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[2018] ZAGPPHC 615
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Venter v S (A611/11) [2018] ZAGPPHC 615 (9 March 2018)
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Certain
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IN TH
E
HIGH COURT OF
SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
(1)
NOT
REPORTABLE
(2)
NOT OF
INTEREST TO OTHER JUDGES
(3)
REVISED.
Case Number: A611/ 11
9/3/2018
In
the matter between:
JOHANNES
JACOBUS
VENTER
Appellant
And
THE
STATE
Respondent
JUDGMENT
POTTERILL
J
[1]
The
appellant was on 31 August 2009 convicted on seven counts of indecent
assault and four counts of rape committed during the period
August
1998 to June 2002. The appellant is with the leave of the court
a
quo
appealing against all his
convictions.
[2]
In
terms of
section 14(3)
of the
Superior Courts Act, 10 of 2013
, the
matter was deferred to a Full Court.
[3]
Due
to the inherent nature of sexual assault and rape rarely taking place
in plain sight of eye witnesses, it leaves a complainant
vulnerable
as a single witness, while on the other hand, it leaves an accused
often with only a defence of a bare denial. The nature
of these kind
of offences, I say without fear of contradiction, leaves a
complainant scarred
and
with
our legal system requiring
viva voce
evidence and cross-examination
causing complainants to suffer secondary victimisation. The Criminal
Law Amendment Act 32 of 2007
has however provided protection to
complainants in sexual related cases in dispersing with another
cautionary rule.
[4]
Coming to the front more and more are complainants mustering up the
courage to speak
out long after they were victims of such offences.
This is one of those matters. The complainant laid a complaint at the
police
only on 20 August 2004 and the trial commenced on 18 August
2006 with the conviction following three years later on 31 August
2009.
[5]
The record reflects an arduous trial interspersed with countless
objections by counsel
for the appellant, often to protect his client,
but at instances with merit. The prosecutor' s cross-examination was
tedious and
not always on point. Witnesses were recalled and cases
reopened. Suffice to say, the prosecution and the appellant were
afforded
a fair trial in being afforded ample opportunity to put all
evidence before the court.
[6]
The crux of the appeal is whether the court
a quo
correctly
found upon evaluation of the totality 9f the evidence that the
''complainant impressed the court as a person whose evidence may
actually be believed':
The court
a quo
thus found the
complainant to be a credible witness, despite contradictions. The
court also made a finding that there were no inherent
improbabilities
in the evidence of the complainant.
[7]
A court's power to interfere on appeal with the findings of fact of
the trial court
are limited.
[1]
Bearing in mind the advantage that the triaI court has of seeing,
hearing and appraising a witness, it is only in exceptional cases
that a Court of Appeal will interfere with a trial court's evaluation
of oral testimony.
[2]
In fact in the absence of demonstrable and material misdirection by
the trial court the court
a
quo's
factual
findings are presumed correct and will only be disregarded if the
recorded evidence so shows the finding to be wrong.
[8]
This court, as the court
a quo
did, accepts that it could not
have been easy for the complainant to be called upon to remember in
detail, and to recount, what
occurred many years ago, taking into
account the nature of the alleged incidents and the effect it had on
the complainant. Due
to this and the time span, it is therefore to be
expected that there will be certain contradictions, discrepancies and
inconsistencies
in the complainant's evidence. What has to be
determined, however, is whether the nature and extent of any such
contradictions,
discrepancies and inconsistencies are material and if
so to what extent it affects the reliability and credibility of the
complainant
and the witnesses. The ultimate test is, before accepting
the evidence of the complainant, that the court has to be satisfied
that
the complainant told the truth and that the version of the
accused should have been rejected as not being reasonably possibly
true.
A
summary of the evidence
[9]
The complainant, Ms. D ("D") took up employment at the Head
Quarters of the [….],
Pretoria Central in May 1998. She was
the professional assistant to the appellant, then Chief Operating
Officer of the [….]
and she carried out the duties of a "PA"
like typing, managing the appellant's diary etc. She was in the
office directly
adjoining the appellant' s office. Within three
months of her taking up employment, August 199 8, the appellant
called her to his
office to bring him documents. After she entered,
he closed the door. This was not denied by the appellant as he said
that they
often discussed confidential matters and the door needed to
be closed. He grabbed her by the wrist and held her with her back to
him, unbuttoned her trousers and fondled her vagina under her
underwear. She managed to pull away and asked him to not do that
again. She did not report that to anybody because she was scared and
terrified. She had also realised that the work environment
was very
white Afrikaner male dominant and the appellant was top of this white
male kingdom. Her account as to why she did not
report any of the
further incidents referred to below was exactly the same; in that she
was scared, terrified and did not know
to whom to report this conduct
in this white male dominant environment where everybody went hunting
together, watched rugby together
at the losie at Loftus, and was very
friendly with the appellant. She also could not confide in her family
or her husband as in
Hindu religion sexual harassment and rape is
treated as a taboo rendering her an outcast. Her husband would take
her three children
from her and her own family will disown her and
would not communicate with her. Dr. Kollapen corroborated the
complainant’s
evidence in this respect. He testified that he is
a general practitioner doing obstetrics and gynaecology. He was born
into the
Hindu faith and is a scholar of Hinduism. He is the
spiritual head of an organisation called PTA Bhajania Mandram. He
performs
ceremonies and rituals according to the Hindu rites. The
Hindu marriage is a sacred sacrament and therefore there is no
divorce
or concept of divorce because marriage is believed to be the
evolving tool that you need to qualify for the second, third and
fourth
stages of life. If a woman is sexually assaulted or raped -she
would not bring it up because her role is to keep the family name
as
pure and as protected as possible. In telling she would bring the
family name into disrepute. In particular her own family would
find
it a terrible disgrace. Nobody would believe her and family and
extended family would withdraw from her. The Hindu way of
life is the
most conservative way of living. The family would believe she is
partly to blame for what happened to her. Family rejection
is why
there is so little reporting of abuse amongst Hindu people. The power
in the extended family places the victim in a very
difficult position
and she could stand to lose her children. Her husband will have an
immediate change of attitude towards her.
[10]
During August to December 1998 the appellant called D into his office
and told her he wanted to hug
her for her good work and before she
could say anything he grabbed her, held her from the back with one
hand around her and his
other hand on her breast. She asked him to
stop but he said,
"what is the problem is this not nice."
He also simulated
"the act of sex"
thus
movements against her buttocks indicating that he would like to have
sex. She was protesting and asking him to stop. She did
not report
his incident as once again she was scared and terrified.
[11] She
did not think it necessary to go with him to look at renovations at
the losie of Loftus, but she
did as she was told because everybody
was scared of the appellant and if he told you to do something, you
did it. She noticed Loftus
was deserted and asked where the people
that were doing the renovations were. He replied that they would be
inside the losie. He
opened the losie with his own key. There was
nobody inside and she was sceptical. She again asked where is the
people and he said
the
"television guy" was
supposed
to be around. She noticed two wine glasses on the counter and he
offered her a glass of wine. She did not drink at all,
because she
suffers from epilepsy and takes medicine conflicting with the intake
of alcohol. Mr. V, a co-worker, corroborated her
that she did not
drink at all and he knew this because they often spoke about her not
drinking. Dr. Van Schalkwyk, Ms.D's general
practitioner denied
telling Ms. D not to use alcohol, because as a rule he would not talk
to Indian patients about alcohol. He
however never ever thought that
alcohol played a role with Ms. D. She was a patient that knew what
medicine she was taking and
what the consequences would be. He
confirmed that drinking alcohol with her prescription medicine would
have a bad influence on
her, although the exact influence he could
not testify to. Mr. G, also a co-worker, testified that he never saw
Ms. D taking alcohol.
