About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
1987
>>
[1987] ZASCA 116
|
|
S v Nel (118/87) [1987] ZASCA 116; [1988] 1 All SA 363 (A) (29 September 1987)
SAFLII Note:
Certain personal/private details of parties or witnesses have
been redacted from this document in compliance with the law and
SAFLII
Policy
IN THE SUPREME COURT OF SOUTH
AFRICA
(APPELLATE DIVISION)
In the appeal of:
DAVID
JOHN NEL
Appellant
versus
THE
STATE
Respondent
CORAM
: Corbett, Viljoen et
Nestadt, JJA
DATE OF APPEAL
: 11
September 1987
DATE
OF JUDGMENT
:
1987-09- 30
J U D G M E N T
CORBETT
JA:
In May 1984 appellant in this
matter was convic-ted of rape in the Natal Regional Court (sitting in
Durban) and sentenced to five
years' imprisonment. The conviction
related to an incident which took place in the early hours
/
of
2
of
Saturday, 25 February 1984. The appellant appealed to the Natal
Provincial Division ("the NPD") against both his conviction
and the sentence imposed. His appeal was heard on 21 March 1985. The
Court dismissed the appeal. On 21 October 1985 appellant made
application to the NPD (i) for leave to make application to the
Appellate Division for the setting aside of appellant's conviction
and sentence and the remittal of the case to the trial court for the
hearing of fresh evidence; (ii) for leave to appeal to the
Appellate
Division against conviction and
sentence;
and (iii) for condonation of the lateness of the applica-tion for
leave to appeal
(I
refer in this regard to
the amended order prayed by the appellant). The Court, fol-lowing the
procedure indicated in
S
v
Turner
1975 (3) SA 285
(N), granted the
application as prayed. It is in terms of this order that the matter
now comes before us.
/
At
3
At
the hearing in this Court appellant's counsel conceded that on the
evidence placed before the Regional Court there was no valid
ground
for interfering with the conviction. He, therefore, confined his
argument to the question of remittal for the hearing of
fresh
evidence and the question of sentence.
I
shall
deal first with the remittal issue, but before doing so it is
necessary to survey the evidence adduced before the Regional
Magistrate and his reasons for convicting the appellant.
The
complainant in the case is a Miss S.O., whose age at the time of the
trial was 25 years. She then worked as a sales representative
for a
photographic company. She had never been married, but had a son born
out of wedlock, aged seven years. She lived in the Berea,
in Durban.
Her version of what happened, as given in evidence at the trial, is
the following.
/
On
4
On the
evening of Friday, 24 February 1984, she went out with appellant at
his invitation. The complain-ant was spending the weekend
with her
parents, who lived at Cowies Hill, and the appellant came there in
his "bakkie" to fetch her at about 20h30.
At that stage
they had known one another for approximately eight months. He was not
her "boy friend" â she in fact
had another "boy
friend" at the time â but they moved in the same social
circles and often met on social occasions
in the company of common
acquaintances. On the evening in question complainant and appellant
first went to the Imperial Hotel in
Pinetown for a drink. They stayed
there for about an hour and a half, but because none of their friends
were there they left and
went on to the Rugby Hotel, where they found
some of their friends and again had a drink. They stayed there until
about midnight.
They then decided to go on to a night club in Durban.
The appellant thereafter discovered
/ that
5
that his
vehicle was low on petrol and they consequently went to the premises
where appellant worked (he was in the busi-ness of
repairing motor
cars, panel-beating, etc) at number 64, Railway Road, Seaview in
order to put in some petrol.
Upon
arrival at the premises in Seaview the appellant stopped in a yard in
which a vehicle, described by the complainant as a white
"Kombi"
was parked. (It would appear from appellant's own evidence that the
premises belonged to a friend of his, who
permitted appellant to
main-tain a workshop in the yard behind the house.) The appel-lant
alighted, while complainant stayed in
the "bakkie".
Complainant
noticed appellant go to a shed,
where she presumed the petrol was kept. Shortly thereafter appellant
went to the Kombi, opened the
middle door (which gives access to the
back portion) and sab on the floor with his legs dangling outside. He
commenced smoking
a dagga cigarette. The complainant remained sitting
in the
/ "bakkie"
6
"bakkie"
for some time, but then, feeling cold and irritated, went over to the
Kombi, entered it and sat at the back on
what appeared to be a
mattress,
waiting
for the
appellant to f
inish
his
dagga cigarette. She waited for about ten minutes and in the course
of waiting rested her head in her hands, closed her eyes
and relaxed.
The appellant then suddenly assaulted her. He pushed her down onto
the mattress and forcibly held her down. He pulled
up her skirt,
"ripped off" her stockings and tried to touch her private
parts. The complainant screamed and struggled.
She managed to escape
from the Kombi and ran to the house. The lights of the house were on
and the back door was open. When the
complainant reached the back
door she found a lady standing there. This lady, it transpired, was a
Mrs Michelle Schoe-man, sister-in-law
of the proprietor of the house.
The complainant, thinking that Mrs Schoeman was the owner of the
house, asked Mrs Schoeman whether
she could use the
/
telephone
7
telephone
to speak to the police "because the appellant was trying to rape
her". Mrs Sehoeman replied that it was not
her house and that
she would go to ask her sister-in-law. The complainant waited in the
kitchen near the telephone. The appellant
then came into the house
and asked the com-plainant "what she was trying to prove".
