S v M (397/2001) [2002] ZASCA 75; [2002] 3 All SA 599 (A) (31 May 2002)

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[2002] ZASCA 75
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S v M (397/2001) [2002] ZASCA 75; [2002] 3 All SA 599 (A); 2003 (1) SA 341 (SCA); 2002 (2) SACR 411 (SCA) (31 May 2002)

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Certain
personal/private details of parties or witnesses have been
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Policy
IN
THE SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
Case No 397/01
Reportable
J.M.
APPELLANT
And
THE
STATE
RESPONDENT
_____________________________________________________________
Coram: HARMS,
BRAND JJA et HEHER AJA
Heard: 22
MAY 2002
Delivered: 31 MAY 2002
Criminal
procedure – appeal – remittal for further evidence – duty of
court hearing application.
Criminal
procedure – recall of witness for further cross-examination –
refusal – when justified.
Criminal
procedure – irregularity – policeman interfering with defence
witness – effect.
Evidence
- s 227 (2) of CPA – adducing evidence or cross-examining
complainant on previous sexual experience – duty of court
– when
permissible.
Evidence
– improperly or illegally obtained – when admitted – real
evidence – nature and weight to be accorded.
J
U D G M E N T
HEHER AJA/…
HEHER AJA
:
[1]
The appellant, a trade union organiser,
aged 36, was tried in May 1997 before a regional magistrate for the
rape of his six year
old daughter during 1989. He was convicted and
sentenced to 10 years imprisonment. He appealed to the Natal
Provincial Division
of the High Court, applying at the same time for
the remittal of the case for the hearing of two further witnesses for
the defence.
The application succeeded in April 1998.
[2]
In January 1999 the trial reopened. Both
witnesses eventually testified. An application by the appellant’s
counsel for the
recall of the complainant for further
cross-examination was refused by the magistrate. He convicted the
appellant as before and
imposed the same sentence.
[3]
The Natal Provincial Division dismissed a
further appeal but granted leave to appeal to this Court. (The
judgment of the Court
a quo
is reported
sub nom S v M
at
2000 (2) SACR 474.)
[4]
This appeal concerns alleged irregularities
and the merits of the conviction. Before discussing the nature of
the irregularities
and the circumstances in which they arose, it will
conduce to a better understanding if I summarise the evidence as it
stood when
the application to reopen was granted.
[5]
For the State, the witnesses had been the
complainant, the complainant’s maternal grandmother (Mrs M.) and a
district surgeon.
The appellant and his sisters Zanele and Siphiwe
Myeni testified for the defence.
[6]
The complainant was thirteen years old when
she gave her evidence in 1997. She told the Court that during 1989
she stayed with
her father and her aunt Z.. Her parents were
divorced. Her mother lived in Johannesburg. She and her aunt shared
a bed. Every
night her father would come and take her, often half
asleep, to his own room. There he would have sexual intercourse with
her.
She, not having an understanding of what was happening, did not
protest although she suffered initial bleeding and severe pain.
She
estimated the period of such abuse at “more or less six months”.
She claimed that she complained several times to her
aunt Z.. This
occurred from a few weeks after the abuse started. During 1995 the
complainant wrote a letter to her grandmother
which contained
allegations against the appellant. According to the complainant
“when my granny read the letter she also cried
and I also cried.
Then my granny told my elder aunt. Then my granny did not know how
to tell my mother and she was scared to
tell my mother, so it just
kept quiet like that.” During the school holidays of 1996 the
complainant saw an advertisement on
television about Child Line. She
phoned its number and told a lady that she had been raped and that
she did not know how to tell
her mother. An immediate call was made
to the grandmother (whose telephone number the complainant had
furnished). Eventually
the complainant’s mother was informed. A
charge was laid against the appellant. On 31 July 1996 the
complainant was examined
by the district surgeon of her home
district.
[7]
The
complainant’s grandmother confirmed that the complainant had
resided with the appellant during 1989. She identified the letter