The accused handed in a photograph wherein D
had a wine glass in her hand. Mr. L testified that he saw D on more
than one occasion
with a wine glass in her hand but would not testify
thereto that he ever saw her drinking; only that she had a wine glass
in her
hand. Ms. D testified that to be social she would have a wine
glass in her hand, but would never drink wine.
[12] After
she refused a glass of wine from him he pushed her on a wooden bench
with cushions on and lay
on top of her. Mr. V corroborated her
evidence that there was a wooden bench at the losie. She pushed him
and tried to get away
from underneath him. She was unsuccessful. She
ascribed this to the fact that she at that stage weighed 45 kilos and
he was bigger
built than her. He then raped her by lifting up her
skirt, removing her underwear and forcefully inserting his penis into
her vagina.
This caused her pain. He then drank another glass of wine
and threatened that if she told anybody he would kill her with a
shotgun.
She believed him because he was a hunter and she had at the
office seen a rifle. She was scared and terrified and phoned his
supervisor
Mr. L. She said she needed to speak to him, because Mr.
Venter was sexually harassing her. Mr. L said he could not talk to
her
at that point in time, but would call her back. He however never
returned her call. She did not inform him that she was raped, because
he was a close friend of the appellant and she was scared of losing
her job. The rest of the day she spent mostly in the ladies
room as
she was nauseous and vomiting quite a few times. She could not
urinate as the walls of the vagina on the outside were torn
and her
urine burnt her. She also had cramps in her lower stomach. She also
noticed little blood spots on her panty. She phoned
the chemist and
asked something for infection with terrible burning. The following
day she went to see a psychologist, Trudie van
der Westhuizen. Ms.
Van der Westhuizen corroborated the complainant consulted with her.
She could however from the first consultation
ascertain that the
complainant was hiding something. She told D that D was paying her
and because D was hiding the truth D is not
getting value for her
money as Ms. V was then not really helpful. She told D this only
after seeing the complainant for months.
In response D broke down and
told her
that
she is being sexually harassed at work and was
raped. She told D that D should have reported it immediately. D was
however very
emotional and told her that she is dependent on money
and due to her religion her family will ostracize her out of her
community.
D told her that it started three months after she started
working there. She confirmed the version of the complainant of all
the
indecent assaults. She also told her the detail of the ri3pe at
the losie including the wine drinking and her refusal because she
was
on medication. This witness knew that the appellant had organised a
social worker for the complainant, because her husband
had caused
bruises on Data ' s arms. She knew that after the divorce the
appellant told D that she need not look for sex elsewhere.
She
confirmed the evidence of D that in 2000 he went on extended hunting
trips and she was not harassed or assaulted. D also told
her that she
was admitted to hospital and was very thin. D also confirmed to her
that he felt her breast to feel in what condition
she was and whether
she was gaining weight. D was also forced on two occasions to give
him oral sex which the complainant refused.
[13] D
testified that she had seen Van der Westhuizen before, about problems
at home, but wanted to see
her this time because the emotional stress
of the sexual assault and rape was getting too much for her. She only
in December 199
9 told Van der Westhuizen about the rape.
[14] D
tried to escape her work environment by looking for other work. She
contacted the same recruitment
agency that obtained her this job. The
lady from the recruitment office phoned back, but Mr. Venter answered
the phone and told
the agent that she was unprofessional and that she
should not call the office again. The appellant then called her into
his office
and told her that she would not get a job elsewhere; he
would ensure that she would get a bad referral. After this transpired
she
asked the psychologist for an anti-depressant. It was also at
that point that she broke down and told Van der Westhuizen that she
was sexually harassed and that she was raped.
[15] The
calling of her into the office and then grabbing her and touching
either her breasts or vagina
continued on numerous occasions between
March and December 1999. It worsened in January 2000 after the
appellant realised that
D was divorced. She and her three kids were
at that stage living with her mother.
[16] One
day in January 2000 he asked her to work overtime as he urgently
needed to finish a project. This
was an unusual request. He grabbed
her arm and pulled her up from the chair. She asked what he was
doing, but he just smiled and
lifted her up from the chair and
started to play with her private parts. He said he needed her to
come. She protested and tried
to wriggle away. She asked him to stop
and said she would scream. He reminded her that there was nobody
there. He then pushed her
to the side of the table and struggled to
undress her, because she had pantyhose on under her pants. He asked
her why she wore
so many clothes. He then raped her and wiped himself
with his handkerchief. He told her that since she is not married
anymore,
she need not look for sex anywhere else. The next day she
did not want to go to work and felt trapped, but she needed to
support
herself and her three children. She could also not forget the
serious death threats he made to her. She then asked Mr. Van S that
sat directly opposite Mr. Venter' s office if he would stay on when
she needed to work overtime. She did that because he could
then hear
if she were to scream. She told him that Mr. Venter had touched her
leg. Mr. V had become a good friend to her, but she
was embarrassed
and emotional and did not tell him about the sexual harassment and
assault. She also did not trust him fully. Mr.
V corroborated the
fact that he and D had a professional friendship during work hours.
He corroborated that she told him that Venter
had touched her leg. He
also knew that the accused and D were going to the losie. The
following day he saw her and he asked her
how the losie was and she
answered
''nogal moot:
but immediately changed the subject. He
also J<new that she suffered from epilepsy. He could also see that
she was stressed and
depressed. He knew that she was scared of Mr.
Venter. He himself took her to the doctor and psychiatrist. She asked
him to stay
with her when overtime was required, because she was
scared to stay behind alone with Mr. Venter. He testified that they
seldom
had to work overtime; it was maximum six to seven times and
not longer than 30 minutes at a time. In the period from 2000 to 2003
it was about three to four times that they worked half an hour
overtime. He moved offices in 2000 and later he again moved further
down the passage. D informed him that the appellant had a problem
with him moving about in the passage that much and taking up
time in
D's office. He saw the appellant playing games on the computer of D
and in that time D would stand next to him. He knew
that D
manipulated Mr. Venter' s diary so that he would be out of the office
as much as possible. D had informed him that she had
to endure the
poor working relationship and that the appellant had told her that he
would not give her a good reference. She also
informed him that the
appellant had threatened to shoot her with his own gun and he himself
also had seen the appellant with a
hunting rifle walking down the
work passage. He was not at all surprised that she never told him
about the rape and sexual assault,
because she would never tell a man
because as a rule they would never talk about sex, religion and
politics. He volunteered that
this was confirmed by the fact that the
moment a woman took over as the Head of the institution D had the
courage to tell all.
The day they went to the losie he saw D and the
appellant drive off in one vehicle. In cross examination much
was made of
the fact that in fact Venter and D had left in two
vehicles, and that V would not be able, from the position that he was
standing,
to see that there were two people in the vehicle. However
the evidence of Mr. J corroborated his evidence that from where V
stood
he could from the bathroom window in fact see the identity of
two people in a vehicle. Mr. J is an official photographer.
[17] From
February to June 2000 the appellant mostly went on hunting trips. In
September 2000 she was admitted
to the Louis Pasteur Hospital for two
weeks for depression and migraines. It was caused by stress and being
underweight from the
sexual harassments and rapes. When she returned
she only weighed 39 kilos and the sexual harassments stopped for a
while. Between
the end of September to December the appellant would
touch her breasts on top of her clothing, saying he would want to
feel is
she is gaining weight so that she could be ready for him. She
stopped eating because she thought he would stop if she stayed
underweight.
