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[2010] ZASCA 84
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S v Smit (144/08) [2010] ZASCA 84; 2010 (2) SACR 467 (SCA) (31 May 2010)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no:
144/08
In the matter between:
GERHARD
SMIT
Appellant
and
THE STATE
Respondent
Neutral
citation:
G
Smit v The State
(144/08)
[2010] ZASCA 84
(31 May 2010)
Coram:
MTHIYANE,
VAN HEERDEN, PONNAN, MHLANTLA and LEACH JJA
Heard: 19 May 2010
Delivered:
31
May 2010
Summary:
Criminal
law – rape and attempted rape - evidence – assessment of
– complainant’s evidence lacking credibility
-
convictions of rape and attempted rape set aside.
______________________________________________________________
ORDER
______________________________________________________________
On appeal from:
North
Gauteng High Court (Pretoria) (Seriti J and Ramagaga AJ sitting as
court of appeal):
1.
Leave to appeal is granted and the appeal is enrolled.
2.
The appeal is upheld, and the order of the high court is set aside
and substituted with the following:
‘(a)
The appeal is upheld.
(b)
The appellant’s convictions and sentences are set aside.’
______________________________________________________________
JUDGMENT
______________________________________________________________
LEACH (MTHIYANE, VAN HEERDEN, PONNAN
and MHLANTLA concurring)
[1]
On 24 February 2005, Gerhard Smit of Pretoria ( ‘the
appellant’), was convicted in a regional court on a count of
attempted rape and a further count of rape for which he was,
respectively, sentenced to three years’ and ten years’
imprisonment, such sentences to run concurrently. A subsequent
application on his behalf to lead further evidence as well as an
application for leave to appeal was refused by the trial magistrate.
Subsequently, the appellant was granted leave to appeal by
the North
Gauteng High Court but on 6 August 2007 that court (Seriti J and
Ramagaga AJ) dismissed the appeal. A delay then ensued,
largely as a
result of various financial and logistical difficulties that are not
necessary to detail on the part the appellant
in lodging his
application with the High Court, for leave to appeal to this court.
On 12 February 2009 the High Court dismissed
that application. The
appellant then applied to this court for leave to appeal and to
adduce further evidence in terms of
s 309
of the
Criminal Procedure
Act 51 of 1977
. On 25 February 2009 this court issued the following
order:
‘
The
application for leave to appeal and to adduce further evidence is
referred for oral evidence in terms of s 21(3)(c)(ii) of the
Supreme
Court Act 59 of 1959.
The
parties must be prepared if called upon to do so, to address the
court on the merits of the conviction and sentence.
’
[2] Because the
success or otherwise of the application for leave to appeal depends
on the prospects of eventual success of the
appeal itself, the
argument on the application had to address the merits of the appeal.
For this reason the parties were requested
to argue the appeal as if
the application for leave to appeal had been granted. (See
S
v Boesak
[2000] ZASCA 112
;
2000 (1) SACR 633
(SCA) paras 10, 11 and 12.)
[3
]
The charges against the appellant arose out of events which
occurred at his home in Pretoria during the night of 3 to 4 September
2003. Both the charge of attempted rape (count 1) and that of rape
(count 2) involved the same complainant, a 16 year old school
girl,
who was at the time living with the appellant’s family. The
appellant used an outside room described in the evidence
as a ‘Wendy
house’ as his bedroom while the complainant shared a bedroom in
the main house with the appellant’s
sister, Jolindi, and his 11
year old brother. His mother and her partner slept in an adjoining
bedroom. The State alleged that
the appellant had unsuccessfully
attempted to rape the complainant in the Wendy house and, some time
later, had succeeded in doing
so in the bedroom that she shared with
his two siblings.
[
4]
The appellant denied his guilt. Although he admitted having had
intimate contact with the complainant in the Wendy house and
that he
had thereafter had sexual intercourse with her in the bedroom, he
alleged that this had all taken place with her consent.
