Mr
Langner and both Mr
Langner and the appellant were suspended by Denel in 2004 along with
Mr van Coller. According to the trial
court it was not surprising
that Mr Langner would protect the appellant. I accept that it is not
enough for a court to reject the
witnesses’ evidence on the
basis that they shared a close relationship with each other, while a
motive may exist to protect
a ‘friend’. While there is a
discrepancy between the evidence of Mr Langner and that of the
complainant as regards
the phone call, it is in my view, not of such
materiality as to reduce the quality of her evidence in relation to
the actual occurrence
of the rape at Loftus.
[72]
Mr
van Coller’s evidence similarly does not diminish the value of
the complainant’s evidence as to whether she was raped
on that
day. It is common cause that she was taken to an empty suite at
Loftus by the appellant (the appellant confirmed there
were no people
working in the suite); and as I have already indicated, the reasons
proffered for taking her there made no sense
and there is no reason
why they could not be rejected as not being reasonably possibly true.
The complainant’s failure to report the
alleged rape and other sexual abuse
[73]
A
further question was raised as to why the complainant would only
report the sexual assault to Mr Langner instead of the rape which
she
had just experienced. Furthermore, calling Mr Langner contradicted
the evidence that the complainant was afraid of white men.
The
complainant testified that when she phoned Mr Langner, he told her he
could not talk at that moment, but would return her call.
According
to her, if he had returned her call, as promised, she would have told
him about the rape. As the high court remarked
in the majority
judgment at para 41 ‘[i]t does not take much logic that rape is
a big step up from sexual [harassment] .
. .’. It is not
inconsistent that the complainant called Mr Langner, she testified
that she was scared but she took a chance
hoping that Mr Langner
would talk to the appellant and the sexual assault would stop. She
then heard of a similar complaint that
was laid by the appellant’s
previous personal assistant to Mr Langner who did nothing about it.
The
said personal assistant was forced to
resign. Based on this information, she did not contact Mr Langner any
further.
[74]
The
complainant explained why she would not report the rape incident to
Mr van Staden. She stated
that although
Mr van Staden was a good friend, she did not trust anyone and the
matter was embarrassing. Mr van Staden testified
that he understood
why she would not discuss sexual matters with him as a man. It was
contended that if she had discussed her marital
problems with him, it
made no sense for her not to tell him about the rapes. At no point
did Mr van Staden testify about her telling
him about the sexual
abuse she encountered from her husband, as counsel for the appellant
seemed to suggest. Undoubtedly, talking
about sexual matters is a
step up to discussing general family problems.
[75]
The
complainant further explained why she never reported the rapes to her
family doctor, Dr van Schalkwyk. He was also the appellant’s

and his wife’s doctor. This was confirmed by Dr van Schalkwyk
who testified that it was possible that the complainant would
not
tell him about the rape because he was known to both parties and, as
a white doctor who worked in an Indian community, he had
observed
that women in that community would never come to him with
gynaecological problems. The complainant further stated that
she was
weary of going to a gynaecologist after the Loftus incident because
she feared that news of the rape would reach her husband.
Whether or
not her fears were founded, should be assessed based on her
circumstances. This is something that was missed by the
minority
judgment of the high court, when criticising the complainant’s
failure to report the matter. Whether or not she
could have consulted
a gynaecologist further away from her location is something that was
not explored with her in cross-examination.
[76]
The
complainant was also criticised for not reporting the matter to the
security guards at Loftus. Even if the security guards were
there,
which she denied, it is strange to suggest that she should have
reported to them if she, for reasons she explained, could
not do so
at her workplace and elsewhere. This criticism is also based on the
conclusion that the complainant was bleeding after
the rape on her.
To the extent that this meant that she bled
profusely after the rape, that impression
is incorrect. She testified
that she noticed little blood spots on her panty at home caused by
small cuts on the outer walls of
her vagina.
[77]
As
regards reporting to the police, the complainant testified that the
appellant had a good relationship with generals and colonels
in the
army. The police force in the area was dominated by white men and she
did not trust the police. When she went to Brooklyn
Police Station to
report the sexual abuse, the environment was not welcoming for her to
report the sexual abuse and so she left.
Discrepancies
between the evidence of the complainant and her therapist
[78]
A
broad contention was made in the appellant’s written argument
without giving any specifics as to the respects in which the

complainant’s evidence differed from Ms van der Westhuizen’s.
The same general findings are contained in the high court’s

minority judgment. Having examined the evidence of both witnesses in
relation to their interaction and consultation, I find no
material
contradictions between them. The contra-distinctions between Ms van
der Westhuizen’s testimony and her written statement
were
reasonably explained by her.
[79]
Ms
van der Westhuizen testified that she practised as a therapist and
the complainant went to see her for the first time in December
1998
until mid-2002 when she left her business. The complainant was her
frequent client who consulted her on a weekly basis or

telephonically, when necessary. It was initially difficult for her to
uncover why the complainant had come to see her as she struggled
to
talk about her issues. The complainant initially spoke about her
marital problems and was troubled by her children. She confronted
her
about something she was hiding because every time she saw her, she
was thinner and more anxious. It was when she became a bit
harsh with
her that the complainant burst out in tears and told her about the
sexual abuse at work.
[80]
Ms
van der Westhuizen relayed in detail the incidents of sexual assault
and rapes which were told to her by the complainant. These
were
consistent with the complainant’s testimony in material
respects but for the discrepancies which, in my view, were not

significant. The complainant initially testified that she first
consulted with Ms van der Westhuizen in June 1999, but later
corrected
herself stating it was in December 1998. There was an issue
as to whether the sexual abuse was disclosed in June 1999 or in
December
1999 to Ms van der Westhuizen. Notwithstanding these, the
complainant and Ms van der Westhuizen were consistent on one thing,
that
she told Ms van der Westhuizen long after consulting with her
about the sexual abuse at work and with great difficulty. The time
it
took for the complainant to report the matter to Ms van der
Westhuizen is consistent with her asserted general behaviour of

finding it difficult to report the sexual abuse. Ms van der
Westhuizen testified that the appellant ‘sat’ on top of

the complainant during the rape incident at Loftus whilst the
complainant made no mention of that. Ms van der Westhuizen accepted

that the complainant did not say anything about ‘sitting’
but stated that she assumed that the appellant was in a sitting

(front) position when he pushed her onto the couch at Loftus. The
complainant confirmed that the rape at Loftus was from the front.
[81]
The
main discrepancies pointed out related to the written statements made
by Ms van der Westhuizen. She made one statement in October
2004 and
another in 2007. She explained that when she made a second statement
in 2007, she was no longer in Johannesburg and had
given all her
documentation to Mr
Keyser
for
investigation. She was unhappy that she had to make a second
statement and had to remember things ‘off the cuff’
and
did not have dates. They tried to see if they could retrieve any of
her material from the computer of her erstwhile business
partner but
were unsuccessful. The second statement was taken in great haste with
her standing along the road in Nelspruit where
she drove to meet up
with the police.
[82]
In
her 2004 statement she mentioned that ‘in 1998 [the
complainant] came to us for trauma counselling due to the fact that

she was being sexually harassed by a certain Koos Venter at work’.
In the same statement, she later stated that ‘[i]t
was
approximately one year later from the date of her first visit that
she had progressed to the point where she could reveal the
fact that
she had been raped’. There is no material discrepancy on this
issue.
[83]
In
Ms van der Westhuizen’s evidence-in-chief, she explained that
she made a mistake when she mentioned in her second statement
that
the complainant was raped both from the front and from behind at
Loftus. The complainant was only raped from the front. She
testified
that she meant to refer to all the rapes. She also muddled up the
incidents but corrected herself that the rape in Loftus
was from the
front and the rapes at the office were from behind, and all
vaginally. When asked why the details she testified about
were
missing from her statement, she stated that she did not know she
could put those details on paper and she was uncomfortable
to tell
two male police officers about breasts and touching vaginally. She
tried to put it in a way that they would understand.
Crucially at the
end of that statement is the inscription that she did not wish to put
any further information down on paper because
of her promise of
confidentiality to the complainant and that she was willing to
testify under oath. Close scrutiny of the record
reveals that Ms van
der Westhuizen’s evidence was consistent with that of the
complainant in material respects in how the
incident occurred, as
reported to her by the complainant. She adequately explained the
discrepancies appearing in her written statement.
Discrepancies between the evidence of the complainant and Mr van
Staden
[84]
There
is a discrepancy between the complainant’s and Mr van Staden’s
evidence regarding whether he stayed behind at
work after he was
asked to do so by the complainant if asked by the appellant to work
overtime. The complainant stated that she
was never again asked by
the appellant to work overtime after the one occasion when she was
raped. Accordingly, Mr van Staden never
had to stay behind. Mr van
Staden on the other hand testified that he worked
overtime
about six to seven times in 1999 and about four times between 2000
and 2002 and the overtime was not more than 30 minutes
after
knock-off time.
There
is a clear contradiction between the witnesses on this issue but it
cannot and should not lead to the total rejection of the
evidence, in
my view. The witnesses are ad idem on one crucial issue which is that
the complainant asked Mr van Staden to stay
behind because of the
appellant’s actions, although according to the complainant she
never had to work overtime after the
one occasion when she was raped.
Other discrepancies raised are, in my view, not material as to
vitiate the complainant’s
credibility.
Alleged
improbabilities
[85]
It
was submitted that the appellant was not responsible for the
complainant’s medical condition, she was treated for the same

medical condition before the alleged sexual abuse and was sexually
abused by her husband. Dr van Schalkwyk testified that while
the
depression could be as a result of the vehicle accident the
complainant was involved in; he did not rule out other reasons.
Dr
van Schalkwyk did not testify to the details of the psychological
issues the complainant suffered from. He was her general family

doctor, not her psychologist. The person that the complainant
eventually opened up to was Ms van der Westhuizen, after being pushed

by her to do so, and approximately a year after consulting with the
complainant did she open up. Ms van der Westhuizen, a trained