Complainant replied that she had
no intention of having a sexual
relationship with him and felt that the police need to be told about
it. Ap-pellant then "brutally
grabbed" her round the waist
and pul-led her from the kitchen and down the back steps. The
complainant screamed and shouted
and asked Mrs Schoeman for help. Mrs
Schoeman did not, however, attempt to intervene and appellant took
complainant to the "bakkie",
pushed her in on the passenger
side and went round to the driver's seat. The complainant had an
aerosol "Defence-U" spray
attached to her key-ring. She
took this in her hand and as appellant entered the cab she sprayed
the
/
contents
8
contents
into his eyes. It deterred
him for a few sec
onds
and she made a move to get out of the vehicle, but he pushed her in
again and hurled abuse at her. He grabbed the aerosol can
from her
and tried to spray her eyes, but without success. With her still
crying and screaming, appellant drove off at high speed.
He reached
the N3 freeway and turned into it, proceeding in the direction of
Durban. At a certain point appellant stopped the vehicle
at the side
of the road and came round to the passenger side of the vehicle. The
complainant hold onto the steering wheel to prevent
him pulling her
out of the car. She screamed and asked him please to take her home
and "not to be silly and try and rape her".
Appellant then
said that he had always had "this wild desire" to have
sexual intercourse with her. He took a blanket
from the "bakkie"
and laid it down in some tall grass near the edge of the freeway. He
pulled the complainant from the
vehicle, led her to the blanket and
threw her down. He pulled her
/ panties
9
panties
off and had intercourse with her. At a certain point the appellant
also attempted to have "anal sex" with the
c
omplainant,
but she managed to
turn
over
and
kick him of her. She then jumped up and ran across the
freeway and stood in the other carriage-way, ie that in which traffic
proceeded
away from Durban in the direction of the airport. Almost
immediately a motor car approached and stopped. In it were two men, a
Mr Minnaar and his son. Complainant explained to them that she had
been raped and pleaded with them to take her with them, away
from the
appellant who was "still in the grass beginning to stand
up".
Minnaar agreed and let her into the motor car.
Complainant's
evidence then proceeds:
"The
gentlemen then drove to the next glide-off,
I
think
it goes to Mobeni or something like that, and they stopped there and
the gentleman who was driving the car put his arm out
to me and held
my hand very tightly and in Afrikaans told me that they were going to
pray for me and we stopped there for five
/ minutes
10
minutes
and they prayed for me and
I
was absolutely
hysterical. We then drove to the nearest police station which was the
charge office at Louis Botha Airport."
At Louis
Botha airport the police told the com-plainant that the charge would
have to be laid at the Pine-town police station because
the alleged
crime was committed in "their area"; but said that they
would telephone her parents so that they could fetch
her. The
complainant waited until her father came to the airport. She told him
what had happened. They went home and complainant
changed into some
warmer clothing. Her mother then took her to the Pinetown police
station, where complainant laid a charge and
made a statement. A
detective took her to the scene of the crime and there she pointed
out the spot where it had all happened.
By this time it was about
08h00 on 25 February 1984. They found complainant's stockings about
100 metres up the road from the place
where the rape occurred. At
10h55 on the same day complainant was examined
/ by
11
by the
district surgeon. The complainant estimates that the rape occurred at
about 02h30.
The other
witnesses called by the State were Mr Minnaar, Mrs Schoeman and the
district surgeon, Dr Noche. Minnaar, it appeared,
was a lecturer in
electronics and mathematics at the Technikon in Pretoria. He also had
a BA degree, for which he had taken psychology
as a major sub-ject.
At the Technikokon he was a leader of the Students Christian
Association. In evidence he stated that as he
was driving along the
N3 highway at about 02h30 on 25 Februa-rie 1984 he suddenly saw, in
the light of his headlamps, a young lady
standing in the middle of
the freeway, ob-viously intent on causing him to stop. He stopped and
she came over to the motor car.
She asked them please to help her as
she had just been raped. She wanted to be taken to the police station
to lay a charge. They
picked her up and took her to Louis Botha
airport. He confirmed
/ having
12
having
prayed with the complainant by the side of the road.
He stated:
"I
said
I
don't know much
about these things but from wbat I've heard and read, the trauma with
the actual court case can sometimes be more
severe that the actual
deed. And she must carefully consider it and I actually suggested
that we pray about it.
Yes?--
And
I
do particularly remember that when we
prayed
I
offered her my hand and she really
sort of took hold of it as a person that is emotionally very
disturbed."
When
complainant first approached them he gained the im-pression that she
was obviously "very upset", "very, very
hurt and very
upset. Very unhappy".
Mrs
Schoeman described in evidence her perception of what happcned at 64
Railway Road on the night of 24/25 February 1984. They
had just
finished watching video films and her sister-in-law was putting the
baby to sleep. The witness was in the kitchen. She
then heard
screaming outside. She went to the back door, but saw nothing and
/ put
13
put
it down to the next door neighbours fighting. She went back inside. A
few minutes later she had another look. She then heard
a female shout
"Please help me get out of here.
I
don't
want to be here". She saw a female open the door of a white
vehicle parked in the yard, climb out and come running towards
her.
This female was the complainant. The complainant asked if she could
use the telephone. Mrs Schoeman replied that she would
ask her
sister-in-law. Thereafter she decided not to disturb her
sister-in-law and was going to tell the complainant to go ahead
when
she saw the appellant (whom she knew, he being a friend of her
husband's) holding the complainant round the waist and carrying
her
out of the back door. The complainant was shouting and struggling to
get away from him. That was all she saw. Under cross-cxamination
by
the attorney for the defence, Mrs Schoeman stated that she did not
recall the complainant saying that she wanted to
/ use
14
use the
telephone because the appellant was trying to rape her.