Unfortunately
for him, his version was rejected and he was convicted on both counts
as charged. As there is a material conflict
of fact, a resolution of
which involves the credibility of the witnesses, it is necessary to
deal with the evidence in some detail.
[
5]
At the time of the incident, the complainant was attending a
school in Pretoria. As her home was in Witbank it had been necessary
for her to board at the school but, for reasons not disclosed in the
evidence, there had been a problem at the school and she was
required
by the school to leave the boarding house. Her teacher, a Mr Bruwer,
had a son who was at the time romantically involved
with the
appellant’s sister, Jolindi, and this led to arrangements being
made for the complainant to board with Jolindi.
[
6]
On the night in question, although the complainant had already
prepared for bed, at Jolindi’s suggestion she slipped
a track
suit over her night clothes and the two of them went out at about 9
pm to purchase cold drinks. They ended up at the Bergsig
Hotel where
the appellant was playing pool with his friends. Although the
complainant had lived with Jolindi’s family for
a few weeks,
she claimed not to know the appellant who was much older than her. It
is common cause that despite it having been
a school night, the
complainant and Jolindi spent several hours playing pool with the
appellant and his friends and only left the
hotel in the early hours
of the next morning. They proceeded home in a motor vehicle driven by
Jolindi with the complainant and
the appellant seated in the rear and
one of his friends seated in the front passenger seat. After dropping
the friend at his home,
they went home.
[
7]
According to the complainant, when they arrived at the house the
appellant said he wanted to talk to her and asked her to
accompany
him to the Wendy house. She did so, but when they entered the room
the appellant closed the door, turned off the light
and asked her to
remove her clothes. When she refused to do so, he pushed her onto the
bed and again asked her to undress. She
told him that she was not
prepared to do so as she had a boyfriend and he had a pregnant
girlfriend. When she again refused, the
appellant proceeded to strip
down to his underpants, and again asked her to disrobe. When she
persisted in her refusal, he pulled
a blanket over them, fondled her
breasts and put his hand between her legs. However when he sat up,
apparently in order to play
some music, she was able to free herself
and flee to the main house. As she did so, she looked back and saw
the appellant, now
fully clothed, following close behind her. Once in
the main house, the appellant went to the sitting room to watch
television while
she went to the bedroom she shared with Jolindi and
the latter’s 11 year old brother. She alleged that when she
told Jolindi
what had happened, she was unsympathetic and told her it
had all been her own fault.
[
8]
The complainant alleged that she had then removed her track suit
and climbed onto her bed, but that she found it impossible
to sleep.
She was awake and lying on her stomach when she felt someone climbing
onto the bed, who pulled the panty she was wearing
to below her
buttocks and then had sexual intercourse with her by penetrating her
vagina from behind. She alleged that after penetration
had occurred
she looked around and saw that it was the appellant. She asked him
what he thought he was doing. He immediately climbed
off her and left
the room. She alleged that the next day she had informed her teacher,
Mr Bruwer, what had happened to her.
[
9]
The appellant told a materially different story. Although he
confirmed that the complainant and Jolindi had joined him and
his
friends in playing pool at the hotel, he alleged that she had flirted
outrageously with both his friends and him. She had repeatedly
squeezed his behind, had sat on his lap and had kissed him. He
alleged that while he and the complainant were seated in the rear
of
the vehicle on the way home, they engaged in heavy petting during
which he fondled her breasts and she fondled his private parts.
On
their arrival home, he suggested to her that they go to the Wendy
house, to which she willingly agreed. Once in his room, the
complainant removed her track suit and lay on the bed dressed in her
night clothes. He took off his pants and shirt and joined
her. They
petted intimately, during the course of which they fondled each
others private parts. But when he attempted to remove
her panty, she
said that they should rather go into the house. They dressed together
and when he asked whether he should bring
a condom with him, she
replied that it was unnecessary as she was using an oral
contraceptive.