In December he told her that she was still underweight
and he would wait for her for in the new year. However the pattern of
sexual
assault continued the next year despite her being underweight.
The pattern consisted of him calling her into the office to bring
him
documents, him closing the door, and pressing her against him with
him standing behind her and fondling her private parts.
[18]
During
January 2001 to June 2002 on two occasions he tried to force her to
have oral sex with him. When she refused to do so he
raped her. In
July 2002 nothing happened as he was setting up new offices at the
Waterkloof Air Force Base. When he tried to force
her to have oral
sex he would put his finger inside her vagina but he never put his
finger inside her vagina during the sexual
assault. His
modus
operandi
with the oral sex was that
he would fondle her vagina by putting his fingers inside her vagina
and would then unbutton his trousers
and take out his penis. He would
push her downwards towards his erect penis. She however pulled her
mouth stiff and kept her teeth
clenched. He would then grab her and
push her to the side of the table, undress her and rape her from
behind. Dr. Van Schaklwyk
was, ironically, the house doctor of the
appellant and his wife, as well as D. He confirmed that he treated
Data for epilepsy,
migraines and depression. He thought that the
depression and epilepsy treatment started after a motor collision
that D was involved
in. He did not find it strange that Ms. D would
not tell him about the sexual assault as an Indian patient would not
always have
the courage to talk to him. Besides that, he was not the
only doctor that she was seeing and perhaps she discussed it with
another
doctor. He also did not think that she would discuss it with
him because she knew that the appellant and his wife were also his
patients.
[19]
In
Trudie van der Westhuizen's statement she recorded that D came to her
in 1998 for trauma counselling due to being harassed. This
was
contra-distinct to her
viva voce
evidence. She however testified that
the statement was totally incorrect and this was so because the
complainant struggled to communicate
and only a year later told her
of the sexual assault; so her
viva
voce
evidence was correct. In her
second statement her lack of detail was due to the fact that it was
two men taking down her statement
and she did not know how much
detail to give. In her statement the averment that D at Loftus was
penetrated anally was totally
incorrect. The reason for this was that
she interwove all the instances together and thus expressed herself
as she did. It must
be borne in mind that she made this statement
next to the road, where the investigator had met her halfway.
[20]
Dr.
Spies compiled a report. She is clearly an expert with 22 years'
expertise in research and counselling of sexual assault and
trauma.
Her conclusion was that D was exposed to some trauma, that can be
compared with that of sexual abuse. She testified that
there is a
vast difference between sexual trauma in the marriage and sexual
trauma out of the marriage.
[21]
Mr.
K testified the date on the civil summons was wrong and was amended
without objection. Confusion rose from the disciplinary
hearing
wherein the date of 2004 also featured. He inspected the losie and
there was in fact a wooden bench.
[22]
Ms.
Grobbelaar testified that she attended a day course that inform
workers what to do if there was some form of sexual harassment
taking
place. She corroborated the evidence of Ms. D that Ms. D did not
attend the course. She found it strange that Ms. D was
not on the
course because she thought that as Mr. Venter's secretary, him being
the executive, she should have attended the course.
This was
especially so as it was not a voluntary course. She was sexually
harassed and at the same institution, although reported,
nothing came
thereof. Her managers decided not to take it any further. She also
recalled a wooden bench in the losie.
[23]
Mr.
Venter explained his position as the Executive Manager of [....] and
[....] was a labour brokerage for the [….]. D was
appointed as
his secretary and despite the wording on the contract he did not
employ her as a personal assistant, but only as a
secretary. There
was an induction process and that took the first two weeks of August.
Later on he acknowledged that he made a
mistake and that it was in
fact the first two weeks of May. He did not agree with D that the
induction only took one day. He denied
any sexual assault or rape of
D. He denied that he ever had to work overtime. He took the
complainant to the losie to familiarise
herself with the
surroundings. They drove in two vehicles because of her jealous
husband of whom she was scared. He had to physically
take her to the
losie to show her where to stand when she had to receive guests. He
conceded that she would only need to go to
the losie if six other
people at the same time were unavailable. For the whole period that
she worked there the need in fact never
arose for her to receive
guests in the losie. He denied that there was a wooden bench in the
losie, but an L-shaped bench made
from bricks.
[24]
He
testified that in the working environment he had a problem with D.
She confronted him saying she earned too little but he informed
her
that it was market related. She was thus upset with this answer. He
refused to grant her a loan from the company because she
was paying
off other loans and she was unhappy about the refusal. He often had
to address her because she was arriving late for
work. She was also
very unhappy because he told her that V must not come in her office
anymore. He also prohibited her from selling
linen, lingerie and
tableware during office hours. Mr. V was also correcting her minutes
and he stopped that because there was
sensitive information in the
minutes to which Mr. V was not privy. She misused the telephone for
private calls. He did not refuse
to send her on a course relating to
sexual harassment and assault. He knew that there was marriage
problems and saw blue marks
on her arms and he referred her to Trudie
Lourens, a probation officer working for [....]; D confirmed this
referral.
[25]
He
did hunt with Mr. L and had good working relations with him. L was
also charged with disciplinary hearings. He himself was found
guilty
in the disciplinary hearing, but then Denet contacted him and they
settled with him with the terms being that he would retire
from
service before pension and benefits.
[26] He
testified that he saw D using alcohol more than once.
[27]
In
cross-examination he conceded that he had to accept that the
signature of Ms. D always had a line under it.
[28]
He
confirmed that there was an incident between him and D where all the
personnel were present. Ms. D was late and he requested
D to fetch
his cellphone so that he could enquire about Ms. D’s
whereabouts. D refused and said she had called her prior
to their
meeting in the boardroom. D in front of all the personnel apologised
to the appellant for her behaviour.
[29]
Mr.
L was called and he denied that D phoned him to report Mr. Venter. He
saw D on more than occasion with a wine glass in her hand
but
expressly stated that he only saw a glass in her hand and he never
saw her drinking. He confirmed that he would also find it
strange
that D did not attend the sexual harassment course. He confirmed that
he and Venter watched rugby together, hunted together,
went to
Dullstroom together and had a week holiday together with their
respective families.
[30]
Ms.
Button testified that as the payroll administrator of Denel she was
in control of all personnel files and contracts therein.
She noticed
that D signed with a line under her signature but not on all the
documents.
[31]
Mr.
H testified that there was no wooden bench in the losie.
[32]
Mr.
Cloete was previously in the South African Police Services and he
inspected the signature of Ms. D on all the documents and
compiled a
report. He had no doubt that the disputed writings on exhibit "EE"
and "B" were written by the same
person who wrote the
genuine specimen writings; i.e. D. The line is known as a decorating
stroke and the exclusion thereof is not
a fundamental difference, but
a habit of people. In his first report he opined that the small
differences led him to not make a
positive conclusion that it was not
forged. In his second opinion he decided that the slight differences
were in fact natural variations.
This was because he received
additional specimens, although he could not deny that he received
enough specimens with his first
report.
[33]
The state then called the expert witness
Esterhuizen, who testified that Van Coller was not objective. Van
Coller should not have
come to a definitive conclusion. His own
finding is inconclusive and that should also be the conclusion of Van
Coller.
Analysis of the evidence
[34]
The
court
a quo
accepted
the evidence of the complainant as reliable and truthful. The
magistrate did approach the evidence with caution. In respect
of the
cautionary approach of evidence it is of importance to heed the
dictum
in
Jackson
[3]
and
S
v Sauls and Others
1981 (3)
SA 172
(A)
at 180E-G:
“
There
is no rule of thumb test or formula to apply when it comes to a
consideration of the credibility of the single witness
...
