Fletcher and Another v S (171/09) [2009] ZASCA 169; [2010] 2 All SA 205 (SCA) (1 December 2009)

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[2009] ZASCA 169
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Fletcher and Another v S (171/09) [2009] ZASCA 169; [2010] 2 All SA 205 (SCA) (1 December 2009)

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THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case No: 171/09
DIRK
JOHN FLETCHER First Appellant
RUDOLF
DU PLESSIS Second Appellant
and
THE
STATE Respondent
Neutral citation:
Fletcher
v S
(171/09)
[2009] ZASCA 169
(1 December
2009).
Coram:
STREICHER, BRAND,
HEHER, BOSIELO JJA
et
TSHIQI AJA
Heard:
20
NOVEMBER 2009
Delivered:
1
DECEMBER 2009
Summary: Rape – single witness – approach to be
followed – many indications that complainant's evidence true –
accused version
improbable
______________________________________________________
­­­________
ORDER
______________________________________________________________
On appeal from: High Court, Johannesburg (Joffe and
Mokgoatlheng JJ sitting
as a court of appeal from the regional magistrate's
court).
The appeal is dismissed.
_____________________________________________________________
JUDGMENT
______________________________________________________________
TSHIQI AJA (STREICHER, BRAND, HEHER, BOSIELO JJA
concurring):
[1] The two appellants appeared together with Mr F de
Kock before the regional magistrate in Randburg on a charge of rape.
There
were also other charges but they are no longer of relevance on
appeal. In support of the rape charge the State alleged that on 16

January 1998 the three accused had sexual intercourse with the
complainant, Bianca, without her consent. All three pleaded not

guilty. The two appellants both testified in their defence. De Kock
did not. The trial court convicted the first appellant, Mr
Fletcher,
of rape and sentenced him to twelve years' imprisonment. The second
appellant, Mr Du Plessis, was acquitted on the rape
charge but
convicted as an accomplice to the rape by Fletcher for which he was
sentenced to six years' imprisonment. De Kock was
acquitted on all
charges. The appeal by the appellants against their convictions and
sentences to the Johannesburg High Court (Joffe
and Mokgoatlheng JJ)
was unsuccessful. Both appellants then sought and obtained leave from
the court a quo to appeal further, again
against both their
convictions and sentences to this court. Du Plessis's appeal was
struck from the roll for non-appearance. This
judgment therefore
relates to the appeal by Fletcher only.
[2] According to Bianca's testimony she was raped by
Fletcher – who was assisted by Du Plessis – during the early
morning hours
of 16 January 1998. This was denied by the two of them.
They did not dispute, however, that they were in the company of
Bianca
at the time. In the main, Bianca's version as to how this
occurred is also common cause. According to Bianca she was 24 years
old
and single at the time. On the evening of 15 January 1998 she
accompanied four of her friends to a night club in Rosebank,
Johannesburg.
When she became separated from her friends, she had a
panic attack. She left the club and sat outside crying. Fletcher
offered
her a lift home in his car which she eventually accepted. As
they set out, Fletcher was driving while she occupied the front
passenger
seat. Du Plessis and De Kock were passengers at the back.
[3] Along the way Fletcher did not take the highway as
she expected but took a road which was unfamiliar to her. Fletcher's
explanation
for this is that he wanted to avoid the traffic police as
he was intoxicated. Bianca testified that once she realised that
Fletcher
was using a different route, she became scared and started
crying. Bianca and Fletcher contradicted each other on what really
happened
as Fletcher continued to drive. Fletcher's version suggests
that Bianca started behaving irrationally and irritated him whilst he

