S v Wilmot (180/2001) [2002] ZASCA 42 (16 May 2002)

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[2002] ZASCA 42
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S v Wilmot (180/2001) [2002] ZASCA 42; 2002 (2) SACR 145 (SCA) (16 May 2002)

THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
Reportable
CASE NO. 180/2001
In
the matter between
A L
WILMOT Appellant
and
THE
STATE Respondents
____________________________________________________________
CORAM:
MARAIS, ZULMAN, and NUGENT JJA
HEARD: 15
MARCH 2002
DELIVERED: 16 MAY 2002
____________________________________________________________
Remittal to trial court for hearing of further evidence
JUDGMENT
ZULMAN
JA
[1]
The
appellant was convicted in the Regional Magistrates Court for the
Albany District sitting at Grahamstown of having raped a young
girl
(‘the complainant’). He was sentenced to 11 years imprisonment
of which three years were conditionally suspended. On
appeal to the
High Court of the Eastern Cape Division the conviction and
sentence were confirmed. The court
a
quo
granted leave to appeal against the
whole of its judgment.
[2]
The
appellant was acquitted on three other charges, namely, rape,
indecent assault and attempting to defeat the ends of justice.
Those
charges of rape and indecent assault arose from events that occurred
during June 1997. The events which gave rise to the charge
on which
the appellant was convicted were alleged in the charge sheet to have
occurred during August 1998 but the evidence of the
complainant
suggested that they might rather have occurred during June or July of
that year.
[3]
Shortly before the hearing of this appeal the
appellant gave notice that he intended applying for further evidence
to be received
by this Court in the form of affidavits from four
deponents (including the appellant), alternatively, for the matter to
be remitted
to the trial court for the hearing of the evidence of
those deponents as well as ‘further cross-examination of (the
complainant)
with such instructions regarding the taking of such
further evidence as this Court may deem appropriate’. For the sake
of brevity
I will refer to the application simply as ‘the
application’. In the result the appellant sought only the
alternative form of
relief. The application was opposed by the
respondent.
[4]
In order to properly understand the
application it is necessary to refer to certain of the evidence given
at the trial as also to
the appellant’s argument on the merits of
the appeal.
[5]
The appellant is a fifty-seven year old
farmer who farms in the Grahamstown area. The complainant was almost
14 years old at the
time of the alleged rape. She and the other
complainants on the sexual offences charges gave evidence through an
intermediary pursuant
to the provisions of s 170A of the
Criminal Procedure Act, 1977.
[6]
The complainant, who was the first witness to
testify, gave evidence to the effect that one Mutiwe Nohesi
approached her mother on
a Thursday some time during the second half
of 1998 and asked whether she would allow the complainant to
accompany her to fetch cabbages
from a certain farm. Her mother was
initially reluctant but eventually agreed. The complainant and
Nohesi left in the company of
two other persons and slept over on a
farm. On the Friday morning she and Nohesi walked along a certain
road and waited alongside
the road. A white man driving a white
Isuzu van stopped. He chastised Nohesi for not stopping at ‘room
5’. They spoke in Xhosa.
Nohesi and the complainant climbed into
the passenger cab of the van. The man drove to a place alongside
some bushes. Nohesi and
the man alighted and went into the bushes.
The man then came back. He asked the complainant to take off her
clothes. The complainant
started crying. The man went away and
came back with Nohesi. Nohesi asked her why she was crying and
opened the driver’s side
door of the vehicle. The man then
undressed the complainant and himself. Nohesi held the complainant
by the arms while she lay
on the seat in the cab. The man was at the
passenger side door. He then proceeded to lie on top of the
complainant and had sexual
intercourse with her against her will.
She thereafter dressed and remained in the cab of the vehicle with
the doors closed while
the man and Nohesi went into the bushes. A
while later the man came back to fetch his jersey. He then left
again. The man eventually
returned and gave the complainant two R10
notes. Nohesi then returned and the three of them drove for some
distance before Nohesi
and the complainant alighted alongside the
road. Nohesi then asked the complainant for the money that had been
given to her, which
the complainant handed over. Nohesi and the
complainant then returned to where they had slept the previous night.