The
district surgeon, Dr Noche, described the medical examination of the
complainant which he conducted on 25 February 1984. He
knew that the
complainant was the alleged victim of a rape. He confirmed and handed
in the written report compiled by him at the
time. During the
examinabion he found a small bruise on her right arm, a bruise on her
left thumb and a scratch on the front part
of her left leg. There
were no recent genibal injuries, but the witness stated that one
would not expect to find such injuries
in a woman who had had a
child.
The
appellant gave evidence in his defence.
He was at
the time 25 years of age and unmarried. Ho confirmed that he had
known thc complainant for approxi-mately a year. He deposed
to a much
closer and more inti-mate relationship between them than had been
described by
I
the
15
the
complainant in her evidence. He etated, for instance, that one night
after a party the complainant came home with him and that
they had
sexuai intercourse there. He also described an occasion whcn the
complainant came to his flat early one morning, while
he was sleeping
with his "girl-friend", got into bed with them and started
making sexual advances to him.
I
might
mention in passing that the first of these two episodes was put to
the complainant in cross-examination. She vehemently denied
it. The
other was not put to her. The appeilant stated further that on the
first of these two occasions he was "very drunk"
and that
consequently he was unable to achieve a full erec-tion. The
complainant mocked him about this later.
Turning to
the night of 24/25 February, the appellant stated that he and the
complainant went out together at her invitation. His
account of the
visits to the Imperial Hotel and the Rugby Hotel tallies more
/ or
16
or less
with the complainant's, save that, according to him, they had
substantially more to drink at each of these venues than the
complainant had been prepared to admit and that between the Imperial
Hotel and the Rugby Hotel they shared a dagga cigarette. The
complainant became more and more inebriated as the evening wore on.
She mock-ed him in front of others about what was termed his
"sexual
prowess", or rather the lack thereof, and towards the end of the
evening, at the Rugby Hotel, she poured a mug
of beer down his back.
He decided then that it was time to take her home (to Cowies Hill).
They set off in his "bakkie",
but at a certain point she
"yanked" his steering-wheel so that he was in effect guided
onto the freeway to Durban. He
then decided to go to his workshop at
Seaview to put in additional petrol.
At 64
Railway Road he decided, before getting the petrol, to smoke a dagga
cigarette. While he was
/ sitting
17
sitting
in the doorway of the Kombi, the complainant entered thc vehicle and
went to lie on a bed which was fitted into the rcar
portion of the
Kombi. She refused "something to smoke". Having finished
his cigarette, the appellant took of f his clothes,
closed the door
of the Kombi and climbed into the bed. He just "lay back"
on the bed. The com-plainant then "went
claustrophobic" and
started to scream "Let me out of here,
I
don't
want to be here". He tried to pacify her, but without success.
He opened the door and she jumped out. He heard hcr creating
a
"scene" at fhe house. He pulled on his trousers, rushed
into the house, grabbed the complainant and took her out. He
put her
into the "bakkie". As he turned to go to get thc petrol the
complainant sprayed him with tho anti-assault spray.
He wrested it
from her grasp and sprayed her in retaliation. He then drove off
without having filled up with petrol. He proceeded
along the N3
highway, heading for Cowies Hill.
/ While
18
While they
were driving along the complainant slipped off her stockings (at the
Imperial Hotel she had shown him that there was
a small hole in the
one stocking) and threw them out of the window. He stopped his
vehicle about 400-500 metres further on and
reversed back to look for
the stockings. As he put it, he wanted to get her home "lock,
stock and barrel". He did not
succeed in finding the stockings.
By that stage tho complainant had quietened down. He stopped the
vehicle and alighted. He took
out a rug and laid it down next to the
freeway and sat down upon it. The complainant shouted from the bakkie
"Let's go home".
He told her that if she wanted to go home,
she could drive herself and he would retrieve the vehicle later.
After sitting on the
rug for about fifteen minutes he went back to
the bakkie and found the complainant slumped over the steering-wheel.
He then picked
her up - she came quite willingly - and carried her to
the rug. She lay
/ there
19
there, as
he put, "spread-eagled". He stood there mastur-bating in
order to achieve an erection. The complainant said
that if he had
intercourse with her she would "have him up" for rape.
There followed a conversation of a coarse nature
and, thereafter,
while appellant was still standing there the complainant got up and
ran across the freeway. A car stopped. He
shouked to her, but there
was no reply. She appeared to have driven off in the car. Later that
morning he telephoned her home and
as a result of that call the
detectives came to see him.
Two other
defence witnesses were called: a Mr Nigel Holmes and appellant's
brother, Mr Mark Nel. They both deposed, with a certain
amount of
circumstantial detail, to an intimate relationship between
complainant and the appellant.
The
Magistrate accepted the evidence of the com-plainant and rejected
that of the appellant. He indicated
/ in
20
in his
judgment that he was conscious
of
the need for special caution in a case involving a
sexual
assault when the Statc relies on the evidence of a single witncss.