therapist could see that something was bothering the complainant.
Whilst abuse by the husband was acknowledged and reported, the
secret
that bothered the complainant, which she struggled to talk about, was
the abuse she experienced at her workplace (the incidents
of rape and
indecent assault). It is important to also state that the details of
sexual abuse she experienced at the hands of her
husband were not
raised in any detail during Ms van der Westhuizen’s
cross-examination. The only exchange counsel referred
us to on this
aspect went as follows:
‘
She
could no longer be intimate with her husband? --- She was intimate
with him but it was difficult for her.
Was
she apathetic? --- No, it was rough sex.
It
was rough sex --- It was.’ (Translated.)
[86]
Ms
van der Westhuizen’s evidence strengthens the complainant’s
version and the probabilities that the events as relayed
by the
complainant occurred, as she had told them to a therapist, in 1999
already, up to 2002. Based on Ms van der Westhuizen’s
evidence
that she was told about the events from 1999, the complainant’s
version could not have been trumped up in 2004 when
a case was opened
against the appellant. The complainant gave a detailed account of the
incidents. There were various inconsistencies
particularly with
regard to the dates, but, in my assessment, viewed carefully and
holistically, her evidence was reliable. She
provided reasons for not
reporting promptly and the plausibility of her reasons were supported
by the experts. These reasons are
not unusual in sexual offence
cases
.
[12]
The
appellant himself struggled recalling dates in certain instances.
Ms van der
Westhuizen had recorded the details of rape and sexual assault
reported to her by the complainant since December
1999, but stated
that her documents were taken by the investigating officer, Mr Keyser
and never returned.
[87]
There
was no suggestion that the complainant colluded with Ms van der
Westhuizen. There is no reason why Ms van der Westhuizen would
give
false evidence in support of the complainant. It is crucial that the
first written statement made by Ms van der Westhuizen
was in October
2004, long before she testified and it recorded the report of the
sexual assault and rape of the complainant by
the appellant. Ms van
der Westhuizen had moved to Nelspruit having thought the matter was
long resolved. She felt inconvenienced
by having to make another
statement and recalling events which occurred many years ago.
[88]
While
many of the incidents took place during office hours, they occurred
behind closed doors. There is evidence of the appellant
closing or
locking the door. One incident of rape occurred after office hours
when no one else was in the office. It is an overstatement
to say the
incidents occurred ‘while there were other personnel present’.
Other than Mr van Staden, it is not clear
which other personnel
occupied offices close to the appellant’s office. Furthermore,
the appellant was the executive manager,
there is no evidence as to
the accessibility of his office.
The
appellant conceded in cross examination that his office was sometimes
closed when the complainant was there because they discussed

confidential matters. He confirmed that it was customary for the
complainant to bring documents to his office for his signature.
He
further confirmed that the complainant brought documents in August
1998 but did not remember whether the door was closed or
open at that
time. Crucially he was asked:
‘
Ja
as die deur toe was? –W
el
die moontlikheid bestaan as die klaagster so getuig dit het so gebeur
dan is dit wat sy getuig het voor.
En
dal sal niemand dit gesien het nie?—Wel as die deur toe is dan
kan niemand dit sien nie.’
[13]
[89]
Consequently,
the complainant’s troubled marriage and her fragility as a
person, which were raised as factors that caused
her depression, do
not make sexual abuse by the appellant less probable. That is so,
even if she were to have been sexually abused
by her husband.
[90]
When
viewed with other evidence, the trial court rightly rejected the
appellant’s version as not being reasonably possibly
true.
Apart from offering some explanation as to the Loftus trip, the
appellant gave a bare denial. I am satisfied that having
weighed the
strengths and weaknesses of the evidence on both sides, the State has
proven its case beyond reasonable doubt. I agree
that there is no
obligation on the appellant to provide any motives as to why the
complainant would
falsely
implicate him. However, to the extent relevant, the reasons he
offered make no sense. Even if there were problems to the
extent
painted by the appellant between the complainant and himself, it
seems to me she had more to lose as a lower ranking staffer
and woman
of the Hindu faith than to lay charges of this nature against a
powerful executive and expose herself to the humiliation
and trauma
of a rape trial. She stood to be rejected by her community and family
than realise any gain.
Discrepancy
regarding only one incident between August and December 1998
[91]
The
appellant alleges that the complainant testified that during the
period of August to December 1998 she was actually sexually
abused
only once, although the appellant was charged for two offences
covering that period. She later changed her version and testified

that she was sexually assaulted twice.
In
her examination-in-chief, the complainant’s evidence was that
the sexual assault occurred twice during that period. During

cross-examination the defence counsel put the following to her:
‘
Ma’am
I asked questions of you yesterday about the first incident. We now
get to the second incident.
It
is Charge 2.
Could
you please tell the honourable court when this event took place the
second time that you were allegedly sexually harassed
or indecently
assaulted --Between August 1998 and December 1998.
.
. .
How
many times did an event occur in that time? -- Once.
Where
was this? – Our offices.
.
. .
And
please tell the honourable court what happened on that occasion ---
Mr Venter called me into his office and said he wanted to
give me a
hug for all the good work that I was doing
.’
(Translated.)
(Emphasis added.)
[92]
It
is clear from this exchange that her reference to an event occurring
once during the period was in relation to the second count
as put to
her by counsel and not the entire period. There is no doubt in her
evidence that she was sexually assaulted twice during
that period.
Conclusion
[93]
Having
assessed the totality of the evidence, I am of the view that the
appellant
was
correctly convicted on all the charges. I am satisfied that the
evidence accounts for all the charges. The appellant’s
grounds
of appeal and argument did not reveal any incongruities that ought to
have been considered by this Court in respect of
each count. Whilst
the magistrate can be criticised for not having given sufficient
reasons in respect of each charge, the conclusions
that he arrived
at, as borne out by the record, were correct.
[94]
The
issue of the vagueness of the charges and their lack of particularity
that my colleague raises in the minority judgment was
not raised by
the appellant as a ground of appeal nor did it enjoy any prominence
during oral argument before us.   It
was neither brought up
as an issue in the trial court nor was it raised in the high court.
At the commencement of the trial, the
appellant who was represented
by the same counsel who appeared before us showed no difficulty in
pleading. In fact, his counsel
proceeded as follows:
‘
Your
[Worship], I can only say I have worked through all these charges
with my client, he is completely informed about the contents
of all
these charges. I don’t even think it will be necessary to read
them aloud to him. We can in the case of each charge
simply ask him
how he pleads against it.’ (Translated.)
[95]
During
the course of the trial the appellant proceeded to give a version in
respect of one count and offered a bare denial in respect
of others.
Nevertheless, the charges referred against the appellant were clear
and unambiguous in my view. Given the nature of
the offences,
reference to months and years in the charge sheets as the periods in
which the alleged incidents occurred as opposed
to precise times and
dates did not prejudice the appellant.
[14]
[96]
Similarly,
the issue of the trial court’s failure to deal with the
evidence on each count, was also not raised as a ground
of appeal.
The appellant did not complain, as appears in the notices of appeal
both before the high court and this Court, that
his constitutional
right to a fair trial was violated for this reason. Nor did he
protest that his trial was not conducted in accordance
with the basic
notions of fairness and justice. I accordingly do not share my
colleague’s view in the minority judgment regarding
these
issues.
[97]
While
the charges are couched in broad terms as regards the period in which
the offences were alleged to have been committed, they
specified what
the appellant was accused of having committed during the relevant
periods. In any event, he never complained of
any inability to plead
for lack of understanding of the charges, at any stage in the
proceedings. He knew what charges he had to
answer to and pleaded
without any difficulty by denying all the allegations against him in
terms of s 84 of the CPA
[15]
read
with s 35(3)
(a)
of the Constitution.
[16]
[98]
For
those reasons the appeal is dismissed.
_________________________
N P MABINDLA-BOQWANA
ACTING
JUDGE OF APPEAL
Cachalia
JA (dissenting)
Introduction
[100]
The first judgment speaks eloquently of the terrible toll of sexual
abuse on its victims. This is why public policy demands
that crimes
of this nature are properly investigated, prosecuted and tried. Where
the courts properly convict perpetrators the
sentences imposed should
reflect the gravity of the offence. However, in
Bothma
v Els
[17]
the
Constitutional Court cautioned:
‘
The
gravity of the offence and the public interest in ensuring that
perpetrators are brought to book can never in themselves justify
a
conviction if the evidence is insufficient
.
’
This
appeal demonstrates this pithy statement graphically. I have read the
judgment of Mabindla-Boqwana AJA (the first judgment).
I respectfully
disagree that the appeal should fail. I would uphold the appeal. My
reasons follow.
[101]
The sexual crimes for which the appellant stood trial – twelve
in all – span four years, between 1998 and 2002.
The appellant
was tried in a regional court in 2006, and was legally represented
throughout. In August 2009, in an
ex tempore
judgment, the
magistrate acquitted him on the rape charge in count 12, and,
convicted him on the remaining 11 counts: four of rape
and seven of
indecent assault. He was sentenced in June, the following year. On
each of the rape counts he was given a sentence
of ten years’
imprisonment, and three years on every count of indecent assault. The
sentences were ordered to run concurrently.
In the result he was
sentenced to ten years’ imprisonment. The magistrate declined
to give further reasons to justify his
findings. The appellant
appealed only against his convictions.
[102]
The appeal came before two judges in the Gauteng Division of the High
Court in December 2016. They were divided and could
not reach a
decision. The matter was then referred to a full court. The three
judges too, were unable to reach unanimity. The majority
dismissed
the appeal on all counts; the minority – in a persuasive
judgment – would have upheld the appeal, also on
all counts. I
shall refer to the two judgments in the full court as the majority
and minority judgments respectively. The appellant
applied for, and
was granted special leave by this court on 18 June 2018.
[103]
It is apposite to point that an applicant for special leave must meet
a higher threshold than merely showing a reasonable
prospect of
success. He must show special circumstances that justify this. These
would include raising a substantial point of law,
that the issues –
even of fact – raised are of public importance or that there
are strong prospects of success.
[18]
He
satisfied all these requirements, as this judgment shall demonstrate.
The
proceedings in court of first instance (the trial court)
[104]
Section 84 of the CPA read with s 35(3)
(a)
of
the Constitution requires an accused to be informed, with sufficient
detail, both as to the time and place where the offence
was allegedly
committed as may be reasonably sufficient to inform him of the nature
of the charge.
[19]
The
charges should also be clear and unambiguous. Fairness to the accused
demands this.
[105]
Hiemstra observes that apart from considerations of fairness towards
the accused and compliance with legal provisions, precise
formulation
of the charges serves as a useful exercise for the prosecutor, who
has to consider the evidence at the State’s
disposal and the
core elements of the charge or charges he or she wants to prove.
[20]
[106]
Section 83 of the CPA is also important when it is doubtful which
offence was committed.
[21]
It
allows a prosecutor to formulate a single charge, multiple charges or
alternative charges if it is uncertain what may be proved,
subject of
course to the accurate formulation of the charge or charges. Here
too, the judicial officer and the accused must be
left in no doubt
what must be proved and the case that must be answered.
[107]
Where the charges are unclear or vague, the accused is not left
without a remedy. He may object, in terms of s 85
(d)
of the
CPA, that the charge lacks sufficient particularity to allow him to
plead. The court may order the State to remedy the defect
or if it is
unable to, quash the charges.
[108]
As will become apparent when I consider the charges against the
appellant most were unclear and vague regarding the times
and the
precise acts he was alleged to have committed.
[109]
At the conclusion of the trial, if the judicial officer convicts an
accused, there should also be no doubt why. This must
appear from the
reasons of the judgment. The duty to provide reasons lies at the
heart of an accused’s constitutional right
to a fair trial in s
35 of the Constitution.
[110]
In this regard rule 67(5) of the Magistrates’ Courts rules
stipulates that the magistrate must provide ‘a statement
in
writing’ (a judgment) showing: the facts found proved; the
reasons for any finding of fact specified in the appellant’s

grounds of appeal, and the reasons for any ruling on any question of
law or as to the admission or rejection of evidence so specified
as
appealed against.
[111]
The list of factual findings and reasons therefore serves several
important purposes. First, it focusses the judicial officer’s

mind on the justification for each finding of fact or law; secondly
it enables the appellant to formulate the grounds of appeal,
and
thirdly, it assists an appeal court in its task.
[112]
Where an
ex tempore
judgment does not adequately deal
with the matters raised in the grounds of appeal, a mere reference to
the judgment is insufficient.
Rule 67(5) therefore serves an
important purpose in affording the magistrate the opportunity to deal
specifically with the
points in the grounds of appeal. However, in
this case, the magistrate merely signed off a standard template
indicating that he
had ‘nothing to add to [his] reasons for
conviction and sentence as contained in [his]
ex tempore
judgment’.
[113]
It seems that the magistrate had not even had sight of the notice of
appeal, which was delivered to the clerk of the court
on 24 June
2010. The magistrate’s standard response was signed more than a
month earlier, on 9 May 2010.