The trial judge
will weigh his evidence, will consider its merits and demerits and,
having done so, will decide whether it is trustworthy
and whether,
despite the fact that there are shortcomings or defects or
contradictions in the testimony, he is satisfied that the
truth has
been told.”
The Supreme Court of Appeal in
S
v Jackson
1998 (1) SACR 470
(SCA) at
476e found the
following:
“
In
my view, the cautionary rule in sexual assault cases is based on an
irrational and outdated 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.”
[35]
D
was subjected to lengthy, vigorous and thorough cross-examination .
This is expected where an accused is facing extremely serious
charges, but with the reservations previously raised. The appeal lies
in main against the contradictions in D' s
own
evidence and specifically
contradictions pertaining to the dates of the offences. Although
there were contradictions, experience
has shown that to expect any
witness to flawlessly testify about such incidents, and more so as to
what happened many years ago
would be totally unrealistic. The
appellant contradicted himself as to when the induction took place
and often would not commit
himself to dates for this very reason; it
happened a long time ago. That having been said, the court had to
determine whether the
nature and extent of the contradictions
affected the credibility and reliability of D.
[36] The
first contradiction related to count 12 and whether the offence
occurred in June 2002 or July 2002.
An amendment of the charge sheet
was allowed to reflect the date of the offence as June 2002. The
court
a quo
however found that the state did not prove beyond
reasonable doubt the appellant’s guilt on count 12. The
contradictions relating
to whether in June 2002 she was raped or
whether she was sexually assaulted and her confusion pertaining
thereto was thus addressed
by the appellant being found not guilty.
The other contradiction relating to time frames was that she
testified during the period
August 1998 to December 1998 there was
one offence of sexual assault, but later testified that there was
indeed two instances of
sexual assault as reflected in the charge
sheet. Did the magistrate err in accepting that this contradiction
did not affect the
reliability and credibility of D? I think not; the
finding of not guilty on count 12 did not render the balance of D' s
evidence
to be untruthful. D herself told the court from the outset
that the events traumatised her and that she was still traumatised.
Despite days and days on end of cross- examination pertaining to the
offences itself the only further contradiction related to what
period
two further sexual assaults took place. As stated earlier confusion
as to
what dates in 1998, eight years earlier, what offences
was committed is not indicative of untruthfulness, but of mistake. D
never
wavered on what offences were committed, just exactly when
those offence were committed.
[37] The
appellant also made much of the averred contradiction as to whether
the appellant during the sexual
assault just fondled her vagina or
inserted his fingers into the vagina. There was no contradiction. In
her evidence in chief she
testified that sometimes he fondled the
vagina and sometimes would put his finger into her vagina.
[4]
There simply was no contradiction, touching the vagina included on
occasion inserting his fingers into her vagina. She confirmed
this in
cross- examination.
[5]
[38] The
other contradiction the appellant relied on was whether D attended a
sexual harassment course or
not. This was relevant as she testified
that the appellant specifically did not send her on a sexual
harassment course; thereby
not empowering her. She testified that she
attended other courses, but nothing containing information pertaining
to sexual harassment.
She was then shown a document dated 8 July 1999
with her signature on it. She testified it was her signature, but
then shook her
head as reflected on the record and stated the
following:
"No I, what I can do Your
Honour is to bring in the certificates tomorrow of which I attended
courses at [....]. I think that
will sort out the problem better
regarding the issues surrounding the courses attended."
When after a further 505 pages of
cross-examination she was again referred to this course and the fact
that when she saw the signature
she in court confirmed that she did
attend this course, she denied that she in court admitted that she
attended the course. She
explained the contradiction by saying
"No,
I did not understand you at first, I thought during the employ at
Dene/, not in court."
This is a reasonable explanation. But,
in any event, Ms. Grobbelaar confirmed that Ms. D did not attend the
course on 8 July 1999.
She recalled it specifically because she found
it strange that the boss' secretary did not attend this compulsory
course. The evidence
of D must thus be accepted that the appellant
did not send her on a course explaining procedure to follow when
sexually harassed.
[39] The
handwriting expert of the defence insisting that the signature on the
document was that of D's,
was unreliable. No court could follow the
guidance of this expert. This witness was, besides as reflected on
the record, a rude,
biased and sarcastic witness, was also
unreliable. The court
a quo
thus correctly did not rely on the
evidence of this witness. Although the court' s non-reliance on the
evidence of this witness
was a ground of appeal, this point was not,
rightly so, argued on appeal. The handwriting expert of the state,
Esterhuizen, gave
convincing reasons as to why the defence' s expert
witness was biased and his conclusion should not have changed from
his first
report to his second report. The conclusion of
inconclusiveness should have prevailed.
[40] To
summarise, this
''contradiction" did
not affect D' s
reliability and credibility. The court
a quo
correctly
accepted that she was not on the course. Her name on the bottom of
the list, out of alphabetical order is another factor
to consider.
The rejection of the appellant' s expert witness, her own evidence
that she was not on the course and the corroboration
thereof by Ms.
Grobbelaar in fact renders her version reliable. Ms. Salome Pienaar,
who the defence said would testify that D was
on the course, was
never called by the defence.
[41] D testified that
after the rape at the losie she reported it to L. Much was made of
the fact that she
did so while not reporting the sexual assault
committed before the rape incident to any other white male boss. It
does not take
much logic to accept that rape is a big step up from
sexual assault and that she bit the bullet and reported it then. Mr.
L did
not return her call as expected; confirming her strong voiced
suspicion that the white males would protect each other. Contrary
to
her
viva voce
evidence this was not mentioned in her statement
to the investigator. Once again she gave a very reasonable
explanation as to why
it was not there:
"It was, he was rushing to
take my statement and he said, that is why I put it in the beginning
I have mentioned only the important
aspects and he said he would come
back to me if he needed any further questions and nobody had come
back to me for additional information."
She was also criticised for not in
the disciplinary hearing testifying that she contacted Mr. L after
the rape. She explained that
she testified in that hearing from her
statement
[6]
, wherein of course this call was not mentioned. It must be
remembered that the appellant chose not to attend the disciplinary
hearing and she just had to put the basis of the facts before that
hearing. She did however explain that what she did testify to
was
that before the second rape she had heard that Mr. L had an issue
with the previous personnel assistant and this is why she
did not
contact him any further.
[42]
Mr. L testified that D never called him.
The court
a quo
correctly
on the totality of the evidence rejected this version as not being
reasonably possibly true. Once again the fact that
the statement did
not contain this averment is explained. Furthermore the court
a
quo
correctly referred to the trite
case law that statements rarely contain every detail because they are
not taken with as much care,
accuracy and competency and that
therefore it is not unusual nor surprising that discrepancies occur
between the evidence and a
statement. It is also not done on the
basis of questions. This contradiction did not affect the reliability
and truthfulness of
D' s evidence.
[43]
D testified that the appellant was very
powerful at [....]; when he ordered, you obeyed. She testified that
it was a very white
Afrikaner male kingdom and that the appellant was
the king of this kingdom. This could not be disputed. The environment
was one
of rugby and hunting to keep clients happy. She also
testified that Mr. L and the appellant were good friends. The
appellant and
L denied this. D's evidence must be accepted on this
point, because the appellant's version is just not reasonably
possibly true.
It is accepted that they had a good working
relationship, but it was clearly also a friendship as testified to by
D. Working colleagues,
without any friendship, do not go on fishing
trips to Dullstroom together with no obligation to entertain clients.
Neither do their
families holiday together for a week. These factors
give credence to the version of D. In this matter the devil is in the
detail;
nobody can fabricate a version spanning four years in such
detail, cross-examined to this extreme, with the only contradictions
being immaterial.