[
10]
The appellant described how he and the complainant had then gone
to the main house where he sat in the sitting room while
the
complainant, after having said that she would call him when Jolindi
was asleep, went to her bedroom. She returned shortly thereafter,
bringing him a duvet. She sat on his lap and they kissed. The
complainant said that he should wait a few minutes before joining
her
in bed. She returned to the bedroom and, after a short while, he
joined her as she had said. They petted intimately for a while
before
he removed the complainant’s panty and they had consensual
sexual intercourse, during which he penetrated her vagina
from
behind. The act was brief, and the two of them then repaired to the
bathroom together to clean themselves. After the complainant
had
kissed him again, she returned to the bedroom while he went and slept
in the sitting room, something he commonly did. He did
not see the
complainant the next morning before she went to school and was
shocked to later hear that she alleged that he had raped
her.
[
11]
Before dealing with whether the appellant’s version was
correctly rejected as not being reasonably possibly true, I
should
interpose that there can be no doubt that the State’s case fell
far short of proving an attempted rape in the Wendy
house. The high
court never dealt with this issue and appears to have confirmed the
conviction on the count of attempted rape solely
because it was not
persuaded that the trial court had erred in accepting the
complainant’s version. However, while on the
complainant’s
version the appellant had intimately fondled her, he at no stage
attempted to have sexual intercourse with
her and, indeed, at all
times she had her panty on and the appellant had never removed his
underwear. At best for the State, the
appellant may have been guilty
of indecent assault but he certainly did not attempt to insert his
penis into the complainant’s
vagina. That being so, even on
the State’s case considered in isolation, the appellant’s
actions in the Wendy house
cannot be construed as an attempt at rape
and in this court counsel for the State correctly conceded that the
conviction on this
count cannot stand.
[
12]
But the more important issue is whether both the trial court and
the high court erred in accepting the version of the complainant
as
true beyond a reasonable doubt and rejecting that of the appellant as
being inherently improbable. The rejection of the appellant’s
version as inherently improbable was based primarily on two issues.
First, that if the complainant had wanted to have sexual intercourse
with the appellant, she would have done so when they had the
opportunity of doing so in private in the Wendy house (and it was
thus inherently improbable that she would have suggested to the
appellant that they should go to the main house for that purpose)
and, second, that the complainant would have suggested having sexual
intercourse in a bedroom which she shared with two other people.
[1
3]
The allegation that the appellant and the complainant did not
avail themselves of the opportunity to have sex in the Wendy
house
and only did so later in the bedroom is not so improbable that it can
be rejected as false beyond a reasonable doubt. The
fact that the sex
act took place in the bedroom without the complainant crying out for
assistance is far more likely to have occurred
if the act was with
her consent than without it. And the appellant was hardly likely to
have run the risk of attempting to rape
the complainant in the same
room as his sister and younger brother after she had successfully
fought off his initial attempt to
do so in the Wendy house as to do
so would have invited discovery in a compromising position should the
complainant have again
resisted his advances. Plainly, if the
appellant intended to have forcible intercourse with the complainant
in a house with four
other occupants, without knowing how she would
react, he ran the risk of her raising the alarm and him being found
out. It would
have been far less risky, if he was intent on such
conduct to have done so in the Wendy house, where the opportunity
clearly presented
itself. If anything, the fact that the sexual act
took place where it did is more consistent with the appellant’s
version
than that of the complainant, and the appellant’s
version is not so inherently improbable in that regard to warrant
rejection.
Or rather at best for the State it is a neutral factor
that does not tip the scales in its favour.
[14
]
The fundamental difficulty that I have with the State’s case
is that it rested solely upon the credibility of the complainant
herself. The trial court did not evaluate her evidence in detail
while the high court concluded that it was ‘satisfactory
in
every material respect and is also credible’. This is a
startling statement as a detailed examination shows the complainant
to have been anything but a credible witness whose testimony was
inherently unreliable and as appears from what follows, her evidence
is riddled with inconsistencies and improbabilities.
