About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Durban
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Durban
>>
2011
>>
[2011] ZAKZDHC 62
|
|
S v Mkhize (CC55/11 D) [2011] ZAKZDHC 62; 2012 (2) SACR 90 (KZD) (8 December 2011)
IN
THE KWAZULU-NATAL HIGH COURT
DURBAN
REPUBLIC
OF SOUTH AFRICA
CASE
NO.CC.55/11 D
In
the matter between
THE
STATE
and
THANDUKWAZI MKHIZE
REASONS FOR JUDGMENT AS REQUIRED IN TERMS OF SECTION
227(7) IN AN APPLICATION IN TERMS OF
SECTION 227(2)(a)
OF THE
CRIMINAL PROCEDURE ACT 51 OF 1977
, AS AMENDED
HENRIQUES J.
[1] This is an application in terms of
section 227(2)(a)
of the
Criminal Procedure Act 51 of 1977
, as amended brought by Mr
Pillay on behalf the accused. In support of such application, the
accused seeks to rely on the factors
listed in
section 227
subsection(5) specifically on sub-sections 5 (a), (c), (e), (f) and
(g).
[2] The basis for such application is that Mr Pillay
seeks to cross-examine and question the complainant on an incident
of a sexual
nature which is alleged to have occurred a week or two
after the arrest of the accused and the alleged rape of the
complainant
on 19 February 2011.
[3] He made the following submissions, in regard to the
factors listed in sub-section 5 which the accused relied on, namely:-
[3.1.] Among the charges, is one of an alleged rape of
the complainant- issues of the complainant’s sexual activity
and/or
promiscuity are thus relevant to the charge. This is more so,
he submitted in light of the fact that the accused says that he did
not have sexual intercourse with the complainant and that her parents
instructed her to falsely implicate him. Accordingly, questions
relating to the incident of alleged sexual activity which occurred
after the alleged rape was relevant to a fact in issue.
[3.2.] He also submitted that it would be in the
interests of justice specifically the accused’s right to a fair
trial that
the questions be allowed as they were fundamental to the
accused’s defence and consequently were relevant. In addition,
he submitted that such questions would explain the presence of semen
or any injury to the complainant and was thus relevant to a
fact in
issue.
[3.3.] In addition, he submitted, the questioning in
cross-examination would relate to a particular incident of a sexual
nature
which happened closely in time to the alleged rape and
appeared to be perpetrated by somebody who lived in the area and who
was
known to the complainant. This was in line with the accused’s
defence that he did not rape the complainant and that she falsely
implicated him on the instructions of her parents.
[3.4.] He submitted that insofar as the rights of the
accused and the complainant were concerned, a balance must be struck
between
the competing interests. The potential prejudice to the
complainant’s personal dignity and right to privacy was
outweighed
by the accused’s interests – namely his right
to a fair trial and to confront his accuser.
[4] Advocate Smith, who appeared for the State, opposed
the application and submitted that the questions were not relevant
and thus
the application ought to be dismissed. She submitted that in
terms of the evidence adduced, the alleged rape was reported on the
same day it occurred, and it was thus improbable that the complainant
would have had a sexual encounter with anyone else so soon
after the
alleged incident. She submitted that even though she could not argue
that the incident was not sufficiently closely linked
in time to the
alleged rape, it was not in the interests of justice to allow the
questioning and that the prejudice to the complainant
outweighed the
rights of the accused. This, she indicated, ought not to be
influenced by the fact that the matter was being heard
in camera.
[5] She further submitted that the evidence in relation
to the presence of semen was not before the court yet and submitted
that
in light of the fact that the complainant was examined on 19
February 2011, the presence of semen ought not to be a factor to be
considered for an alleged sexual encounter a week or two after the
alleged rape.
Legal Position
[6]
Section 227(2)
reads as follows:
“
No evidence as to any previous sexual
experience or conduct of any person against or in connection with
whom a sexual offence is
alleged to have been committed, other than
evidence relating to sexual experience or conduct in respect of the
offence which is
being tried, shall be adduced, and no evidence or
question in cross-examination regarding such sexual experience or
conduct, shall
be put to such person, the accused or any other
witness at the proceedings pending before the court unless –
(a) the court has, on application by any party to the
proceedings, granted leave to adduce such evidence or to put such
question;
or
(b) such evidence has been introduced by the
prosecution.”