[44] The
other contradiction relied on is between the evidence of D and that
of Mr. V. Both of them testified
that D asked V to stay late if she
needed to work late because she was scared of the appellant. D
testified that V only had to
stay late once whereas V testified that
at most they worked late six to seven times. He however emphasised
that it was never more
than 30 minutes at a time. The submission that
V testified that they worked overtime four times but then changed his
evidence to
then working six to seven times overitme and then changed
it again to ten times is simply not true. He testified that between
2000
and 2003 staying late was three to four times, but in the year
199 9 it was five to six times. But, he persisted with his version
that he included periods that they stayed 15- 20 minutes later, not
like working overtime for an extra two or so hours.
[7]
[45]
The point is V corroborated the evidence
of D that she was scared of the appellant and asked him to stay
behind if she had to stay
later. This corroborates her version that
she was scared of further sexual assault or rape when left alone
after hours with the
appellant. The amount of times that V had to
stay behind is not material. This is the only contradiction between
him and D and
it does not render his evidence untruthful. The court
a
quo
was correct to find
corroboration in his evidence of D's credibility.
[46]
The only other contradictions that can
reflect on the evidence of D is that between her and Ms. Van der
Westhuizen. Ms. Van der
Westhuizen could four years, after the fact,
inform the court of the manner of sexual assault corroborating what
the complainant
told her. She recollected that D told her that she
was raped five times, but D had testified that it was four times. She
knew the
detail that two of the rapes occurred after D refused the
appellant oral sex. She also recalled that D told her that the first
two sexual assaults on her private parts was over her clothes whereas
D had testified that his hands were under her clothes. She
also made
two statements, one in 2004 and one in
2007.
In her one statement it was recorded
that D came to her in 1998 for trauma counselling because of the
appellant's sexual assault.
She testified that this was totally
incorrect because D struggled to communicate and only a year later
told her of the assault.
Much was made of the fact that in her
statement she said D was raped from the back and front at the losie.
She explained that she
condensed all the evidence in one and actually
meant that the rape method was from the back and the front, i.e.
always the vagina
but the appellant's position being either at the
back or the front. The statement in 2007 was hand written next to the
road where
the investigator met her. She also did not understand why
she had to make another statement as she had made one in 2002. The
statement
in
2007
was
thus just a summary of what D had told her. The one in 2002 was
translated from Afrikaans to English and she did not read the
English
version thereof.
[47] The
court
a quo
was
correct in finding that statements under those circumstances did not
affect the credibility of the witness or that of D.
[8]
The court was correct in accepting that the second statement was in
fact a summary of what D told her; exactly as the case law
describes
the circumstances under which statements are taken. Her explanation
that the appellant raped D from the front and back
on different
occasions was supposed to be reflected in her statement is not
far-fetched but plausible. Once again the devil is
in the detail; Van
der Westhuizen recalled that the appellant called D a "koelie";
D was scared of him and he threatened
to shoot her; she knew due to
D's religion she could not tell her family without severe
consequences and she also knew that D could
not afford to lose her
job. She corroborated the fact that in that time D was losing weight
at an alarming rate. She knew that
D was depressed It was never
suggested that Van der Westhuizen would recall all this detail
because as D's therapist she colluded
with D. Just as it was never
suggested that V came to court to help his work colleague. Van S, on
record, stated that testifying
was an unpleasant experience and he
was threatened in writing by the appellant that he would be sued. D's
version that she was
so thin, which was in any event never denied,
renders her version that she hoped that the appellant would leave her
alone as truthful.
The deep humiliation she had to endure to be felt
up to see if she was fattening up, is shocking and exceedingly
distasteful.
Corroboration of the
evidence
[48]
Corroboration may usually be found in independent evidence which
confirms the evidence of a complainant.
For instance corroboration
that a complainant was raped may be found in medical evidence
confirming possible injuries sustained
by the victim to her private
parts. Secondly the fact that a complainant promptly reported a rape,
although not proving the rape,
serves to show the consistency of the
complainant's conduct. In this regard the requirement is that the
complaint had to be made
at the first opportune moment that
reasonably offers itself. It follows in the event of the complainant
not having reported the
rape promptly, or at all, it may reflect
negatively on the reliability and credibility of the complainant.
However, the failure
to report the incident at the first opportune
moment should be considered taking into consideration all relevant
facts, and does
not, without more, or automatically, militate against
the complainant's credibility.
[49] In
this matter there is no independent medical evidence of a sexual
assault or rape. Furthermore D
only reported it to Van der Westhuizen
long after the first sexual assault and rape and to the police only
after being prompted
to do so.
[50] Does
the lack of independent corroboration of the offences render the
state's version not to be accepted
and did the court
a quo
err
in accepting the state's version? A lack of corroborative evidence is
not fatal after having applied any cautionary rule in
order to
determine whether the evidence should be accepted or not. In the
South African Law of Evidence,
4
th
Edition,
Hoffmann & Zeffert at
577- 578
the following is said:
"Corroboration is only one
of the factors that may reduce the risk of a wrong conviction."
This lack of corroboration was
argued as being "inherent improbabilities" in the version
of D.
[51] The
reasons provided for not promptly reporting the incidents are not
inherently improbable. The fact
that your husband and own family will
ostracise you and take your children away from you is real and will
have a great influence
in enduring these terrible acts. This reason
provided by D was corroborated with independent evidence of an Hindi
expert Mr. Kollapen.
D was requested by the state to consult
Professor Spies for a forensic assessment. Professor Spies confirmed
that Data is stiff
not able to disclose the sexual abuse to her
family members due to the Hindi religion. This made her healing
process so much more
complicated as she has to carry this secrecy of
the offences adding to her trauma. As an expert she did not at all
find it strange
that D did not want to report the sexual assault and
rape to white males, although reporting it to L. She found it 100 %
in accordance
with practise:
"want al se sy dat sy bang is om dit aan blanke mans wat die
hoofposte daar beklee het op daardie stadium, dit aan hulle te
gaan
meedeel kom hulle regtig op 'n punt waar dit net te veel raak
arguments onthalwe en dan neem hulle die risiko om dit uiteindelik
te
gaan doen. Wanneer daar vir arguments onthalwe niks gebeur nie sal
hulle nie maklik weer die risiko neem nie."
[52] She
testified that there is a vast difference between sexual trauma in a
marriage and outside of the
marriage. She opined that D could escape
sexual trauma in the marriage by moving to her mother, but she could
not afford to lose
her job; “
So
ek kon die trauma hier hoor in die huweliksverhouding, maqr ek kon
ook die verskil in trauma hoor hier waar ek afhanklik is van
'n
situasie (werk).”
[9]
[53] As an
expert she also did not find it at all strange that D went to the
police station to report it,
but because they took long to attend to
her she left without reporting it. In fact she testified that it made
sense to her:
''En my eNaring met hierdie
persone is hulle wend pogings aan om te doen en doen presies sulke
goed as wat mev. D doen, kom by die
poliestasie en hoop eintlik iets
gebeur dat ek dit nie doen nie en wanneer hulle haar nie vinnig
genoeg gaan help nie is dit 'n
geleentheid vir haar om weer daar te
'escape' want onmiddelik is dit geweldige blootstel/ing. So dit is
glad nie vir my vreemd
dat hierdie persone dit doen nie, dit is
dieselfde met gesinsgeweld ook."
[10]
[54]
D
gave good reasons why she did not promptly report the assault and the
rape. Her reasons are corroborated by independent expert
witnesses
and this lack of reporting does not render her version improbable. In
fact both Professor Spies and Mr. Kollapen confirm
the reasons for
the lack of reporting.