was driving. Bianca's version suggests that she became more agitated
as they continued along the way as she feared for her life.
However,
they agreed that at some stage there was a tussle over her handbag
which eventually disappeared through the open window
on Fletcher's
side. According to Bianca she needed the bag to dial an emergency
button on her cell phone which was in the bag.
According to
Fletcher's version, on the other hand, Bianca continuously hit his
arm with her handbag, thereby disturbing his driving.
What was,
however, common cause between them was that at some stage Bianca
tried to jump out of the moving vehicle through Fletcher's
window and
that she was pulled back inside. Bianca further stated that along the
way De Kock touched her on her breast and that
Fletcher started
masturbating. Fletcher denied that he did that. De Kock, as I said,
did not testify.
[4] It is common cause that Fletcher then brought the
car to a standstill on the side of the road where they were
surrounded by
open veld. According to Bianca she then opened her door
and ran. All three of the men chased her and caught up with her.
[5] Bianca testified that after she was pushed to the
ground Fletcher pulled down her pants and underwear and then his own
trousers
and made her lie on her back. He then penetrated her anus.
She screamed. He withdrew and penetrated her vagina. Du Plessis was
holding her arms when Fletcher was taking off her pants and De Kock
was just standing next to them. Her mind went blank for a while.
At
some stage De Kock told Fletcher it was his turn. She thought
Fletcher could have ejaculated because she felt wet. Fletcher
moved
away from her and De Kock opened the fly of his trousers and climbed
on top of her. She could feel his penis on her thigh.
He whispered to
her and asked her to co-operate with him because he wanted to help
her. He told her to pretend she was enjoying
herself and she
complied. He asked the other two to leave them as they were enjoying
themselves. At first they stood on the left-hand
side and he again
asked them to leave. They climbed into the vehicle and left. She and
De Kock ran away from the scene. De Kock
lifted her on his shoulders
and they ran until they came across the patrol vehicle driven by two
security guards. At that time,
Bianca testified, she only wore a
jacket and a T-shirt. Below the waist she was completely naked.
[6] Bianca's version is supported in this regard by the
two security guards, Messrs Mbokazi and Sithole. They testified that
they
were driving a patrol vehicle during the early morning hours of
16 January 1998 when they heard a woman screaming for help near
Cedar
Road, Fourways. They drove in the direction of where the screams came
from and saw De Kock and Bianca standing next to the
road. Bianca was
completely naked below the waist and she was trying to pull down her
leather jacket to cover herself. Bianca and
De Kock requested the two
security guards to take them to the nearest police station which they
then did.
[7] Fletcher's version, which was supported in all
material respects by the evidence of Du Plessis went as follows:
After he brought
the vehicle to a standstill, Bianca got out of the
car through the driver's window and ran across the road into the
veld. He thought
of leaving her but they all decided to go and find
her. As he was running he fell into a donga. He then saw Bianca on
his right-hand
side lying on her back. Before he had a chance to say
anything she called out to him and said 'please do not do this to
me'. He
was angry and frustrated and went to her and straddled her
with his knees on either side and told her in a harsh manner to
relax.
He was joined by De Kock and Du Plessis and at that time she
relaxed completely. She asked Du Plessis to fetch a cigarette and
whilst Du Plessis was gone he and De Kock remained behind. When De
Kock nudged him on the shoulder he got up and moved away. Du
Plessis
came back with the cigarette which Bianca smoked. He noticed that her
pants were down to her knees and that she and De
Kock were whispering
to each other while he lay next to her in what could be described as
an intimate position. They then started
kissing. De Kock asked
Fletcher to leave the two of them alone. Fletcher, on the other hand,
insisted that they should all leave
together. Bianca then said that
she and De Kock were enjoying themselves and asked to be left alone.
According to Fletcher he thereupon
left with Du Plessis. After a
while the two of them, however, decided to come back, which they did.
At that stage they saw De Kock
carrying Bianca over his shoulder on a
dirt road, moving away from the tarmac.
[8] Bianca was a single witness to the rape. It is trite
that her evidence should be approached with caution. The objective of
this
approach is mainly to reduce the risk of wrong convictions. It
is not to be confused with the erstwhile requirement of corroboration

in sexual offences. This appears from the following statement by
Olivier JA in
S v Jackson
:
1
'In my view, the cautionary rule
in sexual assault cases is based on an irrational and out-dated
perception. It unjustly stereotypes
complainants in sexual assault
cases (overwhelmingly women) as particularly unreliable. In our
system of law, the burden is on
the State to prove the guilt of an
accused beyond reasonable doubt ─ no more and no less. The evidence
in a particular case may
call for a cautionary approach, but that is
a far cry from the application of a general cautionary rule.'
[9] In
S v Chabalala
2
Heher JA formulated the principles in evaluating the evidence of the
state and an accused person in a criminal trial as follows:
'The trial court's approach to
the case was, however, holistic and in this it was undoubtedly right:
S v Van Aswegen
2001 (2) SACR 97
(SCA). 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.'
[10] Applying these principles to the present facts, the
main enquiry is whether Bianca’s version can be accepted without
reasonable
doubt despite the fact that her behaviour was, by all
accounts, at times, quite bizarre. In answering this question sight
should
not be lost of the following statement by Cloete JA as to the
meaning of 'corroboration' in
S v Gentle
:
3
'The representative of the State
submitted on appeal that (I quote from the heads of argument):
"(T)here was sufficient
corroboration or 'indicators' to support the occurrence of the
rapes."
It must be emphasised
immediately that by corroboration is meant other evidence which
supports the evidence of the complainant,
and which renders the
evidence of the accused less probable,
on
the issues in dispute
(cf
R v W
1949 (3) SA 772
(A) at 778-9). If the evidence of the complainant
differs in significant detail from the evidence of other State
witnesses, the
Court must critically examine the differences with a
view to establishing whether the complainant's evidence is reliable.
But the
fact that the complainant's evidence accords with the
evidence of other State witnesses on issues not in dispute does not
provide
corroboration. Thus, in the present matter, for example,
evidence that the appellant had sexual intercourse with the
complainant
does not provide corroboration of her version that she
was raped, as the fact of sexual intercourse is common cause. What is
required
is credible evidence which renders the complainant's version
more likely that the sexual intercourse took place without her
consent,
and the appellant's version less likely that it did not.'
[11] So, what we are looking for are indications on the
undisputed facts which lend support to Bianca's version and at the
same
time renders Fletcher's conflicting version so unlikely that it
cannot reasonably possibly be true. As to what happened while they