This suggests that he was not even aware of the grounds of appeal
when he signed this pro forma document, or that there was no
appeal
against the sentence.
[114]
As I shall endeavour to point out when dealing with the evidence on
each count, had the magistrate considered the appellant’s

grounds of appeal he would have realised that his judgment did not
pertinently deal with some of the specific points raised in
the
grounds of appeal, and that a failure to supplement his reasons would
be irregular for failure to comply with his duty under
s 67(5). He
would also have realised that there were errors in the judgment and
parts of it were missing, which made it difficult
to understand. The
courts that had to adjudicate the appeal, including this court, were
therefore placed at a disadvantage, and
had to do their best with the
inadequate material before them.
[115]
I do not suggest that this failure on the part of the magistrate is
itself a ground to vitiate the proceedings. But I shall
show, by
reference to the evidence that this failure to make specific factual
findings and to provide proper reasons therefore
contributed directly
to the infringement of the appellant’s constitutional right to
a substantively fair trial, which I consider
below at para 120.
The
ex tempore
judgment
[116]
The judgment of the trial court is poorly constructed, error ridden
and devoid of any clear reasoning. The court did not analyse
the
evidence on each count and made no specific factual findings in
relation to any of them, as it was required to do. Instead,
it
adopted a broad-brush approach: First, it accepted that the
complainant did not report the abuse, initially, for various reasons,

including fear of reprisal from the appellant and opprobrium from her
community. Second, it found that though there were contradictions
and
inconsistencies in her evidence, which were not dealt with or
explained in the judgment, these were not ‘material
discrepancies
of contradiction’, as they were attributable to
the complainant’s failing memory, rather than dishonesty.
Third, it
appears to have found that there were no ‘inherent
improbabilities’
[22]
in
this regard, although it is not clear which evidence was being
referenced. Midway through the judgment, after making these findings,

and without having considered or analysed all the evidence it came to
this conclusion:
‘
In
short, in concluding the evidence of the state, after proper
consideration of the evidence in light of the totality of the
evidence
that the court has evaluated, the court finds that the
complainant impressed the court as a person whose evidence may
actually
be believed.’
[117]
The trial court then dealt with and rejected the appellant’s
testimony regarding the complainant’s possible motives
for
falsely implicating him in these crimes. Thereafter, it dealt, very
briefly, with the Loftus Versveld incident (count 3) and
rejected the
appellant’s version, again without proper consideration of the
evidence.
[118]
Finally, it held, also without providing any reasons, that count 12,
the final charge of rape was not proved beyond a reasonable
doubt,
and it rejected as false the appellant’s version on all the
remaining counts. As I shall endeavour to show the failure
by the
magistrate to direct his mind to the reasoning for his conclusion on
count 12 materially impacted upon his evaluation of
the evidence on
the other counts.
[119]
There were also glaring legal errors in the trial court’s
approach to the evaluation of the evidence. First, it illogically

approached its task in a ‘compartmentalised and fragmented’
[23]
way,
as the quoted passage above confirms. Secondly, as I shall
demonstrate with regard to the assessment of the evidence on each

count, it paid no heed to this court’s injunction regarding the
process of reasoning applicable to the proper test in a criminal

trial:
‘
The
proper test is that an accused is bound to be convicted if the
evidence establishes his guilt beyond reasonable doubt, and the

logical corollary is that he must be acquitted if it is reasonably
possible that he might be innocent. The process of reasoning
which is
appropriate to the application of that test in any particular case
will depend on the nature of the evidence which the
court has before
it.
What
must be borne in mind, however, is that the conclusion which is
reached (whether it be to convict or to acquit) must account
for all
the evidence. Some of the evidence might be found to be false; some
of it might be found to be unreliable; and some of
it might be found
to be only possibly false or unreliable; but none of it may simply be
ignored.
’
[24]
(Emphasis
added)
[120]
Third, it did not deal with the evidence on each specific count,
apart from a superficial treatment of count 3. It convicted
the
accused on 11 counts without specifying the reasons why it found each
count was proved. I shall demonstrate that these cumulative
errors on
the part of the trial court violated the appellant’s
constitutional right to a substantively fair trial in s 35(3)
of the
Constitution and consequently resulted in a failure of justice.
[25]
The
charges for January 2001 to June 2002
[121]
I turn to count 12, the fifth rape count and final charge, which was
one of the four incidents, according to the charge sheet,
alleged to
have taken place during the period January 2001 to June 2002. Its
significance is fundamental to the outcome of this
appeal. The other
three charges were count 9 (indecent assault), and counts 10 and 11
(rape). As mentioned earlier, the magistrate
acquitted the appellant
on count 12, without giving reasons. In this court the State
conceded that the convictions on the
three other charges during this
period were also not sustainable. The concession was properly made
and, in effect, amounted to
those convictions being abandoned. This
notwithstanding, the first judgment, persists in dismissing the
appeal on these counts.
[122]
An analysis of the evidence on count 12 provides clear support for
the magistrate’s conclusion. Had he directed his
mind to the
reasoning, this would unavoidably have led to the appellant’s
acquittal on at least several other charges. An
assessment of the
evidence reveals this starkly.
[123]
In her evidence in chief, the complainant testified that the rape,
which forms the basis of the charge in count 12, occurred
in June
2002. However, she also testified that the last incident, in June
2002, was the ‘oral sex incident’.
[124]
It is unclear to which incident she was referring, as count 9 was the
only charge that mentioned that the appellant had, on
two occasions,
forced her to have oral sex by pressing her head against his penis.
There was no reference in the charge sheet to
either of these
incidents having occurred at the same time as any of three rape
counts during this period. It also appeared from
the questions put to
her that the prosecutor also understood the two incidents of oral sex
to be part of count 9 (the sexual harassment
charge) and not related
to any of the three rape counts:
‘
Prosecutor
:
Right, what I would like to establish is you referred to the sexual
harassment [continuing] during this period of time, January
2001 to
June 2002. The same that you just indicated and twice that he forced
you to have oral sex. Now the three occasions of unprotected
sex that
took place, can you remember . . . Was it in between the oral sex,
before it or after that? – The two was when I
refused the oral
sex.
Prosecutor:
The
what? – The two incidents [were] when I refused the oral sex.
Prosecutor
:
You refused: Yes, and then . . . Is it that when you had unprotected
sex. – Yes, yes.
Prosecutor
:
Yes? – And the other one was in between.
Prosecutor
:
In between the two incidents of oral sex? – Yes.’
[125]
Her evidence – still in chief – that there were three
incidents of oral sex, of which two had occurred at the
same time
when she was raped, was clearly inconsistent with the allegation of
only two such incidents in count 9. The allegation
was also at odds
with count 12, before its amendment, i.e., that the rape charge was
alleged to have happened in July 2002, not
June 2002.
[126]
Following this part of the complainant’s evidence the
prosecutor applied for, and was granted, an amendment to the charge

sheet to substitute June 2002 for July 2002, in count 12,
despite opposition by the defence. The complainant then testified

that the last incident of rape and oral sex occurred in June 2002.
The rape before that, she said, did not involve oral sex, but
the
rape preceding it (the third rape) did. Other than confirming the
three incidents of rape during this period, she gave no indication

when the two incidents preceding the June incident took place.
[127]
However, when cross-examined, she said that the last incident, which
she now testified had occurred in June 2001, was when
the appellant
called her into his office, closed the door behind her, fondled her
breast and touched her private parts. That was
all he did; he did not
rape her. When the inconsistency regarding both the date (June 2001)
and the nature of the last incident
was put to her she answered that
she was confused about the dates. She maintained that the last
incident, when the appellant fondled
her breast and touched her
private parts, took place in June 2002. Again, when it was put to her
that this version was still inconsistent
with her assertion that she
was raped on the last occasion, she answered that she was unable to
differentiate between the dates
on which she was raped and the others
when she was sexually harassed. Why, counsel then asked, was she so
sure that the last incident
was in June 2002, as she had testified in
chief. She answered:
‘
Because
when I testified the previous time I took it from the beginning and
it was much easier to go from the start right up to
the end.’
This
response revealed that she had rehearsed her version before giving
her testimony and was unable to retain a coherent narrative
when
questioned closely.
[128]
Cross-examined further, she adjusted her evidence, once again. This
time she said that the last incident was a rape. When
asked this time
how she now remembered this rape when she had testified earlier that
she could not remember the last incident she
answered in an attempt
to cover both rape and sexual harassment:
‘
That
is why I am saying to this court between January 2001 and 2002
certain events happened which included sexual harassment and
rape.’
Pressed
even further she conceded that she could not remember whether or not
the last incident was a rape. Neither could she remember
the date or
the year when it took place. At this stage count 12 for all intents
and purposes had collapsed.
[129]
It gets worse. It transpired that the complainant had instructed her
attorney, Mr Kirpal, in 2004, to institute civil proceedings
against
the complainant’s previous employer relating to these
incidents. The allegation in her pleadings was that these various