The following
morning Nohesi washed the complainant's dress and
panties and lent the complainant a skirt, which she wore. They then
proceeded
to collect cabbages from ‘Tuti’s field’ and then went
into Grahamstown where, amongst other things, Nohesi bought toy dolls
for the complainant. They then returned to the complainant’s home.
The complainant made no report of the incident until some
weeks
later when she experienced a burning sensation when urinating. On 6
September 1998 she reported this to her mother. Upon
further enquiry
she then told her mother about the incident. The matter was
reported to the police who arranged for the complainant
to be
examined by the District Surgeon the next day. Dr Dwyer testified
that the examination was painful; her vagina admitted one
finger; her
hymen was torn and swollen; the swelling could have been as a result
of infection or trauma to the hymen.
[7]
The complainant said that she did not know
who the man was who had had sexual intercourse with her but that she
heard Nohesi ‘say
Tuti to him’. At no stage in her evidence did
the complainant directly identify the appellant as her alleged
assailant.
[8]
Nohesi was not
called to testify by the state. Earlier on during the testimony of
the complainant the prosecutor indicated that
Nohesi was available to
consult with the defence. Seemingly on the basis of this
consultation defence counsel challenged certain
of the complainant’s
evidence in cross-examination by putting to her that Nohesi would
confirm going to the farm, but that it happened
on 31 July 1998 (not
later, as the complainant implied); that she did accompany the
complainant, but that she did not hold the complainant;
that the
complainant was not raped; that the complainant stole the money with
which dolls had been purchased; and that Nohesi never
threatened the
complainant in any way. There was no challenge of the complainant’s
evidence that Nohesi called the white man ‘Tuti’;
or that the
complainant had sexual intercourse; or that the white man had a white
Isuzu van; or that they fetched cabbages from ‘Tuti’s
field’;
or that Nohesi and the man went into the bushes; or that the man had
asked Nohesi why they had not come to house 5. Nohesi
was also not
called to testify by the defence.
[9]
The complainant’s evidence was followed by
that of her mother who confirmed the report made to her by the
complainant. Apart from
the later evidence of Dr Dwyer about his
medical examination of the complainant no further evidence was
presented which related directly
to the charge on which the appellant
was convicted.
[10]
A certain Mrs Nxingo gave evidence for the
prosecution on the charge of attempting to defeat the ends of
justice. She deviated from
her original statement to the police and
was declared a hostile witness. Before that occurred, and while
giving evidence in chief,
she said that the appellant was known as
‘Tuti’.
[11]
Three young black women gave evidence
concerning an incident that occurred late in June 1998 in which the
appellant committed sexual
acts with them with her consent. Their
respective ages were found not to have been proved by the state, and
accordingly no offence
was proved to have been committed. According
to their evidence (and that of two other witnesses, Ms Nolusindiso
Nela and Ms Nomfusi
Kosi) the appellant was known as 'Tuti'.
[12]
What happened on that occasion was that the
three women, accompanied by another woman (Stamelatjie) were
allegedly picked up alongside
the road by the appellant in his Isuzu
van. Stamelatjie got into the front of the van and the others sat
at the back. The appellant
drove to Grahamstown where he dropped
off a load of cabbages. He then drove back to a spot outside the
town where he stopped at
some bushes. He went down into the bushes
and the three witnesses were told, in succession, to join him. The
private parts of the
first young woman were touched and fondled by
the accused. He had sexual intercourse with the other two.
Stamelatjie also went
to him, but apparently escaped having sexual
intercourse with him because she was menstruating. The appellant
gave each of them
money (either R20 or R40) after each sexual
encounter. Stamelatjie told them not to tell anyone what had
happened. They were driven
back to Grahamstown and dropped off
there.
[13]
The witnesses Nela and Kosi also testified
that they met the appellant some time after the incident at a place
called ‘Number Five’
or ‘Five’. He admitted to Kosi that he
had had sex with the children (presumably referring to the June 1997
incident). He
also offered these two witnesses money to have the
charges against him arising from that incident withdrawn.