His comments upon the complainant were as
follows:
"The
first and lasting impression of her is that she is an attractive,
well-groomed and intelligent woman who must be in demand
by the
majority of men in her age group. She gave her evidence ex-tremely
well. Without much guidance from the prosecutor she gave
an
intelligent, coherent and detailed account of the whole incident from
beginning to end. Under cross-examination she remained
calm and
frankly admitted that she has an ille-gitimate child and that she has
smoked dagga before. She did not contradict her-self
on any important
issue and she has been corroborated in material respects by Mrs
Schoeman in respect of the incident at the house,
before the alleged
rape, and by Mr Minnaar in respect of the events thereafter. The
circumstantial evidence relating to the screaming,
the missing
stockings and panties, her injuries and the incident with Mr Minnaar,
supports her evidence and places a large question
mark over that of
the accused.
To sum up,
the Court's impression was that she was a most impressive witness."
/ He
21
He
referred also to Dr Noche's confirmation that she had had the bruises
testified to by her, He emphasized that there was no sign
that the
complainant had exaggerated or was biased against the appellant; and
that there was no apparent motive for her to falsely
accuse the
appellant. The evidence of Minnaar and Schoeman had not been
seriously challenged by the defence and was accepted without
hesi-
tation.
Of the
appellant the Magistrate had the following
to say:
"The
accused, on the other hand, was an arrogant, aggressive, cheeky and
argumentative witness. He was also extremely talkative
and on
occasions evasive. It soon became apparent that he was anticipating
questions and that he had an answer ready for most of
them. He must
have realised that there were several serious incriminating features
in the State's case and he was nob averse to
inventing evi-dence in
order to try and find innocent ex-planations for it. Some of those
explanations were, to put it mildly,
ridiculous."
/
He
22
He then
proceeded to give a number of examples of improbabie explanations and
statements.
As to the
two defence witnesses the Magistrate said that they â
"....
left the distinct impression that they were biased in favour of the
accused".
He
accordingly found that the charge of rape had been established and
convicted the appeliant. I shall deal later with the Magistrate's
reasons for imposing the sentence of five years' imprisonment.
On appeal
to the NPD appellant's counsel stated that he did not rely upon the
appellant's evidence or upon the defence evidence,
but argued that on
the complain-ant's own evidence there was a reasonable possibility
that there had not been penetration. This
argument was rejected by
the Court, which held that the State had proved beyond reasonable
doubt that there was penetration.
/
Against
23
Against
this background
I
now turn to the
application to lead further evidence. The original application was f
or leave to lead the evidence of Dr Reuben
Maller, Barbara Fisher,
Joanne Nel, Sharon Badenheuer, Helga Bromfield and Brian Nel; and for
leave to recall the com-plainant
for further cross-examination; and
with leave to the State to call such further evidence as might be
con-sidered necessary after
the cross-examination of the
com-plainant. Affidavits by the persons listed were annexed to the
application. The State filed affidavits
in oppo-sition to the
application and this resulted in the appli-cation gaining momentum by
the addition of four more pros-pective
witnesses.
Broadly-speaking
the evidence which it is sought to adduce from these witnesses falls
into three categories:
evidence
of the complainant's character, personality and lifestyle and of the
relationship between the parties prior to 24 February
1984;
evidence
relating to a spermatozoa test that was done and showed a negative
result;
/ (3)
evidence
24
(3)
evidence of the post-trial conduct of the complainant, which suggests
that no rape took place.
The power
of this Court, under circumstances such as these, to remit a case to
the court of first instance for further hearing,
with instructions as
regards the taking of further evidence, is governed by sec 22 of the
Supreme Court Act 59 of 1959, as amended.
It is a power which the
Court exercises only in exceptional cases for â
"It
is clearly not in the interests of the administration of justice that
issues of fact, once judicially investigated and
pronounced upon,
should lightly be re-opened and amplified. And there is al-ways the
possibility, such is human frailty, that an
accused, having seen
where the shoe pinches, might tend to shape evidence to meet the
difficulty."
(per
HOLMES JA in
S v De Jager
1965 (2) SA 612
(A) at p 613 B). The
possibility of the fabrication of testimony after conviction is an
everpresent danger in such matters (see
R v Van Heerden and
Another
1956 (1) SA 366
(A), at p 372 H - 373A;
S v Nkala
1964 (1) SA 493
(A), at p 497 H;
S v Zondi
1968 (2) SA 653
(A), at p 655 F). For these
/ reasons
25
reasons
this Court has in a long series of decisions laid down certain basic
requirements which must be satistied before an application
for the
re-opening of a case and itg remittal for the hearing of further
evidence can succeed. These were summarized by HOLMES
JA in
De
Jager
's case
supra
(at p 613 C-D) as follows:
"(a)
There should be some reasonably sufficient explanation, based on
allegations which may be true, why the evidence which
it is sought to
lead was not led at the trial.
(b)
There
should be a
prima facie
likelihood of the truth of the
evidence.
(c)
The
evidence should be materially relevant to the outcome of the trial."
In an
appropriate case this Court has the power to relax strict compliance
with the requisite of a "reasonably sufficient explanation"
(see (a) above), but it is only.
in rare
instances that this power will be exercised (
S v Njaba
1966
(3) SA 140
(A), at p 143 H).
/ A study
26
A study of
the reported decisions of this Court on the subject over the past 40
years shows that in the vast majority of cases relief
has been
refused: and that where relief has been granted the evidence in
question has related to a single critical issue in the
case (as to
which see eg
R v Carr
1949 (2) SA 693
(A);
R v Jantjies
1958 (2) SA 273
(A);
S v Nkala
,
supra
; and
S v
Njaba
,
supra
. In contrast to this, in the present case the
application appears to contemplate a re-canvassing of the entire
case. As counsel
for the appellant conceded in argument, he was
really asking fdr a fresh trial de
novo
before a different
magistrate. It seems to me that this factor can only serve to
multiply the dangers and disadvantages to the
proper administration
of justice which have been referred to.in the cases.