received by her from the complainant in December 1995 when the
complainant was in standard 5. She decided not to contact the

complainant’s mother who lived far away because she was not sure
what her reaction would be. The witness also testified about
an
incident in 1994 when the complainant who was visiting her became
ill. She noticed something amiss with her genitalia and examined
the
complainant. Her evidence was consistent with the contents of the
letter which the complainant wrote to the grandmother and
suggests
that this incident may have provoked the letter. It is significant
that the incident and the letter preceded the laying
of a charge by a
considerable time.
[8]
The
evidence of the district surgeon played an important role in the
conclusion of the trial Court and on appeal. At the time
of his
examination of the complainant a history was furnished of sexual
assaults on more than ten occasions. He conducted an
examination
that was painful for the complainant. She had no hymen. He found a
chronic irritation of the vaginal walls and hypertrophy
(enlargement)
due to overgrowth of tissue of the lateral wall of the right labia
minora, a condition usually attributable to persistent
trauma to the
same area, which could have been caused by a penis or sexual abuse.
With such an injury intercourse would be painful
each time it
occurred. He said that he was unaware of any sexually transferable
disease which could have caused the condition.
Pelvic tissue heals
easily. Accordingly, he found it difficult to estimate how long the
complainant might have been exposed to
abuse or when in relation to
his examination that might have occurred. It was possible that it
could have happened as long ago
as 1989.
[9]
The
appellant denied any sexual abuse of the complainant by him although
he did not dispute, in general terms, that it had taken
place; he
was very fond of the complainant and would not have abused her.
Asked why the complainant should make such allegations,
he gave three
reasons: first, his separation from the complainant’s mother in
1984 which caused friction between their respective
families;
secondly, in August 1995 he had called the complainant and told her
he was making preparations to pay lobola for one
Orella Sithole with
whom he was then in love, which caused an angry reaction from the
complainant. This was the first sign of
a change for the worse in
her attitude towards him. He told the complainant he was planning to
marry in September 1997 and she,
as a result, went to stay with her
grandmother. Thirdly, the grandmother harped on the break-up of the
marriage whenever they
encountered each other. The appellant alleged
that the complainant told him that she was influenced by her mother
and grandmother
to lay the charge. That, he said, was why he had
earlier referred to the friction between the families.
The
remittal proceedings
[10]
Because I have reached the conclusion that inadequate
consideration was given to the remittal application and, in
consequence,
a lengthy and unnecessary prolongation of the trial
resulted, it is advisable to refer at some length to those
proceedings. In
doing so the fate of this appeal will also become
clearer.
[11]
The
appellant gave notice that an application would be made at the
hearing of the first appeal in terms of
s 316
(3) of the
Criminal
Procedure Act 51 of 1977
for the setting aside of the conviction and
sentence and the remittal of the matter to the regional magistrate to
hear the evidence
of Siphamandla Ngema and Eli Khumbuza.
[12]
In
his founding affidavit the appellant stated that he had been unaware
during his trial that the complainant had a boyfriend.
When that
came to his notice after he was sentenced the appellant made
arrangements to contact the boyfriend (Ngema). Ngema duly
made an
affidavit in which he stated that he and the complainant used to have
sexual intercourse. The appellant also attached
an affidavit by Ms
Khumbuza in which she confirmed that the complainant had tearfully
admitted that she was influenced to incriminate
him by her mother and
grandmother. He stated that Ngema was not know to him until after
the trial and Khumbuza was not available
to give evidence at it.
[13]
Ngema
deposed to an affidavit which was used in support of the application
in which he said
‘
1. I am the student doing standard 9 at Gudu High
School, Nqutu district. I was born on the 28
th
April 1979.
I know the Complainant Lungile Myeni and his father
J.M. since 1993.
In June 1993 when the schools were closed for winter
holidays I saw L.M. at Mondlo Township and I started to proposed her
and
we fell in love the same month.
At that stage L.M. was not staying in the Mondlo
Township but she was staying at Lakeside Oak Street Vryheid. She
used to come
to Mondlo Township during the week-ends and holidays.
In 1993 I had sexual intercourse with L.M. once in
1993. She came to my home during the absence of my grandmother and
my sister
who were staying with me.
I continued to have sexual intercourse with L.M. at my
home in 1994, 1995, 1996 until she was taken away by her mother to
Johannesburg
in 1996.
I cannot say how many occasions I had sexual
intercourse with L.M. in 1994, 1995, 1996 but it was at intervals of
about three
months.
I was contacted by Mandla Mtambo who is a student at
Gudu High School that the Attorneys for J.M. wanted to take this
Affidavit
from me and that I should meet Mr Mkhize at Vryheid
Magistrate’s Court on the 30 October 1997.’
[14]
Whether
the State opposed the application is not clear. Probably it did not.
The judges who granted the order (Jappie J and
Moodley AJ) contented
themselves with the briefest of reasons, noting that they had read
the application and were satisfied that
the affidavit complied with
s
316
(3). (The Court
a quo
also seems to have regarded that
section as setting out the applicable law.) In fact
s 316
did not
authorise the relief which was claimed. That section relates to
applications for leave to appeal by an accused who has
been convicted
of an offence before a superior court. The appropriate legislation
was either s 22 (a) of the Supreme Court Act
59 of 1959 or s 304 (2)
(b) read with
sec 309
(3) of the
Criminal Procedure Act:
S
v
Venter
1990 (2) SACR 291
(NC) 294 c - d. Although
s 316
(3)
contains a codification, unamended, of the common law requirements
for adducing evidence on appeal or on remittal (
S v Nofomela
1992 (1) SACR 277
(A) 282 f - h,
S v Dampies
1999 (1) SACR
598
(O),
S v Venter supra
295 d – g) the law applicable to
the application was the common law to which reference will be made
below.
[15]
The failure of the Court which heard the
application to furnish proper reasons had three consequences. First,
the Court did not
undertake the practical exercise of applying the
law to the facts, which might have illuminated the error in placing
reliance
on
s 316.
Secondly, the magistrate was left in the dark as
to what, in the eyes of the Court, the relevance was of the new
evidence and
why the Court deemed it to be relevant. Thirdly, and
most important, the Court would have been obliged to spell out its
reasons
for being satisfied that the appellant had indeed made out a
case in terms of the applicable law, an exercise which would probably