[55]
Much
was made about the fact that after the averred rape at the losie at
Loftus D got in the car with the appellant and did not
report it at
the security guards when leaving the premises at the gate. The
appellant's version on the totality of the evidence
relating to the
visit to the losie is not reasonably possibly true and was correctly
rejected by the court
a quo.
It
defies all logic, that if D was to receive people at the losie posted
on a specific spot to induct her and prepare her for this,
it would
be done in an empty losie. This absurdity was amplified by the fact
that she would only ever have to fulfil this duty
if six other people
simultaneously were not in a position to do so; in other words close
to never would she ever have to fulfil
this duty. This is
corroborated by the common cause evidence that in the six years she
worked there she never needed to fulfil
this duty. The losie was
simply a convenient private spot. The common cause fact is that there
was a bench on which the appellant
could force her down; whether it
was a wooden bench or built-in bench is simply not material. do
however find that the magistrate's
finding that it was in fact a
wooden bench to be correct. It is not improbable that D would not
report it to security people at
the entrance to Loftus that she was
raped by the man driving the car. What would the scenario be? He
simply denies it and drives
off, but, more importantly, the
undisputed evidence of Professor Spies must be accepted that:
"Want ek kan vir u redelik
baie uit die literatuur gee, daar is nie 'n goeie tyd om hierdie goed
te rapporteer nie, da r is
nie 'n beste tyd om dit te rapporteer nie,
gewoonlik word dit gerapporteer wanneer niks meer oorbly op die ou
einde nie."
D herself testified that it was
the first time that she had ever been raped, she was totally in
shock, and besides that after the
rape he had threatened her not to
tell anybody. The reportings of rape will most definitely not be done
to security guards opening
a boom.
[56] Much
was also made of the fact that Mr. Van Coller testified that D was
introduced to him after the
losie incident and she looked fine and
friendly. It is incorrect that the state did not address this
evidence. It was put to Van
Coller that this rape incident took place
in 2000 and not in 1998 as Van Coller testified.
[11]
The mere fact that a court, despite summarising of Van Coller's
evidence, does not refer to it, does not mean.the court did not
consider it. D in fact testified that after arriving back from the
losie the appellant left work shortly thereafter. Furthermore,
D was
never in her evidence in chief cross-examined on the fact that she
was taken to Van Coller after the rape.
[57]
The
appeal is also against the court
a
quo's
rejection of the motives
testified to by the appellant as to why D would fabricate false
charges against the appellant. The court
a
quo
correctly rejected these motives
as not being reasonably possibly true. No court of law expects an
accused to provide motives and
certainly no negative inference can be
made if an accused can't provide a motive as to why a complainant
would lay false charges.
If an accused, himself voluntary testifies
about motives and sets up motives it is part and parcel of his
version. If these motives
are then rejected as part and parcel of his
version he cannot raise the appeal ground that it cannot be expected
of a defence to
provide motives.
[58]
The
fact that the appellant addressed D's averred private abuse of the
phone, the refusal of a loan and V spending too much time
in her
office, did not individually or cumulatively set up motives that are
reasonably true for D to trump up 12 detailed charges
of sexual
assault and rape. The appellant was suspended; she reported it
thereafter, so it c n never be for
"labour
relationships'
It was argued that it
was for financial gain. I agree with the finding of the magistrate;
this is not reasonably possibly true.
Exposing herself to a criminal
matter and to evaluation by Professor Spies is too high a price to
pay for financial gain. She could
institute a civil claim without a
finding of guilty in a criminal matter, simply because the onuses
differ dramatically. To trump
up these charges she would have had to
with premeditation over a long period lose weight, influence V, Van
der Westhuizen, Spies
and the Hindu priest, and mislead the doctor to
corroborate her version.
[59]
The
court
a quo
found
that the state proved its case beyond reasonable doubt and rejected
the appellant's version as not being reasonably possibly
true. I
cannot find that the court
a quo
erred in any manner.
[60]
I
accordingly make the following order:
The appeal against all the
convictions is dismissed.
S. POTTERIL
JUDGE OF THE HIGH COURT
I agree
T.A.
MAUMELA
JUDGE OF THE HIGH COURT
VAN NIEKERK AJ
[61] I
have had the benefit of studying the j 1dgement of my learned
colleague Potterill J, but respectfully
disagree with her finding
that the appeal against all the convictions should be dismissed and
the reasons therefore as appears
from the judgement of Potterill J.
[62]
As referred to in
paragrapl1 [8] of the judgement of my learned colleague Potteril J.,
there are contradictions, discrepancies and
inconsistencies in the
Complainant's
evidence.
Whereas the general cautionary rule in the approach to evidence in
sexual offences had been disposed of by the judgement
of
State
v Jackson
1998
SACR
47Q
(SCA),
the
evidence of a single witness, where no corroborative evidence was
advanced by the State, should be approached with caution where
there
are inconsistencies and/ or discrepancies and/or contradictions in
the Complainant's evidence, and this principle is established
in our
law.
Vide:
State v Jones 2004 (1) SACR (420)(C) on 427 F
-
H
State v M
2000 (1) SACR 484
(W), p. 486 F
-
H
State v Gentle
2005 (1) SACR
420
(SCA), p. 430, par. [17]
[63]
In casu,
no corroboration was provided on the
Complainant's version regarding any of the charges against Appellant,
and on all of these material
issues, the only available direct
evidence was namely that of the Complainant which was denied by the
Appellant during the trial.
For a definition of corroboration,
Vide:
State v Gentle
2005 (1) SACR 420
(SCA), par. [18].
[64]
In my view, the approach of this matter
on appeal should be as follows:
[64.1] Having regard to the fact
that the Complainant was a single witness and no corroborative
evidence was advanced on the material
issues in dispute, the Court
should determine whether or not a cautionary approach to the
Complainant' s evidence is warranted
in the circumstances, with
regard to the authorities quoted
supra;
[64.2] Having regard to the
inconsistencies and/ or contradictions and/ or discrepancies referred
to in paragraph [8] of the judgement
of my learned colleague Potteril
J. referred to
supra,
to which more reference will be
made
infra,
a cautionary approach should be followed in
evaluating the Complainant' s evidence;
[64.3] In evaluating the
Complainant’s evidence against the evidence of the Appellant
the approach should be as follows:
"
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 reasonable 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. But 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."
Vide: State v Van der Neyden
1999 (1) SACR 447
(W) as approved in State v Van Aswegen
2001 (2)
SACR 97
(SCA) at 101 A
-
E
After citing the aforesaid passage
in
State v Krynor
2003 (1) SACR 35
(SCA)
Nafta JA held
as follows:
"A conspectus of all the
evidence is required. Evidence that is reliable should be weighed
alongside such evidence as may be
found to be false. Independently
verifiable evidence, if any, should be weighed to see if it supports
any of the evidence tendered.
In considering whether evidence is
reliable, the quality of that evidence must be of necessity be
evaluated, as must be corroborative
evidence, if any. Evidence, of
course, must be evaluated against the onus on any particular issue or
in respect of the case in
its entirety. The compartmentalised and
fragmented approach of the Magistrate is illogical and wrong'
[64.4] Applying the aforesaid
principles, the issue to be determined on appeal is therefore whether
or not the Court
a quo,
on the available evidence and
following a cautionary approach, correctly found that the available
evidence proved beyond reasonable
doubt that the Appellant is guilty
of the offences as charged;
[65]
Put
otherwise, the aforesaid approach entails that the evidence of the
Complainant should be scrutinised with a measure of attention
to
detail, especially on material issues, to determine whether or such
evidence could reasonably possibly be true to such an extent
that the
Appellant's version on such issues could be summarily rejected as
being improbable or simply a fabrication.