In
applying the aforegoing principles to the present case,
I
shall consider the three categories of
/
evidence
27
evidence
separately.
I
commence with category (1).
I
do
not propose to set out the further evidence, as revealed by the
affidavits, in any detail.
I
think LhaL its
general thrust was correctly summarized in his heads of argument by
counsel for the State when he said that the evidence
was claimed by
the appellant to
show that
â
(i) the
complainant is a girl of loose morals, with a heightened sex drive
when under the influence of liquor or drugs, inclined
to tease men,
given to drug abuse, given to playing pranks and constantly seeking
the limelight;
(ii) the
appellant is impotent when under the influence of liquor and/or
drugs, is not sexually demanding and is of a sympathetic
and gentle
nature; and
(iii)
prior to the incident the complainant and the appellant had a sexual
relation-ship.
/ Counsel
28
Counsel
for the State subjected the relevant affidavits to a detailed
critical analysis in subsban-tiation of his submission that
many of
the allegations (denied on affidavit by the complainant) were of
doubt-ful veracity and that in many instances the witnesses
concerned
were not unbiassed. While there is much substance in these
submissions,
I
do not find it necessary to
decide whether this evidence passes the test of "prima
facie
likelihood of truth" for in my view it does not pass the other
two tests.
Firstly,
there is in my view no reasonably suf-ficient explanation, based on
allegations which may be true, as to why the evidence
was not led at
the trial. The evi-dence was available. About that there is no
dispute, for the witnesses concerned were all friends
or relatives of
the appellant. For the failure to call all or any of these witnesses
the appellant blames the attorney, Mr K M
V
Smith,
who represented him at his trial. Apart
/ from
29
from
accusing his attorney of having presented "so completely
inadequate" a defence that it "caused him material
prejudice and led to a miscarriage of justice", appellant also
alleged that he gave his attorney Lhe names of "about
seventeen
witneases" who were able to testify to the matters listed under
(i), (ii) and (iii) above, but that Mr. Smith failed
to subpoena, or
even consult with, any of them.
Another
complaint against Mr Smith, as stated in appellant'saffidavit, is the
following:
"On
the day on which I was to testify,
I
was so
nervous that
I
smoked dagga (which
I
was doing habitually at that time), a fact which
is in my respectful submission clear from the manner in which
I
gave my evidence. This shouid have been apparent
to Mr Smith, who would have known, where the learned Magistrate could
not have,
my behaviour and personality when not under the influence
of dagga."
And a
third complaint is:
"After
my conviction and sentence, Mr Smith informed me, and my mother and
aunt, that
I
could not appeal, as
I
had
/ been
30
been
sentenced. Only later during that week did he discover his mistake,
and note an appeal."
The State
filed an affidavit by Mr Smith. In it he denied that appellant had
given him the names of seventeen witnesses; stated
that he could not
understand
why
appellant alleged that he should have known that applicant was under
the influence of dagga at the time of giving evidence;
and denied
that he ever informed the appellant that he could not appeal.
In
general,
I
do not think that an applicant
in a case such as this can rely upon the alleged shortcomings of his
legal representative as an explanation
as to why the evidence was not
led at the trial (cf
S v Swanepoel
1983 (1) SA 434
(A), at p 447 F). But in any event
I
find
the appellant's evidence (on affidavit) in this respect to be most
unconvincing. Although he speaks of seventeen witnesses
at the time
of the trial, the expanded applica-tion for leave to lead further
evidence refers to only
/ five
31
five
witnesses in this category. The bizarre allega tion that/he
gave evidence while under the influence of dagga
(no doubt in order to expiain his poor showing in the witness box)
seems most improbable,
because it is difficult to believe (a) that a
person in his position
would
have behaved so irresponsibly and (b) that, if he did, no-one in or
around the court that day would have perceived his condition.
And
I
find it equally improbable that any attorney could
have told him that he was
not entitled to appeal.
Consequently,
I
hold that there
is not a
reasonably sufficient explanation, based on allegations which may be
true, why the evidencé was not led at the trial.
Secondly,
I
cannot
see that the evidence in question can materially affect thc outcome
of the trial. As appears from my summary of the evidence
given at the
trial, the crucial issues relate to what happened at
64 Railway
32
64 Railway
Road and beside the N3 freeway. Apart from this and apart from
certain matters of detail, the re-spective versions of
the
complainant and the appellant do not differ radically. At 64 Railway
Road, however, complainant alleges that the appellant
made sexual
advances (she regarded it as an attempt to rape her), whereas he
de-nies that anything of the sort happened. And beside
the N3 freeway
complainant alleges that the appellant did rape her, whereas he says
that, though he wished to have inter-course
and though she appeared
to be willing, nothing in fact happened. The undisputed evidence of
what happened at these two locations
(as confirmed by Mrs Schoeman
and Minnaar) is strongly corroborative of complainant's version. Why
else should complainant have
screamed and shouted for help in the
Kombi, and run to the house in order to tele-phone? And what
explanation has the appellant
for having removed complainant so
forcibly from the house and bundled
/ her
33
her into
the "bakkie"? And for her having used the anti-assault
spray on him? The suggestion that the com-plainant was
overtaken by a
fit of claustrophobia seems to be utterly fanciful and certainly does
not adequately explain what happened. It is
true that Mrs Schoeman
does not confirm that complainant told her of the attempted rape and
that she wanted to telephone the police.