[14]
The appellant, as he was entitled to do,
elected not to testify in his own defence at the trial, and no
witnesses were called to testify
on his behalf. At no stage in the
cross-examination of any of the State witnesses, as was the case with
the complainant in the
rape charge, was a contrary version of events
put to them. The general import of the cross-examination seems to
have been to test
the witnesses’ version of events and to show that
on their own version they consented to any sexual encounters with the
person
they alleged they were with.
[15]
The magistrate believed the complainant whom
he found to be ‘a very good witness’ who ‘created a favourable
impression’.
[16]
In argument before this court the appellant
relies upon the following six essential contentions in attacking his
conviction:-
(1) The evidence of the complainant was not
satisfactory in every material respect and material criticism may be
levelled at her
credibility.
(2) There is no corroboration for the complainant’s
evidence that she was raped.
(3) The trial court
misdirected itself both on the evidence and by failing to apply the
rules of logic formulated in
R
v Blom
1
.
(4) The evidence as a whole did not establish with the
requisite degree of proof that the assailant of the complainant was
the appellant.
(5) The admission by the trial court (which was
confirmed by the court
a quo
) of evidence relating to the June
incidents as similar fact evidence to establish that the appellant
was the person who raped the
complainant was wrong in law and
amounted to a misdirection.
(6) The evidence as a whole did not establish that the
complainant did not consent to the act of sexual intercourse.
[17]
Against this background I will now revert to
the application. In his founding affidavit the appellant states that
on 21 January 2002
he met a former employee of his, one Bukelwa
Mantawule, in the street in Grahamstown. Mantawule told him that she
had recently met
the complainant who had informed her that she wanted
to withdraw the charges against the appellant since the appellant had
not raped
her. She also told Mantawule that her mother would not
allow her to withdraw the charges. The appellant then referred the
matter
to his attorneys instructing them to take the matter further
on his behalf.
[18]
As a consequence of this a Mr Haydock, a
candidate attorney employed by the appellant’s attorneys, conducted
certain investigations.
According to Haydock, who deposed to an
affidavit in support of the application, the appellant, in addition
to telling him about
his meeting with Mantawule in a street in
Grahamstown, also told him that prior to this the complainant was
involved in ‘two further
rape charges as a complainant’. This
latter fact is not referred to in the appellant’s founding
affidavit. As a result of investigations
which he conducted through
the office of the relevant prosecutor and the detective branch of the
police Haydock obtained copies of
the contents of dockets in the two
cases to which the appellant had referred him.
[19]
The first docket related to the case of the
State v Minethu Nojoko
in which the accused was alleged to
have raped the complainant. The docket also revealed that subsequent
to the complainant laying
the charge of rape on 4 February 2001 the
complainant on 19 February 2001 retracted a sworn declaration that
Nojoko had raped her
and stated in an affidavit that Nojoko had had
sex with her with her consent.
[20]
In an affidavit annexed to Haydock’s
affidavit and deposed to by a Mr Wolmarans, an attorney who also
practises in Grahamstown,
it appears that the complainant in this
matter was also the complainant in a charge of rape against two
accused (Mzwanele Gladman
Mani and Julius Tendisisiswe Maki) who were
defended by Wolmarans. The complainant’s evidence that she had
been raped by the two
accused was rejected by the court. The accused
were however, convicted of the statutory offence of having sexual
intercourse with
a girl under the age of 16. The complainant's
evidence was that she was 14 years old at the time the offences were
alleged to have
been committed. According to the complainant's birth
certificate, which was produced in evidence in the trial that is the
subject
of this appeal, she was 16 years and 3 months old at the time
of that alleged offence.
[21]
At the request of the appellant, Mr Rusa, an
attorney employed by another Grahamstown firm of attorneys, took full
statements from
Ntombehkaya Ntlokwana (Ntombehkaya) and Noncedo
Ntlokwana (Noncedo) relating to a conversation that they allegedly
had with the complainant.