incidents occurred during the period 1998 to 2004. The charge sheet
in the disciplinary proceedings against the appellant, also
put the
dates at 1998 to 2004, as does the presiding officer’s
judgment. Mr Kirpal was the prosecutor in the disciplinary
case
against the appellant, and the complainant also testified
there.
[130]
In the complainant’s testimony in these proceedings, she denied
having instructed Mr Kirpal that the last incident was
in 2004. She
also denied having given this evidence in the disciplinary
proceedings. But, she was unable to explain how the date
appeared in
her pleadings. Nor could she explain how the judgment in the
disciplinary proceedings reflected this date. The State
called Mr
Kirpal to corroborate the complainant’s evidence. He attributed
the date, 2004, in the pleadings to an error, but
under
cross-examination his explanation was so unsatisfactory that no
credence could be given to it.
[131]
The record of the disciplinary hearing was not produced in the trial
court. It was therefore not conclusively proved that
the complainant
had given the incorrect date in her evidence in the disciplinary
proceedings. But, in the absence of any satisfactory
explanation
regarding the appearance of the date in the pleadings and
disciplinary proceedings, this raised further doubt about
the
complainant’s evidence regarding the last incident having
occurred in June 2002. The onus was on the State, not the defence,
to
remove any reasonable doubt in this regard. It did not.
[132]
In summary, in regard to count 12, this much is clear. There were
four different dates that emerged in the record as to when
the last
incident happened: the un-amended charge sheet, which put the date at
July 2002; the amended charge sheet, which accorded
with her evidence
that it was in June 2002; her earlier evidence that it happened in
June 2001, and, finally 2004, the date that
appears in the pleadings
and disciplinary proceedings.
[133]
More fundamentally the complainant contradicted herself concerning
the nature of this offence. The charge sheet in count 12
referred to
rape. Her evidence in chief, however, referred to the ‘oral sex
incident’ which, as she explained with
reference to the last
incident, was that the appellant had ‘unprotected sex’
i.e., had raped her after she refused
to have oral sex with him. She
then contradicted herself by describing the last incident as one of
sexual harassment, when he fondled
her breasts and touched her
private parts; there was no reference to any rape or oral sex.
Thereafter, she testified that she could
not remember what happened
during the last incident.
[134]
Apart from the fact that there were four different dates that emerged
in the record as to when the last incident is alleged
to have
occurred, I find it not only improbable, but also not credible, that
the complainant was unable to recall or distinguish
whether this was
a rape at all (with an attempt at oral sex) or merely an incident of
sexual harassment. Had the magistrate properly
directed his mind to
the evidence, he would unavoidably have found, as he should have,
that her testimony was not only unreliable
but untruthful. The
magistrate, therefore, correctly acquitted the appellant on this
count. And with respect, he could not have
come to any other
conclusion. Which brings me to three other counts alleged to have
happened during the period January 2001 to
June 2002.
[135]
Two of those counts – counts 10 and 11 – both alleged to
be rapes and chronologically followed count 9, the indecent
assault
charge. These are three discrete charges, which the State had to
prove separately. But it did not do this.
[136]
The prosecutor was clearly taken aback by the complainant’s
testimony, referred to earlier, that there were three, not
two,
incidents of oral sex as alleged in count 9. What is more, the
complainant associated two of these incidents with a rape at
the same
time. The third incident of oral sex, she testified, happened between
the two rape incidents.
[137]
This evidence was inconsistent with the allegation in the charge
sheet there were only two incidents of oral sex, and that
they were
part of the indecent assault charge in count 9, which chronologically
preceded the three rape charges during this period.
The prosecution
would have appreciated that splitting two incidents of oral sex into
three separate counts – one of indecent
assault and two of rape
– would constitute an improper splitting of charges and if
convictions followed, would amount to
an improper duplication of
convictions. Yet, this is what the trial court erroneously found.
[138]
Once it is accepted that count 12 was not proved, for the reasons
stated earlier, counts 9, 10 and 11 also had to fall through
a domino
effect. Count 11 would fall because the complainant’s evidence,
which was materially inconsistent with the allegation
in the charge
sheet, was that the third incident of oral sex, happened between the
two rapes. In other words it preceded count
12. But count 11 was a
rape charge, not an indecent assault charge. So, count 11 had to
fall. And, it follows that count 10 could
not stand either because
the charge preceding this was also rape, not indecent assault. It
also bears mentioning that the State
made no attempt to amend the
charge sheet to accord with the complainant’s evidence, which
was also highly prejudicial to
the appellant.
[139]
The most glaring contradiction related to the number of times she was
raped during this period. The charge sheet alleged three
rapes
(counts 10, 11 and 12).       Her
evidence in chief confirmed this, linking two of the rapes
with an
attempt to have oral sex. Under cross-examination, however, she
testified that the appellant had raped her only twice during
this
period. Only to adjust her evidence later to three, again.
[140]
It also appears from her pleadings in her civil claim against her
employer that there was no allegation that the appellant
had raped
her five times. If this was what her case was, each rape would have
constituted a separate cause of action for which
the employer would
be liable for damages. Her particulars of claim, however, alleged:
‘
During
or about the period 1998 to 2004 and at or near the premises of AMG
and also at Loftus Versveld Stadium, Pretoria, the said
Koos Venter,
and during working hours, had sexual intercourse with the plaintiff
without her consent.’
The
claim as formulated suggests that her claim was aimed at establishing
two incidents of rape, not five. This gives further credence
to the
appellant’s contention that the three further charges of rape
(counts 10, 11 and 12) were simply made up. The trial
court ignored
all these glaring contradictions, as, with respect, does the first
judgment.
[141]
Count 9 – indecent assault – provides further reason for
why the four charges during this period fell woefully
short of the
standard required for a conviction.       The
unlawful acts alleged during the period
here were that he touched
and/or rubbed and/or inserted his fingers into her vagina and/or
groped her breasts and also on two occasions
forced her to have oral
sex by pressing her head against his penis.
[142]
It is unclear whether the acts other than the oral sex incidents,
which are alleged to have happened on two occasions, are
also alleged
to have occurred on several occasions or only once. It is unfair to
expect an accused person to plead, much less defend
himself, against
such vague allegations. The evidence reveals this starkly.
[143]
I have pointed out earlier that in her evidence the complainant
linked two of the incidents of oral sex to the rape allegations,
and
a third that was not mentioned in the charge sheet, contrary to the
allegation in count 9.
[144]
Her evidence on count 9 was even less clear. When asked by the
prosecutor to explain ‘exactly’ the nature of the
sexual
harassment between January 2001 and June 2002, she answered vaguely
and generally:
‘
He
used the same tactics whereby I had to bring documents to his office.
He would then close the door. It would either be him fondling
my
breasts or touching my private parts, always from behind.’
[145]
This vague, unspecific response, prefaced by the words, ‘he
would’ was a constant theme of her testimony. Thus
when asked
to describe what the appellant did on the first incident of oral sex,
her answers proceeded as follows:
‘
As
usual he would call me into his office, he grabbed me from behind and
first started fondling my private parts.
By
fondling with your private parts, what did he do exactly with your
private parts? – He would play with my vagina with his
fingers.
Did
he at any stage insert his fingers in your private parts (on other)
occasions? – No.
Put
his fingers inside your vagina? – No.
Right,
on the other occasions where he did not force you to have oral sex
with him, did he at any stage put his fingers in your
private parts
there? – During the sexual harassment yes.’
When
cross-examined as to whether he had inserted his fingers into her
private parts during this period, her response was she could
not
remember but it could have happened ‘during the sexual
harassment acts’. Later she testified that ‘it is
a
possibility’ that he did and thereafter she said that ‘he
could have’.
[146]
The complainant then proceeded to explain how the appellant had raped
her. What this passage illustrates, starkly, is not
just the
generality of the evidence, but the prosecutor putting leading
questions to her regarding the alleged insertion of the
appellant’s
fingers into her vagina, and her materially contradictory response
thereto. What is more, the evidence on one
charge of indecent assault
was spread over the period of 18 months with no dates and even
approximate times, the exception being
the last incident in June
2002, which she testified implausibly:
‘
I
am not sure whether it was sexual harassment or whether it was rape.
I cannot remember. But an incident did occur.’
[147]
It is apposite to once again refer to her civil claim. Her
particulars of claim, as it related to the allegations of indecent

assault read as follows:
‘
During
or about the period 1998 to 2004 and at or near the premises of AMG
and also at Loftus Versveld Stadium, Pretoria, the said
Koos Venter
committed various acts of assault indecency upon the plaintiff on
various occasions
inter
alia
1.
Fondling her breasts
2.
Touching her vagina
3.
Rubbing himself against the plaintiff in an act of simulated sexual
conduct,
and
4.
Touching her legs.’
There
is no reference to the most serious allegation in count 9, or to any
of the other indecent assault charges pertaining to either
the
insertion of his fingers into her vagina or having attempted to have
oral sex with her. There was no explanation for this discrepancy.

Also noteworthy is the allegation that the appellant touched her leg
without her consent. In this regard, it was not her evidence
that the
appellant had done so; it was that she had told Mr van Staden that
the appellant had done so, so that he would remain
in the office when
she worked overtime to protect her from any further abuse. The
allegation, on her own version, is false.
[148]
It follows that given the vague nature of the allegations in count 9
together with the lack of clarity in her evidence regarding
the
number of incidents, when they were alleged to have taken place, and
what exactly was done on each occasion, the conviction
on this count
was also bad. The inevitable conclusion is that the convictions on
counts 9, 10 and 11 could not stand, not only
because her evidence
was contradictory in several material respects, and therefore
unreliable. But, even more important, because
the inference that she
was untruthful, is irresistible.
Counts
5-8 (2000)
[149]
Counts 5 to 8 are alleged to have happened in 2000: count 5, in
January, when the appellant was accused of having indecently

assaulted the complainant by rubbing and/or groping her vagina; count
6 in January was a charge of rape; the only rape count in
2000, count
7, indecent assault, is alleged to have happened during July to
August, the allegation being that he also rubbed and/or
groped her
vagina; but this time also groped her breasts, and count 8, also
indecent assault, which occurred between September
and December when
he indecently assaulted her by groping her breasts.
[150]
In respect of count 5 the evidence read as follows:
‘
Prosecutor:
Can you tell the court what was the sexual harassment that took place
in January 2000? – It was always the same
tactics as I have
mentioned before where he would fondle my breasts or touch my private
parts from . . .
And
where did this then happen? – At our offices.
Right,
so this was during January 2000 is that correct? – that is
correct.’
[151]
This was the sum total of the evidence upon which the conviction on
count 5 was based. As I have mentioned above, this charge