[66] I am
further of the view that, in considering the version of each and
every separate alleged event
of sexual assault and/ or rape as
testified by the Complainant, measured against the Appellant' s
denial of these allegations,
it must be considered that a salient
feature of the case as advanced by the State is namely that there was
no independent corroborative
evidence advanced on any of the charges.
Each witness called on behalf of the State either expressed an
opinion based on allegations
made by the Complainant, and/ or gave
evidence relating to circumstantial issues. The
onus
of
proof is on the State, and it therefore follows that the Appellant
could be convicted on one or more of the charges only in the
event
that the version of the Complainant is accepted, and the version of
the Appellant thereon is rejected, after following a
cautionary
approach to the evidence of the Complainant and applying the
principles as set out in paragraph 4.3
supra.
[67]
Having studied the record of the proceedings in the Court
a
quo,
I not only agree with the finding of my learned
colleague Potteril J. that there are certain contradictions,
discrepancies and inconsistencies
in the Complainant' s evidence, but
I am also further of the view that on various material issues the
Complainant gave evidence
on issues which are improbable to such an
extent that it may be rejected
in toto.
Although there
are numerous examples of the evidence of the Complainant which may be
categorised as falling within one of the categories
referred to
supra,
I will deal
infra
with specific
examples thereof on issues which goes to the root of the factual
matrix upon which reliance was placed for the conviction
of the
Appellant.
[68] I
deal firstly with the Appellant's inability to recall dates of
occurrences, and the inconsistencies
in her evidence in this respect.
Although, as a general sweeping statement, it can be stated that a
complainant in a sexual offences
trial may not be able to recall the
exact dates of occurrences as a result of various factors such as
trauma, lapse of time or
lack of mental capacity due to age or other
factors, when it appears that a complainant is apparently unable to
recall such facts
the reasons advanced by the complainant for an
inability to recall such facts should be scrutinised and tested by
the Court to
determine, objectively , whether such reasons are more
probable than not, as the specific date and time of an alleged
offence is
often of crucial importance to establish guilt.
[69]
According to the evidence in chief of the Complainant the last
alleged occurrence of rape was committed
by the Appellant owing June
2002. Subsequent to this evidence, the State Prosecutor requested an
amendment of the charge sheet
in which it was alleged that the last
incident took place: during July 2002. Although this inconsistency in
itself may be insignificant,
the issue regarding the occurrence of
the last incident of rape gained substantial more importance during
the course of the trial,
as it later transpired that the Complainant
previously gave instructions to an attorney acting on her behalf, a
certain Mr Girpal,
who instituted civil proceedings against the
previous employer of Complainant and Appellant, based on the same
facts as were germane
in the trial Court
a quo,
that
the last occurrence was during the year 200 4. Not only did the
Complainant instruct her attorney that the last occurrence
was in
2004, but this was also the Complainant's case during disciplinary
proceedings instituted against the Appellant by such
employer.
[70] This
issue of whether the last incident of alleged rape took place during
2002 or 2004, was the subject
of evidence given by Mr Girpal, the
Appellant's attorney referred to
supra,
and in
cross-examination of the nature of instructions given by the
Complainant to Mr Girpal, the issue became, to say the very
least,
extremely clouded. Not only the Complainant, but also Mr Girpal gave
unsatisfactory explanations for these discrepancies,
and on the
record it appears, to say the very least, that Mr Girpal attempted to
place misleading evidence in this regard before
the Court. When
Complainant was confronted with this issue, and especially her
inconsistent version thereof, she became hostile,
unco-operative, and
generally gave evidence which could be described as unsatisfactory
and questionable.
[71] It
should be considered that the Complainant' s version as to the last
occurrence of alleged rape was
recorded in pleadings filed on behalf
of the Complainant, as testified by Mr Girpal, and was part of the
charges against the Appellant
during the disciplinary proceedings at
Denel which commenced late in 2004. The Complainant's inability to
recall the fact whether
or not the last alleged rape occurred during
200? or 20 0 4, at the time when she instructed her attorney and
filed a complaint
resulting in disciplinary proceedings against the
Appellant towards the end of 2004, can therefore not be ascribed to a
memory
loss due to the lapse of time. No acceptable explanation was
provided for this discrepancy, which, in my opinion, is of a material
nature. If the Complainant alleges that she was raped in 2004 and
instructs her legal representatives as such at the end of 2004,
and
persist in such an allegation leading to disciplinary proceedings
against the Appellant at the end of 2004 , the fact that
she then
testifies that the last occurrence was in 2002 should raise the
proverbial red flag. In the Court
a quo,
however,
Complainant persisted in her evidence that the last occurrence was
2002, and both the Complainant and Mr Girpal's attempts
to explain
away the reference to 2004 during the disciplinary proceedings and
the pleadings initially filed by the Complainant,
is so
unsatisfactory as to be dismissed as being simply untrue. I find it
highly improbable that Complainant would not be able
to recall
whether or not the last alleged rape occurred during 2002 or 2004.
[72]
Secondly, the evidence relating to the
alleged first occurrence of rape which, according to the Complainant'
s evidence was at Loftus
Versfeld, also raise serious questions upon
close scrutiny. The Complainant testified that she was forcefully
penetrated by the
Appellant, resulting in injuries in her vagina and
subsequent bleeding. The graphic detail of this alleged occurrence as
testified
to by the Complainant, leaves the impression of a brutal
sexual assault culminating in injuries with long term effects for the
Complainant. However, considering this evidence against the totality
of all the available evidence, the following should be considered:
[
7
2.1] There were clearly
no visible signs of the severe alleged trauma which the Complainant
must have suffered shortly before when
the Complainant and the
Appellant left the premises where such occurrence allegedly took
place, with reference to the evidence
in this regard concerning the
security guards at the premises. A certain Mr Marius van Coller
testified that the Appellant, accompanied
by the Complainant, arrived
at his office at the Air force base Waterkloof and he was informed
then that they were at Loftus Versfeld
earlier that morning. Mr van
Coller did not notice anything untoward regarding the Complainant.
This evidence was never challenged
by the State. Considering the
nature of the alleged incident as testified by the Complainant, it is
highly improbable that she
would present without any visible signs of
the alleged traumatic incident. Furthermore Mr Gerhard van Staden,
who was called as
a witness by the State, also testified that he saw
the Complainant upon the return of the Complainant and Appellant from
Loftus
Versfeld. Mr V also did not notice anything untoward regarding
the Complainant and when he enquired from her as to the trip that
morning, she only remarked that the place was
"pretty'.
The
Complainant did not then report the alleged injuries to any medical
doctor, and for that matter, to anyone else. In my view,
when the
graphic evidence of the Appellant regarding that incident and her
subsequent trauma and injuries is considered against
the background
of the evidence of other persons with whom she spoke on the same day,
returning from the alleged proverbial scene
of the crime, coupled
with her lack of any immediate medical attention or report in this
respect, it raises a proverbial red flag.
[73]
Thirdly, the Complainant's failure to
report the alleged incidents of sexual harassment, rape and indecent
assault should be closely
scrutinised and the Complainant's
explanations why such occurrences were not properly and/ or timeously
reported, should be carefully
considered in the light of the
available evidence and the explanations in that regard proffered by
the Complainant. In my opinion,
this issue raises numerous questions
on all the available evidence, but I will deal with what I regard as
the most important issues
as follows:
[
7
3.1] The Complainant
testified that, shortly after the alleged rape incident at Loftus
Versfeld, she telephonically contacted Mr
Langer to report the
alleged incident to him. Mr Langer was in a senior position to the
Appellant. According to her evidence, he
undertook to call her back
but never called. Mr Langer denied this during his evidence and the
issue of whether or not the Complainant
telephonically contacted Mr
Langer and made a complaint in this regard, was therefore in dispute
at the trial. I respectfully disagree
with my learned-colleague
Potteril J. that the evidence of Mr Langer in this regard could
summarily be dismissed solely on the
principle that Mr Langer and the
Appellant, as well as their respective families, knew each other and
went on weekends together.