have dispelled any satisfaction.
[16]
As
to the power of the Court to remit in order to hear further evidence,
Corbett JA said in
S v N
1988 (3) SA 450
(A) at 458 E – 459
A
‘
It is a power which the Court exercises only in
exceptional cases for:
“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 reopened and
amplified. And there is always 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 613B.) The possibility of the fabrication of testimony
after conviction is an ever present danger in such matters (see
R
vVan Heerden and Another
1956 (1) SA 366
(A) at 372H – 373A;
S v Nkala
1964 (1) SA 493
(A) at 497 H;
S v Zondi
1968
(2) SA 653
(A) at 655F). For these reasons this Court has in a long
series of decisions laid down certain basic requirements which must
be
satisfied before an application for the re-opening of a case and
its remittal for the hearing of further evidence can succeed.
These
were summarized by Holmes JA in
De Jager’s supra
(at 613C –
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 143H).
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
S v
Nofomela, supra,
(at 284I) Nienaber JA, dealing in an analogous
context, with evidential material which a court might properly make
the subject of
a remittal, pointed out
‘
One is here
dealing with relevance. “Relevancy is based upon a blend of logic
and experience lying outside the law” (per
Schreiner JA in
R v
Matthews and Others
1960 (1) SA 752
(A) at 758 A – B).
Relevance can never be reduced to hard and fast rules and some
allowance must be made for unforeseen and
extraordinary cases.’
[17]
If
the considerations mentioned by the learned Judges of Appeal in
S
v N
and
S v Nofomela
had been applied to the application
several matters of critical importance to the future conduct of the
case must surely have become
apparent:
(1) The evidence which Khumbuza could give had been
known to the appellant at the time of the trial. In fact he had
given evidence
under cross-examination which related to the very
incident which was the subject of her affidavit. (The Court which
heard the
application was, of course, the appeal court and it could
not properly have decided the application without studying the
evidence
which had been led at the trial.)
The
appellant did not set out any factual basis for his allegation that
Khumbuza was not available to attend the trial. Nor did
she confirm
her non-availability. (In fact, when she eventually gave evidence,
she admitted that she had been available but
attributed the failure
to call her as a witness to a conscious decision by the appellant’s
attorney.)
The
Court was faced with the say-so of the appellant that the witness
Ngema was not known to him during the trial, without any
explanation
as to how he became aware of the witness’s existence. His mere
word was, however, not sufficient to satisfy the
first leg of the
test which requires an applicant to set out allegations from which
an appearance of truth may be derived. (In
fact, the explanation
given in evidence by Ngema for his contact with the appellant while
latter was in custody pending appeal
was suspect in the extreme and
could hardly have satisfied the requirement which had been set up at
the application stage.)
The judges were, it seems, unconscious of
the frailty of which this Court warned in
S v N
,
supra
.
(4) The contemplated evidence of Khumbuza was
entirely neutral to the issue of whether the appellant was the person
who raped
the complainant. (As the evidence and the judgment of the
magistrate revealed, that forced intercourse had been inflicted on
the complainant was not in issue by the end of the first trial.) She
stated that the complainant had been told by her mother and