specifically excluded a reference to his having groped her breasts.
Yet, her answer included this in another generalised response.
Given
the vagueness of the allegation and the evidence, no court could
convict on this charge.
[152]
In respect of count 7, her evidence was that from February until June
2000 the appellant was away from the office on hunting
trips, but she
knew the sexual harassment would continue upon his return. No
evidence was led in chief regarding the two allegations
in this
count. Counsel for the appellant cross-examined her on this
allegation too, and elicited another vague response:
‘
The
normal sexual harassment at the office, he would use the same tactics
where I would bring documents to his office. He would
grab me from
behind, fondle my breasts and later my private parts and I would
always tell him to stop . . .’
[153]
This happened many times, she added. As to whether the appellant only
touched her vagina or inserted his fingers into it,
she answered,
again without any specificity:
‘
He
used to touch on some occasions and on one or two occasions he
inserted his fingers.’
[154]
On Count 8, she testified that between September and December 2000,
after she had returned from hospital, the appellant groped
her breast
on top of her clothing ‘often’. She confirmed this under
cross-examination. This evidence was also inconsistent
with the
charge sheet, which did not refer to multiple incidents. I shall
return to this count at the end of my judgment, when
I assess all the
evidence.
[155]
Count 6 is the second count of rape, which is alleged to have
happened in January 2000. Here, the complainant’s evidence
was
much more specific. I need not recount it. It is notable that in this
instance she was able to give the exact time when it
happened, at
16h30 after work. She testified that the following day, she told
Mr Van Staden that if she was asked to work
after hours, he
should also stay on, because the appellant had touched her legs.
Neither he, nor she, said anything further. This
evidence was
inconsistent with Mr Van Staden’s testimony, to which I shall
return. Suffice to say, at this stage, that the
magistrate did not
deal with any of these charges in his judgment, or explain why he had
found the appellant guilty.
The
Period May 1998 to December 1999
[156]
Counts 1, 2 and 4, all relating to indecent assault are alleged to
have occurred during the period from August 1998 until
December 1999.
The allegation that there was a rape – the first one –
during the period January to March 1999 at Loftus
Versveld Stadium is
the subject of count 3, which has received considerable attention in
all the judgments. I shall deal first
with the indecent assault
charges.
[157]
Count 1 alleged that in August 1998 that the appellant loosened the
complaint’s trousers and rubbed/or groped her vagina.
Count 2,
alleged to have taken place between August and September 1998, is
when he allegedly reached inside her blouse, groped
her breast and
made pelvic movements against her body. Count 4 is alleged to have
occurred over a period of ten months between
March and December 1999,
when he groped her breasts and/or rubbed her vagina and/or groped it.
[158]
In regard to count 1 she testified that in August 1998, the appellant
called her into his office, closed the door, grabbed
her and started
touching her. He unbuttoned her trousers, put his hand inside her
underwear, and fondled her vagina.                      She

managed to pull away, opened the door and returned to her desk. She
could not remember the time of the day when this happened,
but it was
during office hours.
[159]
When asked during her examination in chief why she had not reported
this to anyone she gave various reasons. These included
that she was
‘scared and terrified’ as she had been there for a short
period, that reporting sexual harassment or rape
would be frowned
upon in her culture, that she feared her husband would leave her, and
also because the environment in which she
worked was dominated by
Afrikaner males, which made reporting such conduct difficult. Her
evidence in this regard was not confined
to count 1, but was also
proffered as the reason for not reporting the other incidents
earlier.
[160]
There is nothing implausible about a woman, who has been sexually
abused, being reluctant to report it. This is because the
victim
often feels a sense of shame and guilt at what has happened.
Nonetheless, when she provides an explanation for not reporting
the
abuse, her version must still be subjected to scrutiny to avoid any
injustice that may result from a false claim of abuse.
[161]
There were two serious inconsistencies in her version. First, she
testified that she had reported the ‘sexual harassment’

to Mr Langner, the appellant’s supervisor, immediately after
the rape in count 3, which is dealt with below. Mr Langner
was
the most senior person in the organisation; on her version he was
hardly her first port of call, in a male dominated environment.

Secondly, she testified that she reported another instance of sexual
harassment to her colleague, Mr Van Staden, after the alleged
rape in
count 6, when she told him that the appellant had touched her legs.
He is also an Afrikaner male, who was her friend with
whom she
discussed her marital problems. She testified that she did not report
the abuse to him because she did not fully trust
him. But this is
also inconsistent with her reporting that the appellant had allegedly
touched her legs, which she also considered
was sexual harassment, as
is evident from her pleadings in the civil proceedings. These
inconsistencies cannot be wished away,
as the magistrate did, and as,
with respect, the first judgment also does.
[162]
On count 2, the complainant testified that the appellant called her
into his office between August and December 1998, to give
her a hug
for the good work she was doing. He reached out from behind her, put
his hand inside her blouse, touched her breast inside
her bra, and
simulated sex by moving his pelvis against her.           She
told
him to stop, and again managed to pull away and returned to her
office.      In December she went on leave.
[163]
Under cross-examination, she testified that she had been indecently
assaulted on only one occasion during this period, contrary
to her
evidence in chief. This was when the appellant called her into his
office, unbuttoned her blouse, and touched her breasts.
This version
too was inconsistent with her evidence in chief, where she did not
mention that he had unbuttoned her blouse. She
did, however, repeat
that he made movements with his pelvis against her. The incident, she
said, also happened during office hours.
[164]
On Count 4 she testified that there were numerous occasions between
March and December 2009 – a period spanning ten
months –
when he called her into his office and would either touch her on her
breasts or her vagina. However, under cross-examination
she changed
her version, saying that she was only sexually harassed from August
to December 1999. And when questioned further,
changed her version
again by saying this happened between June and December 1999. Of
these dates, she said, she was certain. And
further, when it was put
to her that her original version was that this happened between March
and December 1999, she again adjusted
her evidence to these dates.
Once again, when asked why she specifically remembered that there was
an incident in August 1999,
she responded, quite implausibly, that
this was because it was the ‘first incident’. Pressed
even further, she adjusted
her evidence again, saying the first
incident was in August 1998.
[165]
It is apparent from an analysis of her evidence regarding the first
three incidents of indecent assault that her evidence
was unreliable:
For the period from August to December 1998, the appellant faced two
counts of indecent assault, which she also
testified to in chief, but
under cross-examination said there was only one, count 2. There
was therefore no basis to convict
the appellant on count 1. In regard
to count 4 her evidence was vague, inconsistent, and contradictory.
When confronted with the
inconsistencies, she simply made up her
answers. There was, I accept, nothing implausible about her evidence
on count 2, despite
her having only mentioned the unbuttoning of her
blouse under cross-examination. But in the face of her other
unreliable and uncorroborated
evidence, there is simply no basis to
reject the appellant’s disavowal of guilt on these charges. The
magistrate did not
deal with any of the evidence pertaining to these
indecent assault charges. The appellant should therefore have been
acquitted
on these charges as well.
[166]
This brings me to count 3, the Loftus Versveld incident. The alleged
assault is fully described in the first judgment and
need not be
repeated. On her account this was a brutal rape that left her
seriously injured. It is not in dispute that the complainant

accompanied the appellant to Loftus Versveld. The circumstances that
led to the alleged rape, the year and month when this occurred,

whether she was raped and what transpired afterwards were all in
dispute. A close examination of the evidence does not justify
the
conviction.
[167]
The year and month when the incident happened is important because of
what happened thereafter. The complainant commenced
her employment
with the appellant in May 1998. Among her duties was to manage the
appellant’s diary, which, she appears to
have done competently.
Her evidence was that the Loftus incident happened between January
and March 1999, during the morning.                She

recalled that it was after she had returned from the December
vacation, in January. After he had raped her, they returned to the

office. He then left.
[168]
There was a dispute whether they travelled in one or two cars.
The

complainant and Mr Van Staden said they travelled in one car. The
appellant said they went in two cars and Mr Van Coller confirmed
that
they arrived and departed in two cars. The magistrate rejected the
appellant’s version on this aspect on the ground
that it is
unlikely that the complainant would have told him, so soon after she
commenced her employment, that she wished to travel
in two cars
because her husband was jealous a person.
[169]
The magistrate was entitled to be sceptical of the appellant’s
testimony on this aspect. But he could not reject it
as implausible.
His evidence was supported by Mr Van Coller, which the
magistrate ignored. Importantly, it was also apparent
that the
complainant was having marital problems at the time, which lends
support to the appellant’s version. Ultimately,
this is a
collateral issue and is not decisive.
[170]
The appellant’s evidence was that they went to Loftus Versveld
in May 1998, shortly after she had commenced her employment.
The
trip, he said, was part of her induction, as this was where they
entertained their customers. The date was diarised. Afterwards,
they
drove to the Air force base at Waterkloof, before returning to their
office. At Waterkloof the appellant introduced her to
Mr Van Coller,
who reported to him, and explained the nature of Mr Van Coller’s
work to her. Mr Van Coller confirmed the
visit, at about midday, and
testified that the appellant told him that they had just visited the
place at Loftus Versveld. He also
introduced the complainant to his
staff. Mr Van Coller’s observation was that she seemed nice and
was very friendly. The
appellant and complainant then returned to
their offices.
[171]
The complainant’s evidence, as I have mentioned, was that the
Loftus incident happened between January and March 1999.
She was
absolutely clear of two things: that this happened after the December
vacation in 1998, and that there were two incidents
of sexual
harassment that preceded it (counts 1 and 2). But I have already
found that the complainant materially contradicted herself
as to
whether there were one or two incidents of indecent assault preceding
the rape. More importantly, I find it improbable that
she would have
been mistaken about this, even though it happened a long time ago.
[172]
I also find it difficult to believe that she was unable to remember
the date of the Loftus incident with more certainty; she
put it at
between January and March 1999. But it was, on her version, a brutal
act of sexual violence, the first she had experienced,
and that had
caused her considerable trauma. She kept the appellant’s diary
and would have been aware of the important dates.
When exactly the
incident took place is not something that she would likely forget.
And given the material dispute about the date,
one would have
expected the State to investigate this more closely, rather than
relying on her uncertain recollection of the dates.
[173]
Given her complete inability to remember the date, there is simply no
room in the evidence to reject the appellant’s
version that the
trip to Loftus Versveld took place in May 1998, during the
complainant’s induction. And there was no basis
to simply
ignore Mr Van Coller’s evidence. Mr Van Staden, who testified
on the complainant’s behalf, also confirmed
that the trip to
Loftus happened in 1998.           In
other words, three witnesses
put the Loftus incident at May 1998,
shortly after she commenced her employment. She stood alone on her
version. The problem extends
beyond a mere dispute about dates.
[174]
In addition, having just endured a brutal rape, it is also unlikely
that she would have been ‘nice and very friendly’
shortly
afterwards, as Mr Van Coller testified. His evidence, in this regard,
was also not disputed. Her evidence also does not
square with Mr Van
Staden’s evidence. He testified that he asked the complainant
the following day how the visit to Loftus
had gone, and she replied:
‘nogal mooi’ which, freely translated, means ‘actually
quite nice’. This response
also seems perversely
counterintuitive, and is inconsistent with her having endured a
traumatic event.
[175]
One of the reasons given by the majority in the court a quo for
rejecting Mr Van Coller’s evidence was that the

complainant was not cross-examined on the appellant’s version
that she was not taken to Mr Van Coller’s place after
the rape
but returned directly to her office. This is not correct. She was
asked pertinently under cross-examination whether she
went to his
office at Waterkloof after the Loftus incident. More significantly Mr
Van Coller’s evidence was not disputed
by the State.
[176]
Her testimony about what happened after this was also dubious. She
testified that after she returned to the office she phoned
the
appellant’s boss, Mr Langner, and complained that the appellant
was sexually harassing her. He said he would come back
to her, but he
never did. Apart from the fact that it is odd, though not inherently
improbable, that a rape victim would minimise
the description of the
offence, Mr Langner emphatically denied having received this
call from her. There is no reason to disbelieve
him.
[177]
The magistrate, however, rejected his evidence on the basis of Mr
Langner’s close relationship with the appellant, which
he
inferred from the fact that they had been on hunting trips together.
The magistrate may have been justified to approach Mr Langner’s