were travelling from the night club, it is common cause that Bianca
tried to jump out of a moving car. Whilst her choice to jump
out of
the driver's side is bizarre, her action shows that she was indeed
scared. This is consistent with her version that she
became more
terrified as Fletcher drove on a route unfamiliar to her. Fletcher
also supports her version, in broad outline, as
to what happened
after he had parked the vehicle next to the road. He confirmed that
she indeed opened her door and ran out of
the vehicle into the open
veld. Although Fletcher denied that he caused her to fall and further
denied that he pulled her pants
and underwear down, he admitted that
he climbed on top of her and straddled her with his knees on either
side. It is this part
of Fletcher's version that I find particularly
unconvincing in several respects. First, it is improbable that Bianca
would be lying
on her back while she was trying to get away from the
three men of whom she was clearly frightened. Secondly, since
Fletcher knew
that Bianca was frightened of what might happen to her
– because she said so – it is highly unlikely that he would
straddle
her, as he said he did, to calm her down. Thirdly, it is
highly unlikely that De Kock would nudge him to get off Bianca and
then
get on top of her himself after she had been calmed down by
Fletcher. Fourthly, on Fletcher's version there is simply no
explanation
for the fact, which is common cause – that Bianca's
pants and underwear were pulled down at that stage. The possibility
that
it was done by either Bianca or De Kock is extremely unlikely.
It would raise the rhetorical question why he or she would pull down

her pants and underwear and then run through the veld naked; stop an
unknown vehicle and so forth, while she was in that undignified

state. That leaves only Fletcher as the one who did it, as Bianca
said.
[12] Another unconvincing part of Fletcher's version
relates to what happened while they were travelling. He agreed that
it was
potentially clear to him that Bianca wanted to go home and
that initially she was doubtful of accepting a lift from him when
they
were joined by his two friends in the vehicle; yet when he
decided to take a detour to avoid traffic police, he did not convey
this to her at all, even after she had tried to jump out of the
window. The only probable explanation is that Bianca indeed became

more nervous as they drove along and tried measures; albeit bizarre,
to escape from the situation.
[13] Bianca’s version was further corroborated by the
two security guards who met her and drove her and De Kock to the
police
station. They testified that she was trembling, scared and
could not speak properly and that she was naked from the waist down.

Her emotional state is also confirmed by the evidence of her father
whom she telephoned and who met with her soon thereafter.
[14] Further corroboration is to be inferred from her
inability to cope at work and to continue living by herself. This
clearly
shows that she was subjected to trauma which had an impact on
her lifestyle. In addition she had to attend treatment by a
psychologist
and a psychiatrist. Although it is not in dispute that
she had mild depression before this date, this evidence clearly shows
that
something aggravated her situation such that she had to receive
more intensive treatment.
[15] Her behaviour immediately after the incident also
gives credence to her version. She asked to be taken to the police
station
to report the rape in her half naked state. It is highly
unlikely she would have gone to two police stations in such an
undignified
state to falsely incriminate two men she had met that
same evening and who did nothing but offer her a lift home. She
persistently
informed the police and the doctor that she had been
raped. Even her physical and emotional state at the time was
consistent with
her version. There is no basis for such an emotional
state if Fletcher's version is accepted, ie that she had completely
relaxed
and was in fact, enjoying herself when they left her with De
Kock.
4
There is therefore no reason to find that Bianca was not telling the
truth.
[16] The quality of the medical attention afforded to
Bianca was, as stated by the court below, completely unsatisfactory.
However,
the J88 states that her emotional state was indicative of
'trauma/sexual assault'.
[17] Finally De Kock's behaviour in the veld gives
credence to Bianca's version and is inconsistent with that of
Fletcher. It is
inexplicable why De Kock would find it necessary to
nudge Fletcher whilst he was straddling Bianca if all he was doing
was to try
and calm her down. Moreover, if she had not been raped it
would have been unnecessary for De Kock to behave as he did
thereafter.
The evidence of Fletcher was therefore correctly rejected
by the trial court.
[18] I therefore make the following order:
'The appeal is dismissed.'
_______________________
Z L L TSHIQI
ACTING JUDGE OF APPEAL
Appearances:
Counsel for Appellant: L M Hodes
Instructed by
Ian Levitt Attorneys, Sandton
Lovius Block Attorneys, Bloemfontein
Counsel for Respondent: Ms A M Williams
Instructed by
The National Prosecution Service of the Director of
Public Prosecutions, Johannesburg
The Director of Public Prosecutions, Bloemfontein
1
1998 (1) SACR 470
(SCA) at 476e-f.
2
2003 (1) SACR 134
(SCA) para 15.
3
2005 (1) SACR 420
(SCA) at para 18.
4
S v Hammond
2004
(2) SACR 303
(SCA) para 22.