The mere fact that a witness is familiar
to an accused,
per se
does not render such a witness's
evidence as unreliable where it is contradicted by any evidence of
the Complainant. It must further
be considered in the light of the
fact that certain of the witnesses called on behalf of the State
referred to Mr Langer as a "fair"
person and, on all
accounts, there is no reason on the evidence as a whole to expect Mr
Langer to commit perjury for the benefit
of he Appellant. Apart from
this it appears from the available evidence that it was only during
the trial in the Court a quo that
Complainant averred for the first
time that she attempted to report to Mr Langer;
[73.2] However, the Complainant's
evidence that she reported the incident to Mr Langer in itself
carries a measure of inconsistency
in that, insofar as she was
criticised by Counsel for the Appellant during cross-examination for
not initially complaining about
the alleged conduct of the Appellant,
which was of an extremely serious nature, she attempted to explain
away her failure to report
on the basis that she would be subjected
to victimisation by her immediate family and community, based on
their religious principles
and that she feared losing her employment
should she report the matter, and that she feared victimisation by
the Appellant based
on her evidence that he threatened her with
murder should she complain. Considering these reasons as advanced by
the Complainant,
the fact that she, on her own version, contacted Mr
Langer to report the incident carries a measure of contradiction;
[
7
3.3] The Complainant
testified that she (3ventually reported to Trudie
van
der
Westhuizen, a psychologist, that she was sexually assaulted by the
Appellant. A scrutiny of the evidence of the Appellant regarding
her
interaction with Mrs van der Westhuizen, and the evidence of Mrs
Trudie van der Westhuizen, again disclose various discrepancies.
During the evidence of Mrs
van
der Westhuizen, it transpires
that she made two different statements pertaining to the reports made
to her by the Complainant which
statements were inconsistent. She
further testified that the Complainant initially consulted her
relating to marital problems and
inter alia
complained
to her that the Complainant’s husband submitted the Complainant
to forceful intercourse. Considering the fact that
this witness
conceded during cross examination that she provided
contradictory
evidence,
and the various discrepancies between
her evidence and the evidence of the Appellant, the evidence of Mrs
van der Westhuizen can
hardly the described as supportive of
Complainant' s version. However, considering the nature of the
relationship between the Appellant
and Mrs
van
der Westhuizen,
and the intimate nature of discussion between them since the
Inception of their interaction with each other, the
fact that the
Appellant failed to report the serious incident which allegedly took
place at Loftus Versfeld to Mrs van der Westhuizen,
either
immediately after the occurrence thereof or at least within a
reasonable time thereafter, again raise serious questions
on the
issue of probability;
[
7
3.4] The Complainant’s
evidence that she failed to report the Appellant's alleged conduct
for fear of victimisation based
on religious considerations should
also be carefully considered in the light of the available objective
evidence. The Appellant
testified that she would be regarded in her
community as someone who elicited this alleged kind of conduct by the
Appellant, and
that she feared that her children will be taken away
from her. I have great difficulty to accept that the Complainant, who
grew
up in South Africa and resides in an open society, would believe
that her children will be “
taken away”
by her
husband in such circumstances. Save for this fact, according to the
evidence the Complainant and her husband in fact did
get divorced
during the period of time whilst the Appellant was allegedly sexually
assaulting the Complainant which leads to the
inevitable conclusion
that this factor could therefore not have been a ground for her
silence after the divorce. Yet the Complainant
persisted in her
failure to report.
[74]
On
the Complainant' s version, she was not only raped at Loftus Versfeld
during the occasion referred to
supra,
and other occasions as
testified, but over a protracted period of time sexually assaulted at
the offices of the Appellant. An analyses
of the evidence of the
Complainant shows that most of these alleged incidents, according to
the Complainant, took place during
office hours whilst there were
other personnel present. A number of the previous colleagues of both
the Complainant and the Appellant
were called as witnesses, some on
behalf of the State and others on behalf of the Appellant. Not one of
these witnesses, either
in their evidence in chief or cross-e
examination, could provide any corroboration of these alleged
occurrences.
[75]
In summary, the Complainant's evidence
is that she was sexually assaulted and raped by the Appellant on
various occasions during
a time period which span from August 1988
until June 2002, (June 2002 being her version during the trial in the
Court
a quo),
one
occasion being at Loftus Versfeldt resulting in injuries and
bleeding, the other occasions being at the offices of the Appellant.
Notwithstanding this, and all the evidence which the Complainant gave
relating to these incidences, the places where it occurred,
the
sequelae
thereof,
and the persons she consulted thereafter including Mrs van der
Westhuizen as well as Dr van Schalkwyk, no corroborative
evidence of
any nature whatsoever was presented to substantiate any one of the
alleged incidents. I find this somewhat remarkable.
[
7
6]
What further transpired during the course of the proceedings in the
Court
a quo,
was namely that the Complainant was the
victim of a traumatic marriage relationship, subjected to forceful
sexual intercourse by
her husband, was previously involved in a motor
vehicle accident of a serious nature, that she suffered from
depression, migraines
and epilepsy, and consulted Mrs van der
Westhuizen primarily and initially for the emotional problems she
experienced in her marital
relationship. However, on a perusal of the
Record of the proceedings in the Court
a quo
it appears
that towards the end of the trial, the Complainant was reconciled
with her estranged husband and again living with him.
These facts
warrant, in my opinion, an inference of an emotionally fragile person
whose evidence should be considered with caution.
[77]
The Appellant denied the
allegations. The Appellant was cross-examined and remained consistent
with his denial. There
is no basis upon which the evidence of the
Appellant can be held to be inconsistent or improbable or simply
untrue. The Appellant'
s efforts of ascribing a motive to the
accusations of the Complainant is not a factor to be considered in
summarily dismissing
the remainder of the Appellant' s version.
Vide:
State v Lotter 2Q08 (2) SACR 595 (CJ par [38] and [39]
[78]
Considering
the aforesaid I am of the opinion that the State failed to prove
beyond reasonable doubt that the Appellant is guilty
of the charges
and that the appeal therefore should succeed.
P.
A. VAN NIEKERK
ACTING
JUDGE OF THE GAUTENG DIVISION, PRETORIA
CASE
NO: A611/11
HEARD
ON: 24 November 2017
FOR
THE APPELLANT: ADV. J.J. STRIJDOM SC
INSTRUCTED
BY: Rianie Strijdom Prokureur
FOR
THE RESPONDENT: ADV. C. PRUIS
INSTRUCTED
BY: Director of Public Prosecutions
DATE
OF JUDGMENT: 9 March 20 18
[1]
S v Hadebe and Others
1997 (2) SACR 641
(SCA)
a
t 655e-f
[2]
S v Monyane and Others
2008 (1) SACR 543 (SCA)
[3]
Supra
at 341b
[4]
Page 60 lines 6-7
[5]
Page 164 lines 10-25
[6]
Page 122 line 8
[7]
Page 247
[8]
S v Xaba
1983 (3) SA 717
(A)
7308 -C
[9]
Page 495
[10]
Page 490 lines 12 and further
[11]
Page 1317 lines 5 and further