evidence with a degree of caution, because of this relationship.
But there
was
nothing improbable, much less inherently improbable, in his evidence.
There was no proper basis to reject it, or for finding
that Mr
Langner, who by all accounts, had a reputation for fairness, was
protecting the appellant.
[178]
Her version runs into other difficulties. She did not mention this
phone call to the investigating officer, which was a critical
bit of
information in any investigation involving sexual abuse. In the
disciplinary hearing, she testified, contrary to her evidence
in the
trial court, that she did not mention the incident to Mr Langner
because he would have done nothing about it. And finally,
Mr Van
Staden testified that she told him that the appellant had touched her
legs when they were getting into the car to go to
Loftus, about two
weeks after the Loftus incident. Her evidence, however, was that she
said this to him on the day after she was
raped in January 2000,
more than eighteen months later. These two versions are
irreconcilable, and again, cannot be dismissed
simply on the basis
that she may have been mistaken or confused about dates. The appeal
against the conviction on count 3 therefore
has to succeed
[179]
What remains is the evidence of Ms Trudie van der Westhuizen, the
complainant’s psychologist. It need not be dealt with
in any
detail. It was pointed out by the minority judgment in the court a
quo that the complainant reported the sexual assault
to her long
after the first incidents, including the one at Loftus, had occurred.
However it was also observed, in my view correctly,
that there were
various discrepancies in the versions of both witnesses. These are
set out in the minority judgment and need not
be repeated.
[26]
Apart
from these discrepancies, whatever the complainant said to her
psychologist does not amount to corroboration in respect of
the
charges against the appellant. If anything, it raises even more doubt
about the reliability and veracity of much of the complainant’s

evidence.
[180]
It emerged from Ms van der Westhuizen’s testimony that the
complainant suffered serious physical, emotional and violent
sexual
abuse by her husband.       This is why
the appellant first sought professional assistance,
in December 1998
and regularly thereafter. The abuse, it is common cause, led to their
separation and divorce between 1999 and
2000, during the period when
she alleged that much of the abuse by the appellant also occurred.
[181]
It is thus unclear why the complainant was comfortable to report her
husband’s abuse to Ms van der Westhuizen (if this
was frowned
upon in her culture as she testified), but not the alleged abuse by
the appellant. On the complainant’s version
she reported the
Loftus incident to Ms van der Westhuizen only a year later, in the
midst of her separation. It seems also reasonable
to infer, as the
minority judgment does, that the complainant was an emotionally
fragile person whose evidence had to be considered
with additional
caution.
[27]
[182]
The other evidence that raises some doubt regarding the complainant’s
version of these events is her evidence that all
of them, except the
Loftus incident, took place at their offices. Of these, count 6, the
rape charge in January 1999, was the only
one alleged to have
happened at 16h30, i.e., after work. The other ten, including the
three rapes, all happened during office hours.
I find it improbable
that the appellant would place himself at risk by merely closing the
door to his office and commit these crimes
– in particular
three rapes – while there were several members of staff at work
close to his office.
Conclusion
[183]
The appellant had to defend himself against multiple charges of
sexual crimes alleged to have taken place over a four-year
period.
The charges were framed vaguely and lacked specificity both as to the
nature of the acts and the times when they were committed.
The
difficulty in having to defend himself was manifest.
[184]
In
Bothma
v Els
[28]
the
Constitutional Court referred to a case from the Canadian Supreme
Court in
R
v Carosella
[29]
regarding
the difficulty that accused persons sometimes confront in gathering
rebuttal evidence to demonstrate their innocence in
sexual crimes. It
was precisely for this reason, said the court, that the State bears a
heavy onus to prove all the elements of
guilt beyond a reasonable
doubt.
[185]
The appellant denied his guilt and testified to his innocence. Where
he was able to, he led rebutting evidence, as in count
3 (the Loftus
incident), of Mr van Coller and Mr Langner. Their evidence, I have
pointed out could not be rejected. Their evidence
was corroborated.
The appellant’s version on two critical parts of the evidence –
when it happened and what happened
afterwards – was not
improbable, much less inherently improbable. It was reasonably
possibly true. The corollary was that
the complainant’s
version, which stood alone was not.
[186]
The State produced no evidence to corroborate her version of events
on the remaining 11 charges either. The trial court was
left with two
versions: hers and his. There was no basis to disbelieve him. Apart
from her evidence there was nothing to gainsay
his denial on each of
the charges. Yet his evidence too was rejected for no good reason.
And as the minority judgment pointed out,
again with respect
correctly, that the appellant’s evidence under
cross-examination in ascribing possible motives for the
accusations
against him did not justify its rejection.
[187]
Even more troubling was the approach of the magistrate in analysing
the evidence. Having taken the view on what is sometimes
referred to
loosely as the ‘totality of the evidence’ that the
complainant ‘may be telling truth’ he rejected
the
appellant’s evidence. Then, without any analysis of the
evidence on each specific count convicted him on 11 counts while

acquitting him only on count 12. As I have mentioned, his failure to
direct his mind to the reasons for that acquittal contributed
to his
erroneous approach to the evidence on the other charges. In my
respectful view, the majority judgment in the court a quo
and the
first judgment in this court repeat this error.
[188]
However as I have endeavoured to show in my treatment of the evidence
there were either no or insufficient grounds to convict
him on any of
the counts.                    In

summary, on count 12, her evidence was not only unreliable, but
untruthful.     And once the conviction
on this
charge is not sustainable, the appeal against the convictions on
counts 9 to 11 also had to succeed, for the reasons given
earlier,
and as was properly conceded by the State.
[189]
The fact that her evidence pertaining to those charges was so
unreliable, and in some instances obviously untruthful, was
further
reason to scrutinise her evidence on each of the other charges with
caution. On counts 5, 7 and 8, the indecent assault
charges, I have
pointed out the charges and the evidence were too vague for the
convictions to stand. On count 6, the rape that
allegedly took place
at 16h30 at the offices her evidence here was, by contrast, quite
specific. It could not be said that her
evidence on this charge was
implausible. But, it was also uncorroborated.            As

against this was the appellant’s denial of the incident that
could not be summarily rejected, as false. The State, therefore,
did
not discharge the onus upon it.
[190]
Counts 1, 2 and 4, the remaining indecent assault charges and
evidence were also lacking in specificity. In respect of counts
1 and
2 she contradicted herself as to whether there were one or two
incidents during this period. Here too, there was no basis
to prefer
her evidence against his.
[191]
The approach of the trial court, the majority in the court a quo, and
the first judgment in this court was to take a broad
view of the
evidence and conclude, somewhat intuitively, that because she was
telling the truth, he could not be, as if there was
an onus on him.
No attempt was made to investigate whether each count was proved or
not. If we test this by asking whether the
appellant would have been
convicted on 20 counts if so charged, the question would answer
itself.
[192]
The real question ultimately is whether the State discharged its
heavy onus on any of the counts with which the appellant
was charged.
It clearly did not.
[193]
In addition the appellant’s constitutional right to a
substantively fair trial was violated in this case. The trial
court
committed legal errors by: dealing with the evidence in a piecemeal
and compartmentalised way; improperly ignoring the material

contradictions and inconsistences in the complainant’s
evidence; ignoring important evidence that supported the appellant’s

defence; failing to have regard to the vagueness and lack of clarity
on the charges and considering the evidence on each charge
by
convicting the appellant on all counts on what it incorrectly
considered was ‘the totality of the evidence’ and,

irregularly failing to direct his mind to the reasons for his
judgment in terms of rule 67(5) Magistrates’ Court rules.
[194]
I would accordingly uphold the appeal on all counts.
__________________
A CACHALIA
JUDGE OF APPEAL
Mocumie
JA (Molemela JA and Poyo-Dlwati AJA concurring)
[195]
I have read both the majority and minority judgments. But regret that
I cannot agree with the approach to the evidence or
the conclusions
of the minority judgment. The minority judgment raises issues which
were not pertinently raised on appeal in the
submissions made before
us. Nor are they addressed in the heads of argument. My colleague
first raises an issue that the charges
lacked sufficient detail or
are broad and vague. Second, that the trial court did not analyse the
evidence in each count and give
reasons for the convictions but
rather gave broad findings. He also criticises the evidence of the
complainant as being riddled
with material inconsistencies.
The
majority judgment has
dealt with these issues in detail, I therefore
do not find it necessary to rehash those, suffice to say what I
mention hereafter.
What I disagree with is the minority judgment’s
approach where the trial court is criticised extensively for not
applying
its mind to the facts before it and on record.
[196]
First, the issue of vagueness of the charges preferred against the
appellant. The appellant did not complain about the vagueness
of the
charges. To the contrary as aptly observed in the majority judgment,
the appellant pleaded on all the counts without fail
and the
complainant was cross-examined at length on all. In the event that
there was any complaint, nothing stopped the defence
from asking for
further particulars before the trial commenced. Second, to object in
terms of s 85
(d)
of the CPA read with the relevant sections.
The accused, particularly a defended one, would be entitled to ask
for further particulars
from the State until the defect has been
cured. In this case, it is common cause, this readily available
avenue was not pursued.
Thus, it cannot be raised on appeal and
mero
motu
by the appeal court.          I
accept that the court of appeal cannot close its eyes
in the face of
injustice but in this case none was shown.
[197]
As is trite, a court of appeal will not readily interfere with the
factual findings of the trial court unless it is clear
f
rom
the record that the trial court had materially misdirected itself or
erred to the extent that its findings were vitiated and
fell to be
set aside.
[30]
My
colleague in the minority judgment has accepted in para 115 of his
judgment that the failure by the trial court to deal with
some
specific points is not in itself a ground to vitiate the proceedings.
[198]
I accept that a misdirection may arise where the trial court has
overlooked certain facts or when reasons given are on the
face of it
unsatisfactory or are not borne out by the record.
[31]
The
court of appeal may itself look at the evidence and come to its own
conclusion on the matter.
[32]
That
has however not been alleged in this case. Nonetheless, my assessment
of the evidence, having regard to the inadequacies raised
by my
colleague, the conclusions reached by the trial court were correct.
An important consideration is that while a trial court
should ensure
that all evidence is accounted for, it has been stated that ‘it
does not necessarily follow that because something
is not mentioned
it was not considered’.
[33]
[199]
Furthermore, a court of appeal
may
be
in as good a position as the trial judge to draw any inferences from
the evidence on record. It may
assess the evidence and come to its conclusion on the matter, which
may be the same as that reached by the trial court.
Additionally,
‘[a]n appellate court should not seek anxiously
to discover reasons adverse to the conclusions of the trial [court].
No judgment
can ever be perfect and all-embracing, and it does not
necessarily follow that, because something has not been mentioned,
therefore
it was not considered.’
[34]
While
the trial court may be criticised for its approach in not giving
reasons in respect of each count, any misdirection due to
the
unsatisfactory nature of the reasons given by the trial court is not,
in my view, a violation of the appellant’s constitutional
right
to a fair trial in s 35(3) of the Constitution in this case.
[200]
The respects in which specific counts were challenged, as stated in
the minority judgment were not mentioned in the grounds
of appeal or
argument.         The
majority judgment dealt with issues that were pointedly
raised on
appeal as grounds for this court to interfere with the trial court’s
decision.  In
S
v Sefatsa and Others
[35]
this
Court observed:
‘
It
is generally accepted that leave to appeal can validly be restricted
to certain specified grounds of appeal
. . . In practice this is frequently a convenient and commendable
course to adopt, especially in long cases, in order to separate
the
wheat from the chaff. On the other hand, this Court will not
necessarily consider itself bound by the grounds upon which leave
has
been granted.            If
this Court is of the view that in a ground
of appeal not covered by
the terms of the leave granted there is sufficient merit to warrant
the consideration of it, it will allow
such a ground
to
be argued
.
’
(Emphasis
added.)
[201]
Regarding the evaluation of evidence by the trial court, the minority
judgment, faults the trial court in its approach. He
states that
‘[f]irst, it illogically approached its task in a
“compartmentalised and fragmented” way. . .Secondly
. . .
it paid no heed to this court’s injunction regarding the
process of reasoning applicable to the proper test in a criminal