But this con-flict is of
minor importance. Mrs Schoeman was not an en-tirely independent
witness: the appellant was a friend of
her husband's. Alternatively,
in the confusion she may not have taken this in. On the other hand,
the complain-ant may be mistaken
about what she told Mrs Schoeman.
What is significant, however, is that complainant wanted to use the
telephone and it seems likely
that this was in order to telephone the
police. Who else, one may ask, at that time of night?
Furthermore,
34
Furthermore,
one may also aak why complainant should have run across the N3
freeway into the night, at not inconsiderable danger
to herseif, have
stopped the first car that approached and told the occupants that she
had been raped, have gone off with them,
and have laid a charge with
the police, if, as appellant alleges, not only was she willing to
have intercourse, but in fact intercourse
did not take place?
Moreover, is it likely that in the circumstances alleged by appellant
she would have been able to simulate
a state of being very hurt,
upset and emotionally disturbed well enough to convince Minnaar and
others; and have been able to participate
with an apparent show of
seriousness in prayer at the roadside? A minor, but significant,
point is appellant's evidence to the
effect that complainant said to
him that if he had inter-course with her she would have him up for
rape. It is dif-ficult to reconcile
this with his assertion that she
was
/
willing.,
35
willing
to have intercourse with him. It is true that in cases of sexual
assault false charges do get laid, for a variety of reasons,
and it
is for this reason that the court is required to observe caution in
such cases (see judgment of BOTHA JA in S
v
Balhuber
,
unreported, 25/9/86), but, one asks, what could have been the reason
in this case? No reason was suggested by appellant at the
trial. In
his affidavit in support of the application appellant said:
"It
is my firm belief that the whole matter started as a prank for the
com-plainant, and that she did not believe it would
have serious
repercussions."
This is an
obvious afterthought and, in my view, it is a highly improbable
theory. A far more likely theory, consistent with all
the bjective
facts, is that she was
raped.
Having
regard to all this evidence and to the
/
probabilities
36
probabilities,
the question which must be asked is whether the evidence falling into
category (1) can materialiy affect the outcome.
And here the evidence
in this category must be weighed against the evidence adduced at the
trial and the probabilities generally.
A material factor is the
Magistrate's perception of the credibility of the
I
witnesses, based upon his observation of them in
the witness-box. His findings in this regard have already been noted.
It may be
accepted that the evidence in category (l) portrays the complainant
as a high-spirited, mischievous young woman, prone
to exhibitionism
(particularly in regard to her physical charms), certainly no prude,
either in her attitudes or in her way of
life, and inclined to tease
men. It also shows her as someone given to dagga-smoking (though not
to a great degree) and fond of
liquor. It also seeks to establish
that the complainant and the appellant had a prior sexual
relationship. This evidence would
have been
/
of
37
of
more relevance and cogeney had appellant's case been that intercourse
had taken place with the complainant's consent. But, as
I
have
shown, his case is that no inter-course took place. And his only
explanation, at this late stage, for the complainant's conduct
is
that she was playing a prank. As
I
have
indicated,
I
find this expla-nation, viewed
in the light of the objective evidence, utter-ly far-fetched. In the
judgment of the Court a
quo
granting leave to appeal it was stated that if the complainant was a
woman in the habit of abusing drugs and if she was "high
on
drugs" at the time, this could"easily"
explain
her con-duct in laying a false charge. But there is no evidence to
suggest that the complainant was "high on drugs".
At most
she had shared a dagga cigarette with the appellant four or more
hours earlier. Neither of the State witnesses with whom
she came in
contact that night appears to have noticed anything about her
behaviour to indicate that she
/ was
38
was
under the influence of drugs, or anything else for that matter.
I
would, therefore, not regard the evi-dence of her
drug-taking as being likely to affect the outcome.
The
evidence of a prior sexual relationship, even if true, appears
exaggerated, as appellant himself deposed to only one such prior
episode. The evidence also portrays the appellant as being impotent,
or tending to impotency, while under the influence of drugs.
This
kind of general and rather unspecific evidence does not carry much
weight when compared wïth the evidence of what actually
happened. And, in any event, it appears from the complainant's own
evidence that appellant experienced some difficulty in achieving
an
erection prior to raping her.
In
all the circumstances
I
am not persuaded
that the evidence in category (1.) would be materially relevant to
the outcome of the trial and that for this reason
as
/ well
39
well the
application for remittal to lead such evidence must be refused.
I
come
now to category (2). This relates to a singie issue, viz. a
spermatozoa test. It appears from Dr Noche's report that in the
course of his examination of the complainant he took two slides and a
swab and placed them in a sealed envelope, upon which the
complainant's name and the date were written. No reference to these
slides and the swab were made by Dr Noche in his evidence-in-chief
and he was not asked about them by appellant's attorney in
cross-examination. From affidavits filed in support of the
application
for remittal, it appears that these slides and the swab
related to vaginal smears taken by Dr Noche; that they were submitted
to
the medico-legal laboratory of the South African Police at Durban
for exami-nation; and that they were examined there by a Mrs Barbara
Fisher, a registered medical technologist, who found that
/
they
40
they wcre
"negative for spermatozoa". According to a deponent, Dr H F
J Schumann, a medical officer in the em-ploy of
the State â
"
5.