[7] Sub-section 4 enjoins this court to grant such an
application only if it is satisfied that such evidence or questioning
is relevant
to the proceedings before it. In determining relevancy,
the section mandates the court to consider whether the evidence or
questioning
:-
(a) is in the interests of justice, with due regard
to the accused’s rights to a fair trial;
(b) is in the interests of society in encouraging the
reporting of sexual offences;
(c) relates to a specific instance of sexual activity
relevant to a fact in issue;
(d) is likely to rebut evidence previously adduced by
the prosecution;
(e) is fundamental to the accused’s defence;
(f) is not substantially outweighed by its potential
prejudice to the complainant’s personal dignity and right to
privacy;
or
(g) is likely to explain the presence of semen or the
source of pregnancy or disease or any injury to the complainant,
where it
is relevant to a fact in issue.
[8] Sub-section 6 provides that the court shall not
grant such an application if in its opinion, the evidence or
questioning is
sought to be adduced to support an inference that by
reason of the sexual nature of the complainant’s experience or
conduct
the complainant is “
more likely to have consented to
the offence being tried or is less worthy of belief
. “
[9]
Section 227
has undergone some changes since its
initial enactment, the most recent of which has been in terms of the
Criminal Law (Sexual Offences and Related Matters) Amendment Act 32
of 2007
. The reasoning behind the section is clear. There has been a
recognition by our legislator that victims of sexual assault often
suffer “secondary sexual assault” at the hand of the
courts and agencies responsible for prosecuting such offences
and is
linked to gender bias and rules of evidence regulating the
prosecution of such offences.
[10] The legislation has recognised that the procedural
and evidential rules often exacerbate the trauma a rape victim
experiences
from reporting a rape and enduring a trial. This has made
victims of rape reluctant to report a rape and testify in court.
Gradually
there has been a shift in public and judicial opinion about
procedural and evidential rules employed and the need to advance the
constitutional imperative of gender equality.
[11] In my view, the section was designed primarily to
protect complainants from unnecessary and irrelevant questioning and
to
protect the privacy and dignity of complainants while
simultaneously ensuring that there is still a full and thorough
ventilation
of the issues. If the questioning is relevant to an issue
in the trial depending on the defence proferred, then it ought to be
allowed. I am fortified in this view by the remarks of Heher AJA in
the decision of
S v M
2002(2) SACR 411 (SCA)
albeit
that these remarks were made prior to the 2008 amendment. In
addition, in this matter, what this court also has to bear
in mind is
the constitutional imperative in
section 28(2)
, namely that
“the
rights of
a child are of paramount importance.”
[12] The test to be applied is thus one of relevance.
How does one determine what is relevant? In
R v Matthews and
Others
1960 (1) SA 752
(A) at 758 A –B, Schreiner JA
remarked as follows, “
Relevancy is based on a blend of logic
and experience lying outside the law.”
[13] Subsection 5 is of some assistance in determining
what is relevant. In my view though, in considering what is relevant,
I must
have regard to the facts of the matter before me.
Consequently, I must have regard to the evidence adduced thus far
namely the
medical evidence, the complainant’s evidence and the
accused’s defence.
[14] The complainant testifed that she was raped by the
accused who was known to her, by him inserting his penis into her
vagina.
No evidence of previous sexual conduct was led. In addition,
the evidence of the district surgeon who examined her a few hours
after the incident, was that even though her hymen was intact there
was inter alia bruising which was indicative of sexual assault.
There
also did not appear to be any evidence of previous sexual conduct.
[15] The accused denies raping the complainant and says
her parents told her to falsely implicate him. The questions sought
to be
adduced appear to relate to an incident of a sexual nature
which occurred a week or two after the alleged rape. The impression I
gain from the submissions made by Mr Pillay and the basis of the
defence is that the questioning may either constitute an attack
on
the complainants credibility and /or that one is to infer that she
ought not to be believed regarding the alleged rape as she
is alleged
to have been involved in an encounter of a sexual nature a week or
two after the alleged rape.