grandmother to lay the charge. So one would expect in the case of a
child. She attached no nuance to the allegations. That the

complainant said that she was told the appellant was not her natural
father could just as well have meant that mother and grandmother

regarded his assault on his daughter as unnatural. The averment was,
in any event, irrelevant to the issue.
(5)
The proposed evidence of Ngema that he and the complainant had
engaged in a sexual relationship in the years 1993 to 1996
had no
bearing on whether the appellant raped the complainant in 1989. On
the facts available from the appeal record, casual consensual

intercourse of the kind deposed to by Ngema was wholly inconsistent
with the physical consequences of sexual abuse identified by
the
district surgeon.
(Points (4) and (5) illustrate that the
application failed to demonstrate the material relevance of the
evidence of either witness
to the identification of the appellant as
the assailant.)
(6) The purpose of adducing the evidence of Ngema
could only be to attack the credibility or character of the
complainant.
However, as Du Toit
et al, Commentary on the
Criminal Procedure Act,
24-100A, note
, ‘conventional wisdom’
in relation to the common law is that -
‘
the
accused may not lead evidence of the complainant’s acts of
misconduct with other men (see
R v Adamstein
1937 CPD 331)
unless those acts have a relevance to an issue other than by way of
character, but such acts may be put to her in cross-examination,

since they may be relevant to her credibility. It is true that such
evidence will usually be irrelevant to the substantive issues