Rusa attaches affidavits from these
persons to an affidavit deposed to by him. In addition Rusa deposes
to the fact that on 24
January 2002 (3 days after the appellant’s
meeting in the street with Mantawule), the appellant brought
Mantawule to his office
and asked him to take a statement from her.
He did this in the appellant’s absence. Rusa attaches an affidavit
from Mantawule
to his affidavit.
[22]
The affidavit of Ntombehkaya was to the
following effect:-
On 8 January 2001 she, together with two friends of the
complainant, were at the home of the complainant where they spent
the afternoon.
The complainant informed them that 'there was a white
man at the station who sleeps with black females' and that 'the
mothers of
these females would lay charges against this white man
for having slept with their children'.
The complainant said that she 'did not want to lay
charges against Mr Wilmot, but her mother insisted that she must do
so'. She
told them that the reason why she did not want to lay
charges against Mr Wilmot was that she was not raped by him.
Her mother asked her 'to allege that she had been raped
by Mr Wilmot'.
The conversation came about because her friends had
asked the complainant why she was often attending court.
[23]
Noncedo’s affidavit is to the effect that:
Early in March 2001 she was with the complainant who
informed her that 'she was not raped by Mr Wilmot but asked by her
mother to
accuse him of having done so'.
The complainant said that this was because she did not
know the white male who raped her under the bridge. She said that
she was
told by her mother that Mr Wilmot had been arrested and
charged for rape and that it could be him who had raped her. The
complainant
further said that 'she was informed by her mother that
the little girls who were raped by Mr Wilmot were of the same age as
her.
She informed me that she went to the police to inform them
that she was raped by Mr Wilmot.'
During mid March 2001 the complainant visited her and
her younger sister, Motiwe. During the conversation the complainant
said
that 'there were white men at Kongo who were sleeping with
black females. She said that she was one of those females who slept
with these white males. She further said that these white males
would pay R20,00 or R60,00 to any female who slept with them.
She
invited Motiwe to visit Kongo in order to sleep with one of these
males. However, Motiwe did not respond to the invitation.'
[24]
Mantawule in her affidavit states that:
In December 2001 she went to the complainant’s
mother’s home.
When she arrived there she found the complainant
together with her friends, she asked the complainant where her
mother was and was
told that she had gone out for a few minutes but
that she would be back soon.
She decided to wait for the mother. Whilst waiting
one of the complainant’s friends asked the complainant what was
happening
with her case. The complainant replied that she wanted to
withdraw the case but her mother did not want her to do so.
The complainant was asked which white male the
complainant had laid charges against. She replied by saying that it
was Tuti.
She immediately knew who the complainant was referring
to as she had once worked for the appellant and he had always been
known
as Tuti.
The complainant went further and said that Tuti had not
raped her but that her mother told her to accuse Tuti of having done
so.
Mantawule then joined in the conversation and asked the
complainant ‘who had raped her if it was not Tuti. Her reply was
that
she did not know the identity of her rapist.’
On Monday, 21 January 2002, whilst she was at her home,
which is not far from the complainant’s home, she noticed the
complainant
sitting alone under a tree. She decided to talk to her.
After exchanging pleasantries and some talk about things in general
she
asked the complainant what was happening between her and Tuti.
The complainant told her that she wanted to withdraw her rape charge
against Tuti (the appellant) as, she said, she had not been raped by
him. She said that because her mother refused to allow her
to do so
she had continued with the case.
The reason why she asked the complainant about the
appellant was that she had known the appellant for a long time as
she had once
worked for him on his farm. Furthermore, she was
worried about the appellant as her former employer.
On the afternoon of 21 January 2002, she
co-incidentally met the appellant whom she had last seen in 1992.
This was just after
she had spoken to the complainant. She told him
about the conversation she had with the complainant. The appellant
said that
he would refer the matter to his lawyers.
[25]
Some eight affidavits have been filed by the
respondent in support of its opposition to the application. The
first is by the complainant
in which the following appears:
She refers to the
allegations made concerning her by Ntombehkaya, Noncedo and
Mantawule.