trial. . .’. In reassessing the complainant’s evidence,
my colleague is of the view that the complainant’s evidence

lacked credibility all together. He found no fault with that of the
appellant and his witnesses.
[202]
It is trite that it is not for the accused to prove anything, but for
the State to prove its case beyond reasonable doubt.
However,
the correct approach as is also established is:
‘
[T]o
weigh up all the elements which point towards the guilt of the
accused against all those which are indicative of his innocence,
taking
proper account of inherent strengths and weaknesses, probabilities
and improbabilities on both sides and, having done so,
to decide
whether the balance weighs so heavily in favour of the State as
to exclude any reasonable doubt about the accused's
guilt
.
The result may prove that one scrap of evidence or one defect in
the case for either party. . . was decisive but. . . a trial
court
(and counsel) should avoid the temptation to latch on to one
(apparently) obvious aspect without assessing it in the context
of
the full picture presented in evidence. Once that approach is applied
to the evidence in the present matter the solution becomes

clear.’
[36]
(Emphasis
added.)
[203]
I turn now to my observations on some of the specific issues raised
by my colleague in the minority judgment. My colleague
considers that
the complainant’s evidence is marred by improbabilities,
inconsistencies and even untruthful accounts because
she mixed up the
incidents between rape and sexual assault and the dates in which
those occurred. She detailed or referred interchangeably
to sexual
harassment, rape, indecent assault and groping. He further finds it
improbable that these incidents could have happened
during office
hours when other employees were in the offices adjacent to the
appellant’s office where most of the incidents
took place; and
even more improbable that she could forget whether it was rape or
groping that occurred first or last in one of
the incidents.
[204]
The trial court noted inconsistencies and contradictions in the
evidence of the complainant. It took into account the fact
that she
testified about incidents that took place over a period of four years
when she had just started working directly under
the appellant and
that she was subjected to consistent and frequent abuse a few months
after she started working for him. She suffered
from depression and
unhealthy weight loss which were worsened by the abuse she
encountered from the appellant.
[205]
The dynamics of the power relations between the appellant and the
complainant are an important consideration. The atmosphere
of white
Afrikaner male domination, according to her, prevailed within her
work environment during that particular period. The
appellant who was
in charge as the COO, was feared.   The fact that she
reported an act of sexual harassment to two white
Afrikaner men, Mr
van Staden a colleague and Mr Langner, the supervisor at some stage,
did not show inconsistency. She was embarrassed
by the rapes hence
she minimised the incidents in her reports to them. She however took
a chance as she hoped the abuse would stop,
first by Mr Langner
talking to the appellant and second by Mr van Staden staying over if
she got to be asked to work overtime again
by the appellant.
Reporting to medical professionals, Professor Spies and her
psychologist, Ms van der Westhuizen
,
inconclusively
confirmed that she had been subjected to sexual abuse. All these
aspects judged objectively and dispassionately,
lend support to what
she maintained happened for over four years.
[206]
In para 127 of the minority judgment my colleague states that the
response the complainant gave on the inconsistency in her
evidence as
regards the date of the last incident, that when she testified in
chief it was much easier because she ‘took
it from the
beginning and it was much easier to go from the start right up to the
end’, ‘. . . revealed that she had
rehearsed her version
before giving her testimony’. This may be an unfair assumption.
If her evidence was indeed rehearsed,
one would expect that there
should be no inconsistency or inconsistencies that are evident in her
evidence.
[207]
To the contrary, these are explicable inconsistencies. This witness
had been through different enquiries and had to relate
the events
years after they had occurred. She was subjected to continuous,
traumatising events. To impute impropriety on her part
because of
muddling the dates and events in relation to the last incident and
because of the way the evidence was led in a disciplinary
hearing
without the benefit of the record, is unfair. In the trial court, the
responsibility of the defence lawyer was to put the
version of the
appellant on each and every allegation that the complainant levelled
against the appellant and he did so. The task
of the trial court was
to look at all the evidence presented on both sides including what
emerged during cross examination and
dispassionately weigh each
against the other to establish whether the truth had been told.
[37]
[208]
At para 138 my colleague states that ‘[o]nce it is accepted
that count 12 was not proved, for the reasons stated earlier,
counts
9, 10 and 11 also had to fall through a domino effect. . .’. I
do not agree with this approach if one considers
the
evidence led for that period in respect of each count. Except for
count 12 for which he was acquitted, there was no confusion
or
material discrepancies in respect of counts 9 to 11. As to the effect
of her confusion in respect of count 9 and 12, the majority
judgment
above deals efficiently with this view and I support the reasoning.
[209]
At para 192 the minority judgment states that ‘[t]he real
question ultimately is whether the State discharged its
heavy
onus
on any of the counts with which the appellant was charged. It clearly
did not. . .’. (Emphasis added.) It is trite that the
State
must prove its case beyond reasonable doubt. But it is not expected
to close all avenues;
[38]
particularly
where the defence is a bare denial. The ultimate responsibility lies
with the trial court and courts of appeal to discern
whether the
State has discharged this responsibility with what it has before it
and dependent on the truthfulness and reliability
of the witnesses in
assisting it to do so.
[210]
In
S
and Another v S
[39]
this
Court reflected as follows with respect to the proverbial question
posed in criminal cases in all courts: Where does one draw
a line
between proof beyond reasonable doubt and proof on a balance of
probabilities?        It
stated:
‘
The
approach of our law as represented by
R
v Mlambo, supra
,
[40]
corresponds
with that of the English Courts. In
Miller
v Minister of Pensions
[1947]
2 All ER 372
(King’s Bench) it was said at 373H by Denning
J:
“
(T)he
evidence must reach the same degree of cogency as is required in a
criminal case before an accused person is found guilty.
That degree
is well settled.
It
need not reach certainty, but it must carry a high degree of
probability. Proof beyond reasonable doubt does not mean proof beyond

the shadow of a doubt. The law would fail to protect the community if
it admitted fanciful possibilities to deflect the cause of
justice.
If the evidence is so strong against a man as to leave only a remote
possibility in his favour, which can be dismissed with the
sentence
“of course it is possible, but not in the least probable”,
the case is proved beyond reasonable doubt, but
nothing short of that
will suffice.”’ (Emphasis added.)
[211]
The question is what weight to accord the inconsistencies noted
especially in the face of a bare denial. I do not agree with
the
minority judgment that the inconsistencies all had ‘to fall
through a domino effect’. Some were not material. Others
such
as the mentioning of sexual harassment, rape and touching
inappropriately/groping, interchangeably and the mixing up of dates

by the complainant, appeared to be a clear misunderstanding which
arose, amongst others, as a result of how questions were put
to her
by the defence counsel. These appeared to have thrown her off balance
from time to time. She indicated at some point during

cross-examination that when she testified in chief she was able to
start the evidence from the beginning to the end, as she clearly

anticipated. Overall, despite the stated inconsistencies, the
complainant’s account was logical and detailed. She explained

why she could not report the incidents as they occurred and why it
took her that long to report these deeds. My colleague’s

criticism on the discrepancies seemed not to attach sufficient weight
to the trauma that was caused by these events. According
to the
complainant the trauma she encountered affected her recounting of the
dates and sequence of events. I consider it unfair
to expect the
complainant to remember exact dates, on the basis that she kept the
appellant’s diary, as my colleague pointed
out. The suggestion
that she was subjected to abuse at her home at the hands of her
husband and hence her fragility should not
cloud the assessment of
whether she was sexually abused by the appellant. According to
Professor Spies who testified without contradiction,
there was a vast
difference between sexual trauma in a marriage and outside of the
marriage. She opined that ‘if there was
any sexual trauma in
the marriage, the complainant could escape the sexual trauma by
moving to her mother; but she could not afford
to lose her job. . .’
(Translated).
[212]
I now turn to deal with issues highlighted in the minority judgment
in respect of each count. No inconsistency is identified
by my
colleague as to how her evidence in count 1 could be faulted except
that she had at one point in cross examination stated
that there was
only one incident between August and December 1998, accordingly he
ought not to have been convicted on count 1.
The majority judgment
has dealt with this issue and I agree with its clarification of the
evidence in this regard.
[213]
In respect of count 2 my colleague says he accepts there was nothing
implausible about the complainant’s evidence except
that she
did not mention the unbuttoning of the blouse in her evidence
in-chief.  Her evidence in relation to this count was
that he
inserted his hand inside her blouse. Surely the omission of ‘the
unbuttoning of the blouse’ in her evidence-
in- chief is a
minor detail which she explained that she forgot to mention. In order
for him to insert his hand inside her blouse,
it is not implausible
that he would have to have done so after having unbuttoned her
blouse. That makes perfect sense.
[214]
The majority judgment deals with the inconsistencies raised as
regards count 3 which relates to the Loftus suite. It is not

necessary to add anything further.             As
regards count 4,
it is correct that there was a discrepancy with
regards to the dates. The complainant initially testified that the
sexual assault
occurred between March and December 1999 but later
stated it was between August and December 1999 in cross-examination
and then
between June and December 1999. In this regard she stated
that she had a problem with the dates and had made a mistake. She
further
testified that she did not mean that sexual assaults took
place every month but they had occurred during that period.
[215]
The charge sheet and evidence relating to counts 5, 7 and 8 is said
to be vague. The evidence in relation to these charges
is similar.
The complainant testified that the appellant would use the same
tactics of touching her breasts and/or vagina.           In