The fact that slides and swabs taken from a rape victim are
established to be negative for spermatozoa, does not necessarily mean
that the victim was not raped. In such a case, a rape could have
taken place where the assailant has undergone a vasectomy, ejaculated
outside the vagina, has not ejaculated, suffers from aspermia, has
used a condom, or where blood is in existence in the vagina
either
due to injury or menstruation.
6.
Where
none of the considerations set forth in the second sentence of
paragraph 5 hereof apply, absence of spermatozoa or of any
evi-dence
of spermatozoa is virtually conclusive proof that ejaculation did not
occur in the vagina, and had not so occurred for
at least 72 hours
prior to the slides and swab being obtained."
(Obviously
the phrase "none of thc considerations" in para.6 must be
read as not including ejaculation outside the vagina.)
Another
deponent, Dr R Maller, gives the same evidence.
/ The
41
The State
filed an affidavit by Prof J P Nel, a legal pathologist in the employ
of the State and having links also with the medical
faculty of the
University of Natal. He adds to Dr Schumanu's list in para. 5 above
certain other factors that may cause a spermatozoa
test to show
incorrectly a negative result, including an im-proper technique in
the taking of the swab and bhe making of the slide.
Applying
the tests laid down in
De Jager
's case,
supra
, there is
no question as to the truth of this evidence concerning the test and
its result. As to whether there is a reasonably
sufficient
explanation as to why it was not led at the trial, there is
undoubtedly substance in the argu-ment that the taking of
the gwab
and slides is explicitly referred to in Dr Noche's report and that in
the circum-stances appellant's attorney could have
pursued the matter
had he wished to do so. On the other hand, it appears
/ that
42
that
the prosecutor at the trial had Mrs Fisher's report in his
possession, but did not tendor it in evidence or inform the defence
attorney of its existence and contents. In an affidavit filed the
prosecutor seeks to justify this on the ground that such a negative
result is "not only in-conclusive but neutral" on the issue
as to whether ejacu-lation took place in the vagina or not.
And in
this con-nection he states that in his own experience in more than
half the rape cases where it is common
cause
that
intercourse and ejaculation occurred the apermatozoa tests have been
negative.
In my
view, the prosecutor's failure to place the affidavit containing the
result of the test before the Court, or at least to inform
the
defence attorney of it, was an error of judgment and in breach of his
general duty to disclose information favourable to the
accused (see
Lans-down and Campbell
South African Criminal law and Proced
ure,
/
vol.
V
3
vol.
V,
pp 511-12 and the cases there cited). lt
is true that a negative result is not conclusive and that various
other imponderables have
to be resolved before any defi-nite
inference can be drawn, but nevertheless it does tend to support the
proposition that no ejaculation
in the vagina took place and is
favourable to the appellant. It was for the Court, not the
prosecutor, to evaluate the cogency
of the evidence. Whether a
failure to elicit evi-dence, the existence of which should have been
apparent to the defence, is neutralised
by the prosecutor's wrongful
failure to disclose the evidence is not a matter that need now be
decided for
I
am not persuaded that this
evidence would materially affect the outcome of the trial.
It is true
that, although the complainant's evi-dence is not altogether clear on
this aspect, she would seem to have alleged that
ejaculation took
place during penetration. There are, however, three factors to be
/
considered
44
considered.
Firstly, there are the imponderables, referred to above, which would
have to be eliminated before the negative result
of bhe test could
carry any cogency. And in this regard, it seems to me that it would
be difficult to determine a number of these,
eg. whether or not the
technique in obtaining the swab and slides had been faulty. Secondly,
absence of spermatozoa does not disprove
rape. Penetration could have
been achieved without ejaculation having occurred in the vagina. In
this regard the complainant may
have been genuinely mistaken in her
belief that ejaculation took place during penetration. After all she
was, on her version, being
raped and was not in a position to make
accurate observations. Thirdly, though this evidence might thus
affect the reliability
of the complainant's evidence on this
particular point, it must again be weighed against the evidence on
record, the strength
/ and
45
and
weakness of the versions given by complainant and appellant, the
Magistrate's findings on credibility and so on having given
the
matter careful consideration,
I
have come
to the conclusion that the evidence in cate-gory (2) is not
materially relevant to the outcome of
the trial.
Finally,
there is the evidence under category (3). I shall assume in
appellant's favour that the evidence of complainant's post-trial
conduct would be admissible at any further hearing upon remittal (cf.
S v Lehnberg and Another
1976 (1) SA 214
(C), at p 216 G).
This evidence consists of (i) complainant having burst into tears
after sentence was passed upon appellant, (ii)
a suicide attempt on
complainant's part, (iii) a meeting between complainant, the
appellant and appellant's brother
at the
Malibu Hotel, Durban in July 1985, ie after appel-
/
lant's
46
lant's
appeal to the NPD had failed, at which the complainant is alleged to
have passed certain remarks, (iv) a meeting between
complainant and
appellant's attorney on about 31 July 1985 and the discussions which
took place at this meeting and (v) statements
which
complainant
is alleged to have made to other witnesses. All this evidence is said
to establish that the complainant falsely accused
the appellant and
gave perjured evidence at his trial.