She denies that she ever wanted to withdraw the case
against the appellant on the basis that he was not the one who raped
her.
She also denies that her mother at any stage persuaded or
tried to persuade her to proceed with the case.
She asserts that the appellant did rape her. She
states that she would have pointed him out at court had she been
afforded the
opportunity to do so.
She denies the entire contents of certain paragraphs of
Noncedo’s affidavit concerning, inter alia, the fact, that she
said that
she did not know the white man who raped her under the
bridge; that during mid March 2001 she said that she was one of
those who
slept with white males who pay R20,00 or R60,00 to any
female who slept with them. Perhaps due to an oversight, she does
not deal
specifically with paragraph 3 of Noncedo’s affidavit. In
this paragraph Noncedo states that the complainant had told her that
‘she was not raped by Mr Wilmot.’
She draws attention to the fact that Noncedo is the
sister of Motiwe Nohesi who was present when the appellant raped her
and that
Nohesi was originally to have been called a state witness
to confirm that she had been raped. She contends that it would have

been foolish and futile for her to try to tell Nohesi’s own sister
a different story because Nohesi would have told her sister
that she
(the complainant) was lying as she had seen what actually happened
and that she was in fact raped by the appellant.
As regards Ntombehkaya and Mantawule she states that
she has never heard of them and that she asked her parents whether
they knew
these names but her parents were unable to help her.
She states that she accompanied the police with her
parents to both their home addresses; she said that she had never
been there
before and did not know the houses.
She avers that on 5 March 2002 ‘we managed to get’
(presumably meaning find) Bukelwa Mantawule's home. Although she
mentioned
my name and claimed to know me, I have never seen her
before.’
She admits that it is correct that she withdrew the
rape charge against Nojoko but asserts that Nojoko did rape her.
The reason
for her withdrawing the charge was because she was
persuaded to do so by Nojoko’s father who said that his son would
lose his
job and go to prison if convicted of such a serious crime.
The father accompanied her to the police station when she withdrew

the case.
(10) She states regarding the cases of Mani and Maki
that she can do nothing about the fact that the magistrate did not
accept her
evidence (implying thereby that it was nonetheless true)
and that the accused’s attorney of record, Wolmarans, formally
admitted
her age and never investigated it - she did not realize the
relevance of her age.
[26]
In an affidavit deposed to the investigating
officer in the appellant’s case she states:
She was also the investigating officer in the Nyoko
case and that she took down the complainant’s withdrawal statement
in the
presence of Nyoko’s father and the complainant.
Despite such withdrawal the prosecutor has refused to
withdraw the case which has been remanded for trial in June 2002.
She states that Nohesi was a key witness for the State
who corroborated the evidence of the complainant materially but at
the trial
recanted on what the appellant had done.
She annexes copies of different statements made by
Nohesi who appears to have been 21 years old at the time. In one of
these statements
signed by Nohesi on 11 August 1999, she states that
the appellant never had sexual intercourse with the complainant and
that she
had made a statement to the police falsely implicating the
appellant because the police promised to pay her R1 000,00 for

doing so. The affidavit also contains much argumentative matter
which is not admissible.
[27]
The
next affidavit is that of the complainant’s mother in which she
corroborates what the complainant stated in her affidavit concerning
her mother’s role in the matter, the fact that Mantawule and
Ntombekhaya are not known to her, and she denies allegations made
by
Noncedo and Ntombehkaya as far as they relate to her.
[28]
In
an affidavit by the complainant’s stepfather he also states that he
does not know Mantawule or Ntombehkaya. As regards Noncedo
he states
that she is his neighbour and that in the course of December 2001 she
came to see him at his house and told him that the
appellant wanted
to see him (‘Tuti soek vir jou’) but that he ignored the request.
[29]
The
final affidavit filed in support of the respondent’s opposition to
the application is that of Hambile Wellington Stefane. He
is a
detective inspector in the police service. He was concerned with
taking the complainant, her mother and her stepfather to the
addresses of the deponents Ntombehkaya and Mantawule. He states that
Ntombehkaya was unknown at the address given in her affidavit.