[16] If the questioning sought to be adduced is merely
to attack her credibility and no more, then the application cannot
suceed.
This is specifically what
section 227
was enacted for.
[17] If the questioning to be adduced is to support an
inference that she cannot be believed, then the application must
likewise
fail as it is struck by the exclusion in subsection 6 (b).
[18] Prior to launching this application, Mr Pillay put
to the complainant the following in regard to the incident which is
alleged
to have occurred a week or two after the alleged rape, it
being common cause that the accused was arrested on the day of the
alleged
rape, being the 19 February 2011. This was after establishing
that the complainant knew one Maceli and Vusi and where they lived.
Question:
Thanda tells me, a week after he was
arrested, Maceli found you in the house with Vusi and you were
putting on your clothes, do
you know anything about that?”
Answer:
No
[19] In my opinion, having regard to the accused’s
defence and the question that was put to the complainant, the
questions
sought to be adduced are for the purpose of supporting an
inference that the complainant’s evidence regarding the alleged
rape is not to be believed or to use the language of the section “
is
less worthy of belief
” as she is alleged to have been
found a week or two after the alleged rape in a house with Maceli’s
husband Vusi putting
on her clothes.
[20] In my opinion, the application must thus fail on
the basis that it falls foul of
section 227(6)(b).
If I am wrong in
that opinion, I now also consider whether the questions sought to be
adduced are relevant in light of the factors
mentioned in
s 227(5)
and the evidence presented thus far.
[21] The application must also fail as the questions
sought to be adduced, in my view, are not relevant. The accused’s
right
to a fair trial would not be infringed should the application
fail. The question has been put to the complainant and she has
answered
same, and the accused would be entitled during the
presentation of his case to testify concerning same and call
witnesses in support
thereof. This would likewise apply to
ss 5(e).
[22] In considering the interests of justice and society
as envisaged in
ss 5
(a) and (b) apart from considering the accused’s
interest I must also consider the complainant’s. Having regard
to
the purpose of the section and the shift in opinion towards
victims of sexual assault, I am of the view that it would not be in
the interests of justice or society.
[23] A balancing of interests likewise applies to the
consideration of relevance envisaged in
ss 5
(f). In light of the
constitutional imperative, the defence raised and the evidence
presented thus far, I am of the view that
the potential prejudice to
the complainant’s dignity and right to privacy outweighs that
of the accused.
[24] The questioning does not in my view relate to a
specific instance of sexual activity which is relevant to a fact in
issue if
one has regard to the accused’s defence.
Traditionally, the section has been invoked (prior to its amendment)
where the defence
is one of consent. Our courts appear more willing
under those circumstances to invoke the section where the questioning
or evidence
goes to the crux of the defence and is not merely
limited to the credibility of the complainant. See in this regard
S
v Zuma
2006 (2) SACR 191
WLD
and
S v Katoo
2005 (1)
SACR 522
SCA.
[25] As regards
ss 5
(d) and (g) are concerned- it is
not relevant bearing in mind that the incident occurred on the 19
February 2011, it was reported
the same day and the complainant was
examined on the same day albeit a few hours after the incident. It
would also not be relevant
in light of the accused’s defence of
a denial. The questions sought to be adduced relate to an alleged
incident which occurred
a week or two after this.
[26] For the reasons mentioned above, I am not convinced
that the questioning sought to be adduced is relevant and
consequently
the application must fail. The application in terms of
s
227(2)(a)
is thus refused.
………………………
..
J.I. HENRIQUES
DATE OF HEARING
OF ARGUMENT 7 DECEMBER 2011
DATE OF JUDGMENT 8 DECEMBER 2011
COUNSEL FOR THE STATE MS E. SMITH
DPP, PIETERMARITZBURG
COUNSEL FOR THE ACCUSED MR T P PILLAY
JUSTICE CENTRE, DURBAN