The
situation created by a recanting witness was dealt with
by
this Court in R v Van
Hee
rde
n
and Another
,
supra
,
where CENTLIVRES CJ made the following statement (at p 372 H - 373
A):
"To
accept at their face value affidavits made by material witnesses who
allege therein that they knowingly gave false evidence
at the trial
would leave the door wide open to corruption and fraud. It is not in
the interests of the proper administration of
justice that further
evidence should be allowed
/ on
47
on appeal
or that there should be a retrial for the purpose of hearing that
further evidence, when the only further
evidence is that contained in affidavits made after trial and
conviction by persons who have recanted the evidence they gave at the
trial. To allow such further evidence would encourage unscrupulous
persons to exert by means of threats, bribery or otherwise undue
pressure on witnesses to recant their evidence. In a matter such as
this the Court must be extremely careful not to do anything
which may
lead to serious abuses in the administration of justice."
And in
S
v W
1963 (3) SA 516
(A) OGILVIE THOMPSON JA said (at p 524 E) â
"....
the mere circumstance that a witness called at a trial has
subsequently made a statement inconsistent with his evidence
will
seldom in itself be a sufficient ground for reopening a concluded
trial "
(See also
S v Zondi
,
supra
, at p 655 F.)
I
do
not propose to deal with the evidence falling under category (3) in
detail.
I
have studied it carefully,
together with the complainant's replying
/
affidavit
48
affidavit.
From this it appears that the complainant is not a recanting witness
in the true sense. Indeed in her affidavit the complainant
denies
that what she testified to at the trial was anything but the truth.
She also denies, incidentally, the compromising statements
alleged to
have been made by her. Much of the evidence under category (3)
relates to incidents from which appel-lant seeks to deduce
an
admission by the complainant (often by inference) that she gave
untrue evidence at the trial. In most instances the inference
cannot
be drawn. In a few cases, eg. the alleged admission to. appellant's
brother, Mark Nel, before going to see appel-lant's
attorney, the
evidence is clear but, in my view, somewhat suspect. (In regard to
the example given, not only does the evidence
not ring true, but
there is also the factor that the Magistrate found Mark Nel to be a
biassed witness.) Moreover, all this evidence
/ must
49
must also
be weighed against the evidence adduced at tho triai, the findings of
the Magistrate etc. to deter minc its materiality.
Having
thus considered it,
I
am of the opinion
that the evidence under category (3) does not pass the materiality
test and on that ground alone the application
for
remittal to hear such evidence cannot succeed. For these reasons
I
hold that the application to set aside the
conviction and sentence and for the remittal of the matter
for
the hearing of further evidence should be refused.
That
leaves only the question of sentence to be considered, In his
judgment the Magistrate emphasized the prevalence of the crime
of
rape and the need for a sentence which will serve as a deterrent to
others.
He pointed
out, however, that the complainant was not a virgin and was not
seriously injured. Against this the
/
appellant
50
appellant
showed no remorse. He added â
"On
the night in qucstion you had obviously made up your mind that you
were going to rape hcr at all costs. It will be recalled
that after
she fled to Mrs Schoeman's house, you pulled her away from there,
forcibly took her back into the motor vehicle and
eventually stopped
at the side of the road where you had her at your mercy."
It
was suggested in argument that this amounted to a misdirection. If
this statement should be interpreted to mean that the appellant
set
out at the beginning of the evening with the crime of rape in mind,
then it would be a misdirection, since there is no evidence
to
substantiate this. But
I
do not think thak
thak is what the Magistrate intended to convey. What he probably
meant was that as from the time of the Kombi
incident the appellant
had made up his mind that he was going to rape the complainant, if
she did not consent to intercourse, and
I
think
that this is a fair inference from the facts.
Having
mentioned the appellant's personal circum-
/stances
51
stances,
including the fact that he had no previous convictlons, the
Magistrate conciuded that the only appro
pr.la
ke sentence was a reasonable term of imprisonment.
This he
Eixed at five years' imprisonment in the concluding portion of his
judgment on sentence the Magistrate said:
"This
is not the usual or ordinary type of case where the rapist grabs an
unknown person and rapes her. In this case you knew
the
complainant
well and you had often associated
with
her."
it is not
clear whether he regardcdthis as a mitigating or an aggravatihg
factor. To my mind, it is a mitigating factor in that
the shock and
affront to dignity suffered by the rape victim would ordinarily be
less in the case where the rapist is a person
well-known to the
victim and someone moving in the samc sociai milieu as the victim.
The
sentence imposed by the Magistrate is sub-
/stantially
52
stantially
heavier than the one
I
would have imposed
had I originally been seized of the case. And
I
think
that the disparity is sufficient to warrant interference on appeal.
In my opinion, particularly bearing in mind the appellant's
personal
situation, including the fact that he has no previous convictions,
the lack of any serious injury to the complainant and
the fact that
she was evidently a woman of experience from the sexual point of
view, justice would be served by a suspension of
half the sentence
imposed.
The
following order is made:
(1)
The
application for the setting aside of the conviction and sentence and
for the remittal
of the matter
for the hearing of further evi dence is refused.
(2)
The
appeal against the conviction is dismissed.
(3)
The
appeal against the sentence is allowed and there is substituted for
the sentence imposed by the Magistrate the following:
/ "Five
53
"Five
years' imprisonment, of which two-and-a-half years are suspended for
a period of five years on condition that appellant
is not convicted
of the offence of rape or indecent assault or an attempt to commit
either of these offences committed during the
period of suspension
and for which offence the appellant is sentenced to a period of
imprisonment without the option of a fine."
M
M CORBETT
VILJOEN
JA)CONCUR
NESTADT
JA) CONCUR