[1
5]
In her evidence in chief, the complainant made no mention of any
improper advances made by the appellant until such time as
the two of
them had entered the Wendy house. In cross-examination, however, a
very different version emerged. She then alleged
that while at the
hotel the appellant had forced her to sit on his lap and that, while
returning home, the appellant had not only
forced her to sit in the
back of the vehicle with him but, despite her protestations, had
forced her hand onto his private parts.
Had these events occurred as
she alleged in cross-examination, it was surprising to say the least
that she only volunteered this
information at that stage. Her failure
to do so smacks heavily of an attempt to gild the lily.
[1
6]
It is also surprising that if the complainant had been obliged to
physically resist the appellant’s advances, both at
the hotel
and while seated in the motor vehicle, she would have voluntarily
accompanied him to the Wendy house. Importantly, she
also admitted
having willingly kissed him in the Wendy house. This was hardly the
conduct of a person who had just been obliged
to fight off a sexual
predator, and the fact that she went with the appellant to his room
and kissed him there is far more consistent
with the appellant’s
version that she had consented to the sexual contact which had taken
place between the two of them earlier
that evening. Furthermore, the
complainant admitted during her evidence that she was taking an oral
contraceptive at the time,
information that the appellant would
hardly have known unless she had imparted it to him as he said she
had done. This further
corroborates the appellant’s version of
the events. Why else, it must be asked, would she have volunteered
that information,
unless there was a discussion between them about
sexual intercourse. It strikes me as implausible that she would have
imparted
that information to him had she felt threatened by him.
[17
]
The complainant’s description of events after she had left
the appellant’s room is also unsatisfactory. She alleged
that
after she had freed herself from the appellant, she fled from the
Wendy house and, on looking back, saw him fully clothed
following
directly behind her. However, it is common cause that the appellant
had stripped to his underpants and it is difficult
to see how on the
complainant’s version he would have had the time to dress and
to follow so closely behind her. Not only
is her version thus
improbable in this regard but the fact that the appellant was fully
clothed at that stage is consistent with
his version that they had
both dressed themselves before they left the Wendy house together.
[18
]
Then there is the appellant’s allegation that the
complainant had taken him a duvet while he was waiting in the sitting
room for Jolindi to fall asleep. The complainant denied doing so but
Jolindi confirmed that she had. Not only did Jolindi’s
evidence
contradict the complainant’s on this score but she also
confirmed that the complainant had flirted with the men
present at
the hotel and had sat on the appellant’s lap. She also
testified that after the complainant had returned from
the Wendy
house she had said that she and the appellant had just played with
each other. Jolindi took the complainant to school
the next morning.
It was undisputed that notwithstanding the complainant then having
the opportunity to do so, she had not complained
about the
appellant’s behaviour. Indeed Jolindi testified that the
complainant had told her that she had enjoyed her evening
playing
with the appellant. It was only later in the day, according to
Jolindi, that she had heard that the complainant had alleged
that the
appellant had raped her.
[19
]
Jolindi’s evidence was thus inconsistent with that of the
complainant in several respects. She was not shaken in
cross-examination
and there is no reason to doubt her truthfulness.
However, the trial court did not mention her testimony and while the
high court
briefly mentioned her evidence, it neither evaluated nor
considered its effect upon the credibility of the complainant. It
erred
in doing so as Jolindi’s evidence, much of which was
unchallenged, throws considerable doubt upon the version of the
complainant.
[
20]
The complainant’s description of the sex act itself is also
distinctly unconvincing. As I have said, she alleged that
the
appellant had entered the room, climbed on her bed, pulled down her
panty to just below her buttocks and then penetrated her
vagina from
behind, all of which took place without her offering any resistance
or even looking around to see who it was. Not only
is it improbable
that he would have been able to achieve penetration if she was lying
in the position she described but, according
to her, it was only
after penetration that she looked around and asked him what he was
doing. If she was awake, as she alleged
was the case, it is difficult
to accept that the appellant could have done all of this without her
consent. The trial court appreciated
this difficulty and found that
the complainant must have been asleep at the time and was thus not
only unaware of the removal of
her panty and the appellant’s
initial penetration of her, but that she had therefore been incapable
of giving her consent.