He
corroborates the statements of the complainant, her mother and
stepfather that on visiting Mantawule’s house and upon seeing
Mantawule they claimed not to know her to which Mantawule responded
to by questioning how they could say they did not know her.
[30]
The
appellant’s replying affidavit consists essentially of a denial of
all matters of relevance in the affidavits filed by the respondent.
[31]
The
prerequisites for a successful application for remittal, as
formulated in
S v De
Jager
2
, and applied in numerous cases since, are:
‘
(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.’
It is also, as pointed
out by Smalberger JA, in
S
v H
3
a fundamental and
well-established principle of our law that in the interests of
finality, once issues of fact have been judicially
investigated and
pronounced upon, further evidence will only be permitted in special
circumstances.
Accordingly the power to
hear new evidence on appeal or to remit a matter to a trial court to
hear such evidence will be sparingly
exercised and only when the
circumstances are exceptional.
4
A further factor which
weighs against the exercise of the power of remittal is the
possibility of fabrication of testimony after conviction
and the
possibility of witnesses being bribed to retract evidence given by
them.
5
The mere fact that a
witness at the trial has gone back on his statement given ‘will
not ordinarily warrant the grant of an order
re-opening a concluded
trial.’
6
On the other hand even
if an application for remittal ‘fails the test’ referred to above
the court in the exercise of an overall
discretion vested in it, and
obviously only in very special circumstances, may nevertheless grant
the application.
7
The onus of establishing the requirements set out above
clearly rests upon an applicant seeking remittal.
[32]
In
as much as the evidence sought to be led relates to events which
occurred subsequent to the appellant’s trial and is evidence
which
obviously could not be led at the trial, requirement (a) in
De
Jager’s
case has
been satisfied.
8
[33]
As
to the ‘
prima
facie
likelihood’
in requirement (b) there ‘remains some uncertainty as to its
precise juristic connotation’
9
.
After referring to the very careful and comprehensive analysis of
the question by Marais J in
S
v Steyn
1
0
,
the answer to the question was expressly left open in
S
v H
1
1
.
The question is whether the test requires some degree of probability
that the evidence in question will be accepted as true, or
whether a
reasonable possibility of that being so will suffice. The result
could of course vary, depending upon which test is applied
in a
particular case. I will revert to this aspect of the matter
presently.
[34]
There is a clear dispute of fact on the
papers as to whether the complainant made the statements retracting
her allegation of having
been raped by the appellant. Three persons
Mantawule, Ntombehkaya and Noncedo state that the complainant told
them that she had
not been raped by the appellant but that she had
falsely accused the appellant because her mother told her to do so.
Mantawule avers
that the statement was made to her by the complainant
on two different occasions – once in December 2001 and again on 21
January
2002. According to Ntombehkaya a similar statement was made
to her on 8 January 2001. Noncedo avers that she was told early in
March 2001 by the complainant that she was not raped by the appellant
but that she was asked by her mother to accuse him of doing
so. On
the other hand the complainant in her affidavit denies that she ever
made any such statements. She goes further and avers
that she has
never heard of Ntombehkaya and Mantawule. There are certain
shortcomings and possible improbabilities in the affidavit
evidence
presented by the appellant. For example, in paragraph 4.4 of his
replying affidavit, although he denies raping the complainant,
he
stops short of stating that he did not have consensual intercourse
with her. He also does not deny or seek to explain the statement
made by the complainant’s stepfather that he had been given a
message that the appellant wanted to see him.
[35]
It
is perhaps strange that the appellant would have met his former
employee (Mantawule) by chance in the street in January 2002 when
according to Mantawule she last saw the appellant some 10 years
previously in 1992 and that she would have told him about what the
complainant had allegedly told her. According to Mantawule she had
spoken to the complainant on the very day of the meeting with
the
appellant (21 January 2002). The corroboration by the policeman
(Stefane) and the complainant’s mother and stepfather of the
complainant’s assertion that she does not know Mantawule also casts
some doubt upon Mantawule’s credibility. It is also strange
that
the police established on 1 March 2002 that Ntombehkaya was unknown
at the address which she gave in the affidavit which she
deposed to
on 15 January 2002 as being her residential address. On the other
hand one cannot ignore the fact that the complainant
was prepared to
agree to Nojoko’s father’s request to withdraw the charge of rape
which she had laid against Nojoko and to state
that he did not rape
her whereas, on her present version she knew that that was untrue.