respect of count 5, it is stated in the minority judgment that the
charge sheet did not say anything about groping of breasts to
which
she also testified. However, the evidence of the complainant was that
the appellant would either fondle her breasts or touch
her private
parts. The fact that fondling of breasts is not mentioned in the
charge sheet does not discount the charge as she mentioned
that he
also touched her vagina, which is contained in the charge sheet.
[216]
In relation to count 7, my colleague states that the complainant did
not present evidence in-chief. The complainant as the
record shows,
mentioned that the appellant would touch her as before and repeated
the same evidence in cross examination. The majority
deals with this
at length.
[217]
As regards count 8, the criticism is that reference to the incidents
of sexual assaults occurring ‘multiple times’
is missing,
whereas in her evidence the complainant stated that the incidents
occurred ‘often’ in that period. The
charge sheet refers
to a period. It does not say how many times the sexual assaults
occurred during that period nor does the complainant
say so in her
evidence. ‘During the period’ mentioned in the charge
sheet, should in my view, cover her entire evidence
in respect of
count 8 when she says, the incidents were a lot more or often.
[218]
As regards count 6 of rape, detailed evidence was given in respect of
this charge. It is not strange why the complainant would
remember a
specific time when in other instances she could not. She testified
that she knocked off at 16:15.              The

appellant told her that he needed to finish an urgent presentation
and she went to his office at approximately 16:30. This time
almost
coincided with her knock-off time hence it should not strike as a
surprise that she remembered it. It is not clear why her
evidence in
respect of this charge could not be accepted.
[219]
She testified that she told Mr van Staden about being touched above
the leg. According to her evidence this was because she
was
embarrassed and could not tell him about the rape and did not trust
him completely as already mentioned in both judgments.
The fact that
she did not tell him about the rape, does not make her evidence in
relation to count 6 untruthful. She stated why
she did not tell him.
As to whether or not the touching of the leg in fact had happened,
she stated that on one occasion the appellant
had touched her leg (ie
when they were in the vehicle to Waterkloof). It is therefore not
entirely correct that her version was
that her leg was never touched.
Yes, the appellant was not charged for that. According to the
complainant she regarded this as
a minor issue which she did not
mention to the police in a statement.
[220]
I agree with the majority judgment that the State proved its case
beyond reasonable doubt in respect of all counts; that the
trial
court and the majority of the full court were correct for the reasons
advanced; and that the appeal should be dismissed.
B
C MOCUMIE
JUDGE
OF APPEAL
APPEARANCES:
For
appellant:        J J
Strijdom
Instructed
by:        Rianie Strijdom
Attorney, Pretoria
Symington
De Kock Attorneys, Bloemfontein
For
respondent:     C Pruis
Instructed
by:        Director of Public
Prosecutions, Pretoria
Director
of Public Prosecutions, Bloemfontein.
[1]
S
v Jackson
1998
(4) BCLR 424 (A); [1998] 2 All SA 267 (A) at 272-273.
[2]
S v
Jackson
fn 1 at 274.
[3]
Zulu v The State
[2019]
ZASCA 189
para 21.
[4]
Y
v S
[2020]
ZASCA 42
paras 71-72.
[5]
S v V
2000
(1) SACR 453
(SCA)
para 3.
[6]
S v
Chabalala
2003
(1) SACR 134
(SCA)
para 15.
[7]
R v Mlambo
[1957]
4 All SA 326 (A);
1957
(4) SA 727
(A)
at 738A-C. See also
S
v Sauls and Others
[1981]
4 All SA 182
(A);
1981
(3) SA 172
(A)
at 182G-H.
[8]
S v
Jackson
fn
1 at 271.
[9]
J
Hopper and D Lisak
Why
Rape and Trauma Survivors have Fragmented and Incomplete
Memories
Time
Magazine (2014)
,
which was cited
with
approval in the minority judgment of
Y
v S
fn
4 para
90.
[10]
R v Gumede
1949 (3) SA
749
(A) at 756 and
S
v Mokonto
[1971] 2 All SA 530
(A);
1971 (2) SA 319
(A) at 322-323.
[11]
Van
Zijl
v Hoogenhout
[2004]
4 All SA 427
(SCA);
2005
(2) SA 93
(SCA)
para
11
.
Quoted from: D
Finkelhor
and A Browne ‘
The
Traumatic Impact of Child Sexual Abuse: A Conceptualisation’
(1985) 55(4)
American
Journal of Orthopsychiatry
at 530.
See
also
S
v Jackson
fn 1 at 272-273.
[12]
See
also
S
v
Cornick
and
Another
[2007] ZASCA 14
;
[2007] 2 All SA 447
(SCA);
2007 (2) SACR 115
(SCA)
the
delay in reporting a rape was not considered to have any bearing on
a complainant’s credibility, albeit a child offender. See

also
Mocumi
v The State
[2015] ZASCA 201
para 24.
[13]
T
ranslated
from Afrikaans:
‘
Yes,
if the door was closed? - Well, the possibility exists that if the
complainant testified that it happened then it is what
she testified
before.
Then
no one would have seen that? -Well, if the door is closed, then no
one can see. . . .’
[14]
According to A Kruger
Hiemstra’s
Criminal Procedure
(Electronic version 2020) at 14-10: ‘
The
significance of the omission of the time of the offence depends on
the extent to which time is essential to the charge. Where
the
charge was evasion of tax, the mention of time periods was regarded
as essential (
R v Toiling
1994
OPD 132
,
R v Matswele
1940
TPD 345).
Time is an essential ingredient if the act is not an
offence unless it occurred at a certain time, as would be the case
of hunting
at night with a lamp. At first blush the provision
appears to be in conflict with section 84   which
requires
that the charge must mention the time at which the offence
was committed. This provision means that even when section 84

is not taken into account on this point the charge is still in order
as long as the time is not essential to the offence. In
any event,
time can still be added afterwards by virtue of section 86’.
[15]
‘
84.   Essentials
of charge.
—(1)  Subject
to the provisions of this Act and of any other law relating to any
particular offence, a charge
shall set forth the relevant offence in
such manner and with such particulars as to the time and place at
which the offence is
alleged to have been committed and the person,
if any, against whom and the property, if any, in respect of which
the offence
is alleged to have been committed, as may be reasonably
sufficient to inform the accused of the nature of the charge.
(2)  Where any of the
particulars referred to in
subsection
(1)
are
unknown to the prosecutor it shall be sufficient to state that fact
in the charge.
(3)  In
criminal proceedings the description of any statutory offence in the
words of the law creating the offence,
or in similar words, shall be
sufficient.
’
[16]
‘
35.
Arrested,
detained and accused persons
.
. .
(3)
Every accused person has a right to a fair trial, which includes the
right—
(a)
to
be informed of the charge with sufficient detail to answer it.’
[17]
Bothma v
Els and Others
[2009]
ZACC 27
;
2010 (2) SA 622
(CC) para 81.
[18]
D Harms
Civil
Procedure in the Superior
Courts
at C 1.26;
Westinghouse
Brake and Equipment (Pty) Ltd v Bilger Engineering (Pty) Ltd
1986
(2) SA 555 (A).
[19]
Sections
set out in fns 15 and 16 above provide as follows:
‘
84.
Essentials of charge
(1)
Subject to the provisions of this Act and of any other law relating
to any particular offence, a charge shall set forth the
relevant
offence in such manner and with such particulars as to the time and
place at which the offence is alleged to have been
committed and the
person, if any, against whom and the property, if any, in respect of
which the offence is alleged to have been
committed, as may be
reasonably sufficient to inform the accused of the nature of the
charge.’
‘
35.
Arrested,
detained and accused persons
.
. .
(3)
Every accused person has a right to a fair trial, which includes the
right—
(a)
to
be informed of the charge with sufficient detail to answer it’.
[20]
A Kruger
Hiemstra’s
Criminal Procedure
(Electronic version, 2020) at 14-9.
[21]
Section 83
provides:
‘
If
by reason of any uncertainty as to the facts which can be proved or
if for any other reason it is doubtful which of several
offences is
constituted by the facts which can be proved, the accused may be
charged with the commission of all or any of such
offences, and any
number of such charges may be tried at once, or the accused may be
charged in the alternative with the commission
of any number of such
offences.’
[22]
The judgment
erroneously refers to inherited probabilities and not inherent
improbabilities.
[23]
S v
Trainor
2003
(1) SACR 35 (SCA).
[24]
State v
Van Aswegen
2001
(2) SACR 97
(SCA) para 8 quoting
State
v Van Der Meyden
1999
(2) SA 79
(W)          82C-E
with approval.
[25]
A Kruger
Hiemstra’s
Criminal Procedure
(Electronic version, 2020) at 24-1. Hiemstra observes that in its
very first judgment in
S
v Zuma
and
Others
[1995] ZACC 1
;
1995 (2) SA 642
(CC) para 16, the Constitutional Court held that the
constitutional right to a fair trial embraced ‘a concept of
substantive
fairness’ that required criminal trials to be
conducted in accordance with ‘notions of basic fairness and
justice’.
It elaborated on this in
S
v Dzukuda; S v Tshilo
2000
(4) SA 1078
(CC) para 11 as follows: ‘At the heart of the
right to a fair criminal trial and what infuses its purpose, is for

justice to be done and also to be seen to be done. But the concept
of justice itself is a broad and protean concept.          In

considering what, for purposes of this case, lies at the heart of a
fair trial in the field of criminal justice, one should bear
in mind
that dignity, freedom and equality are the foundational values of
our Constitution. An important aim of the right
to a fair
criminal trial is to ensure adequately that innocent people are not
wrongly convicted, because of the adverse effects
which a wrong
conviction has on the liberty, and dignity (and possibly other)
interests of the accused.’
[26]
Judgment of
the High Court para 73.3.
[27]
Judgment of
the High Court para 76.
[28]
Bothma v
Els
2010
(2) SA 622
(CC) para 81.
[29]
R v
Carosella
[1977]
1 S.C.R 80
para 105.
[30]
Mnyandu
v Padayachi
[2016] 4 All SA 110
(KZP);
2017 (1) SA 151
(KZP) para 28;
Rex
v Dhlumayo
1948
(2) SA 677
AD at 698.
[31]
Rex v
Dhlumayo
fn 30 at 698.
[32]
Ibid at 703.
[33]
Mahlangu
and Another v S
[2011] ZASCA 64
;
2011 (2) SACR 164
(SCA) para 23.
[34]
Rex v
Dhlumayo
fn
30 para 706.
[35]
S v
Sefatsa
1988(1)
SA 868 (A) at 877A-E.
[36]
S v
Chabalala
2003 (1) SACR 134
(SCA) para 15.
[37]
S v Sauls
and Another
[1981]
4 All SA 182
(A);
1981
(3) SA 172
(A) at 180F-180G.
[38]
R v Mlambo
fn 7 at 337.
[39]
S and
Another v S
[2014]
ZASCA 215.
[40]
R v Mlambo
fn 7.