But this finding flies in the face of the
complainant’s own evidence that she was awake at all times, and
constitutes a material
misdirection.
[21
]
Had the complainant been raped, one would have expected her to
have immediately cried out for assistance, particularly knowing
that
Jolindi was present in the room. She did not do so. Nor after the act
did she wake Jolindi. When pressed on this, the complainant
alleged
that she had attempted to awaken her but that Jolindi had been so
drunk that she continued sleeping. Jolindi denied having
been drunk
and said that she had merely had a single brandy and coke during the
course of the whole evening, and her evidence in
this regard was not
challenged. The complainant’s evidence in regard to what she
told Jolindi the next morning was also unsatisfactory.
Initially she
said she did tell Jolindi of the rape, but went on to say that she
could not remember if she had done so. As I have
said, Jolindi’s
evidence has not been shown to be unreliable and is wholly
inconsistent with the complainant doing anything
else but expressing
her pleasure at the events of the preceding evening.
[22
]
Moreover, the complainant said that she did not report the
incident to Jolindi’s mother as she did not know her well
enough, and that she therefore decided to wait until school to report
the incident to her teacher, Mr Bruwer. When Mr Bruwer testified,
he
made no mention of the complainant reporting that she had been raped.
Instead he stated that she had shown no signs of being
at all upset
during the course of the morning classes which is hardly what one
would expect of a young girl who had been raped.
However he did state
that the complainant had told him that she did not want to return to
Jolindi’s house and that, as a
result, he arranged for the
complainant’s mother to come to school and met with her and the
complainant that afternoon when
the complainant’s mother
reported to him that the complainant had been raped.
[23
]
It is clear from this that the complainant did not complain
immediately after the incident to people that she could trust in
circumstances where it would have been that expected she would have
done so. The first person to whom she appears to have reported
that
she was raped was her mother but the circumstances under which that
report was made are not clear. There is a conflict on
the evidence as
to the precise events that occurred, but it is apparent from her
mother’s testimony that the first issue
that arose was whether
the complainant had been at the hotel the previous evening. It was
only after the complainant’s mother,
who was angry about her
daughter having possibly been at the hotel, made enquiries and
learned from another witness that the complainant
had been at the
hotel that the allegation of rape was first mentioned.
[24
]
Precisely how she had come to make the report was not explored in
the evidence, but the fact remains that the complainant’s
allegation of rape appears only to have emerged after a confrontation
with her mother about her having been at a hotel on a school
night.
In the circumstances that prevailed, there is a very real suspicion
that the complainant’s report of rape was made
in an attempt to
deflect her mother’s anger.
[25
]
In the light of all these factors, I have grave reservations about
the credibility of the complainant and in turn her reliability
I am
thus not persuaded that the State discharged the onus of proving
beyond a reasonable doubt that the appellant’s version
of the
material events was false. Ultimately counsel for the State was
constrained to concede that this conviction as well could
not stand.
[26] In the light
of this conclusion, it becomes unnecessary to deal with the
application for leave to lead further evidence.
[27
]
The following order will therefore issue:
1. Leave to
appeal
is granted and the appeal is enrolled.
2. The appeal is upheld, and the
order of the high court is set aside and substituted with the
following:
‘(a)
The appeal is upheld.
The
appellant’s convictions and sentences are set aside.’
________________
L E LEACH
JUDGE OF APPEAL
APPEARANCES:
APPELLANT: J Hollland-Müter
Instructed by
Potgieter, Penzhorn & Taute
Inc, Pretoria
Kramer, Weihmann & Joubert,
Bloemfontein
RESPONDENT: L Pienaar
Instructed by
Director of Public Prosecutions,
Pretoria
Director of Public Prosecutions,
Bloemfontein