There is also the fact that she was disbelieved
in the Mani and Maki
trial in which she alleged that she had been raped. On her own
version of what occurred in the Nojoko matter
it seems that the
complainant is vulnerable and responsive to the influence of others.
[36]
I
am mindful of the dangers of a court having regard to what happened
in subsequent cases in which a complainant was involved and
the
Pandora’s box of collateral issues which could be opened by doing
so. But there can be no absolute bar to doing so. It is
obviously
something which a court should only be prepared to take into account
in circumstances where the alleged behaviour of the
complainant in
subsequent cases is indicative of a proclivity to level false
allegations of a distinctive and similar kind and there
is real
anxiety in the court’s mind as to whether the exclusion of those
circumstances may not result in the perpetuation of a
possible
miscarriage of justice. Just as similar fact evidence is admissible
against an accused only in narrowly circumscribed circumstances,
so
should “similar fact” evidence of the proclivity of a complainant
to give untrue evidence be admissible only in narrowly circumscribed
circumstances.
[37]
Here
we have the disturbing feature that in two other cases involving
allegations of rape by the complainant her credibility has been
found
wanting. Once because she herself made flatly self-contradictory
statements on oath as to whether she was raped and once because
her
evidence conflicted in material respects with that of a friend who
also testified for the State. The complainant’s evidence
in that
case was found by the magistrate to be unreliable. There may well be
innocent explanations for the latter. It is conceivable
that the
friend’s evidence was the unreliable evidence and not the
complainant’s or that, faced with the conflict, the magistrate
did
not know whose version was correct. One does not know. In the
former case, it may well be that her initial allegation of rape
is
indeed true and that her retraction of this allegation was the result
of influence being brought to bear upon her but the fact
remains
that, at best, she succumbed to the influence and committed perjury
in retracting her allegation that she was raped.
[38]
Suffice
it to say that I am not able to safely say where the truth lies in
the clear dispute of fact which is apparent from the papers.
In
this connection I am conscious of the following wise remarks of
Colman J, in
Metallurgical
and Commercial Consultants (Pty) Ltd v Metal Sales Co. (Pty) Ltd.
1
2
:
‘
My conclusion rests upon my experience, and the
experience of others before me, which shows that an assertion or a
denial which seems
very probable or improbable on a reading of a set
of affidavits often takes on a different colour when the veracity of
the person
who has made it is tested by cross-examination. There is
the rare case, of course, in which a disputed statement made on
affidavit
is so manifestly untrue, or so grossly improbable and
unconvincing that the Court is justified in disregarding it without
recourse
to oral evidence.’
[39]
I
cannot say with any degree of confidence that the disputed statements
made on affidavit in support of the application are ‘so
manifestly
untrue, or so grossly improbable and unconvincing’ that I am
justified in disregarding them. The test postulated by
Marais J in
S
v Steyn
1
3
is, I think, satisfied. I cannot say there is no reasonable
possibility that the new evidence tendered could be true. If the
test
has to be set somewhat higher (a matter I, too, shall leave
open) it is less clear that requirement (b) has been satified. But
the
exceptional circumstances of this case leave me with a feeling of
unease that I have been unable to quiet. In such a situation,
doctrinaire insistence upon the fulfilment of a requirement which
becomes increasingly difficult to fulfil the higher the test is
set
could be productive of miscarriages of justice.
[40]
As
to requirement (c) postulated in
S
v De Jager
1
4
,
and after careful
consideration of all of the affidavits with due regard to what I have
said above, I believe that the appellant has
also shown that the
evidence that he seeks to lead, if accepted as true, is materially
relevant to the outcome of the trial. The
credibility of the
complainant who is a single young witness was at the heart of the
State’s case and was of prime importance
in the conviction of the
appellant on the sole charge which is now under attack. Indeed, as I
have already pointed out, the magistrate
found the complainant to be
a very good witness. That credibility finding will obviously require
revision if the magistrate believes
the witnesses whom the appellant
now wishes to call
1
5
or even if he is left in doubt as to whom to believe.
[41]
Bearing
all the above considerations in mind, I have come to the conclusion
that the particular circumstances of the present case
warrant this
Court in granting the application. I reach that conclusion mindful
of the fact that if the complainant was indeed raped
by the appellant
it involves the complainant having to face yet again the trauma of
reliving the episode and testifying about events
which occurred long
ago. She may well be hampered in doing justice to herself when
testifying because of that. If she was indeed
the victim of a rape
by the appellant, it is distressing that she will have been subjected
to yet further anguish. If, on the other
hand, she was not telling
the truth, she will have brought this upon herself. It goes without
saying that the observations tentatively
made in this judgment as to
the possible veracity or lack of it of the new evidence are in no way
to influence the magistrate who
will assess the evidence
independently and after having heard the witnesses testify and be
cross-examined.
[42]
The
following order, which is in accordance with the orders made in cases
such as
R v Kanyile
and Others
1
6
,
R v Jantjies
1
7
,
S v Zondi
1
8
,
S v Njaba
1
9
and S v Myende
2
0
,
is made:-
(1) The appellant’s conviction and sentence on a
charge of raping the complainant is set aside.
(2) The case is remitted to the trial court (Regional
Magistrate M S Dunywa) to:
(a) hear such evidence, if any, as the State or the
accused may wish to give or call or the court may consider it
necessary to call
in the interests of justice relating to the issues
raised in the said affidavits filed in this court;
(b) hear the evidence of the deponents to the affidavits
filed in this court in the application of the appellant (accused) to
lead
further evidence, such evidence being subject to further
examination, cross-examination and re-examination;
(c) consider such evidence, hear argument thereon, and
give a decision
de novo
on all the evidence.
(3) In making the orders set out in paragraph 2 no
derogation is intended from the provisions of s 151(1)(b) of the
Criminal Procedure
Act 51 of 1977.
----------------------------------------
R
H ZULMAN
JUDGE
OF APPEAL
MARAIS
JA )
NUGENT
JA ) CONCUR
1
1939 AD 188 at 202 - 203
2
1965 (2) SA 612 (A) at 613 C-D
3
1998 (1) SACR 260 (SCA) at 262 g-h
4
See for example
R v Jantjies
1958 (2) SA 273 (A) at 279 B-F,
S v N
1988(3) SA 450 (A) E-J at 458 and
S v de Jager
supra at 613 A-B
5
See for example
R v Van Heerden and Another
1956 (1) SA 366
(A) at 372B – 373A,
S v Nkala
1964 (1) SA 493 (A) at 497 H
and
Ladd vMarshall
(1954) 3 All ER 745 at 748 A-H.
6
Ogilvie Thompson JA in
S v Zondi
1968(2) SA 653 (A) at 655
F-G.
7
Cf S
v Myende
1985(1) SA 805 (A) at 811 C-F.
8
Cf
S v Lehnberg and Another
1976 (1) SA 214 (A) at 216 G and
S v N
(supra) at 464 B-C.
9
Smalberger JA in
S v H
(supra) at 263 c-d.
1
0
1981 (4) SA 385 (K) at 391A – 392H.
1
1
(Supra) at 263 c-e.
1
2
1971 (2) SA 388 (W) at 390 F-G.
1
3
Supra at 391 A – 392 H.
1
4
Supra at 613 C-D.
1
5
Cf R v Weimers
and Others
cf 1960 (3) 508 (A) at 515 C-F.
1
6
1944 AD 293 at 295.
1
7
Supra at 279 F-H.
1
8
Supra at 657 D-F.
1
9
1966 (3) SA 140 (A) at 145 D-E.
2
0
Supra AT 812 A - B.