confronting the Court; but not always.’
Faced
with that statement of the common law, the Court must necessarily
have experienced difficulty in allowing the application
to reopen to
in order to call Ngema. But the position would have become even
clearer if the Court had considered
s 227
of the Criminal Procedure
Act which, since 1989, has provided that
‘
(2) Evidence
as to sexual intercourse by, or any sexual experience of any female
against or in connection with whom any offence
of a sexual nature is
alleged to have been committed, shall not be adduced, and such female
shall not be questioned regarding such
sexual intercourse or sexual
experience, except with the leave of the Court, which leave shall
not be granted unless the Court
is satisfied that such evidence or
questioning is relevant: Provided that such evidence may be adduced
and such female may be
so questioned in respect of the offence which
is being tried.
(3) Before
an application for leave contemplated in subsection (2) is heard, the
Court shall direct that any person whose presence
is not necessary
may not be present at the proceedings, and the Court may direct that
a female referred to in subsection (2) may
not be present.’
The
members of this Court are not aware of any instance where s 227 (2)
has been applied in this country. It seems likely that
it is more
honoured in the breach than in the observance. Since it requires of
the courts that it be applied in the manner in
which it was no doubt
intended namely to militate against offensive, hostile and irrelevant
questioning of complainants without
thereby diminishing a full and
just investigation of the real issues in the case, it may be as well
to make certain comments concerning
the proper application of the
section.
So-called
“rapeshield” legislation, as s 227 (2) is, has been passed in
many jurisdictions
inter alia
the United States, the United
Kingdom, Canada, New Zealand and the Australian States. Ligertwood,
Australian Evidence
, 3rd ed 165 summarizes what appears to be
the common background to such enactments:
‘
Cross-examination
is normally permitted on grounds of relevance, either to the issues
in the case, or to determining the witness’s
general
creditworthiness. Courts have allowed cross-examination of a victim
regarding past sexual history on both grounds. It
is worth noting at
the outset that, where the cross-examination is of relevance to the
issues in the case, matters raised in cross-examination
may be taken
further by the defence and made the subject of separate and perhaps
contradictory evidence called as part of the accused’s
case. On
the other hand, matters of general creditworthiness are regarded as
collateral matters which cannot be pursued beyond
cross-examination.
The witness’s answer is final.
The
difficulty is in determining when sexual experiences are relevant,
either to the issues or to the general creditworthiness of
the
victim. Controversy has arisen because (male) common law judges have
allegedly been all too willing to allow the (female)
victim’s
previous sexual character to be revealed, most often in
cross-examination. In consequence, victims wanting to prosecute

their assailants have had to be prepared to subject themselves to the
ordeal, at both committal and trial, of a long and searching

cross-examination on their sexual experiences and attitudes.
Needless to say, the potential humiliation and embarrassment of this

ordeal, whereby the victim is effectively also put on trial to defend
her moral character, has discouraged victims from prosecuting
their
assailants. This controversy has led to legislative protection
against gratuitous revelation of a victim’s character.’
Section
227 (2) is in substantially the same terms as s 2 (1) of the
English Sexual Offences (Amendment) Act 1976. In
Rex v
Viola
1982 (3) All ER 73
(CA) at 77 Lord Lane CJ said of s 2
‘
Having said that, [that it is wrong to speak of the
exercise of a discretion in the context] when one considers the
purpose which
lay behind the passing of the 1976 Act, as expounded by
Roskill LJ [in
R v Mills
(1979) 68 Cr App R 327], it is clear
that it was aimed primarily at protecting complainants from
cross-examination as to credit,
from questions which went merely to
credit and no more. The result is that generally speaking (I use
these words advisedly, of
course there will always be exceptions) if
the proposed questions merely seek to establish that the complainant
has had sexual
experience with other men to whom she was not married,
so as to suggest that for that reason she ought not to be believed
under
oath, the judge will exclude the evidence. In the present
climate of opinion a jury is unlikely to be influenced by such
considerations,
nor should it be influenced. In other words
questions of this sort going simply to credit will seldom be allowed.
That is borne
out by the cases to which we have been referred, not
only those which I have cited, but other unreported cases which have
been
before this Court, to which perhaps it is not necessary to make
reference.
On the other hand, if the questions are relevant to an
issue in the trial in the light of the way the case is being run, for
instance
relevant to the issue of consent, as opposed merely to
credit, they are likely to be admitted, because to exclude a relevant
question
on an issue in the trial as the trial is being run will
usually mean that the jury are prevented from hearing something
which,
if they did hear it, might cause them to change their minds
about the evidence given by the complainant. But, I repeat, we are

very far from laying down any hard and fast rule.
Inevitably
in this situation, as in so many similar situations in the law, there
is a grey area which exists between the two types
of relevance,
namely relevance to credit and relevance to an issue in the case. On
one hand evidence of sexual promiscuity may
be so strong or so
closely contemporaneous in time to the event in issue as to come near
to, or indeed to reach the border between
mere credit and an issue in
the case. Conversely, the relevance of the evidence to an issue in
the case may be so slight as to
leave the judge to the conclusion
that he is far from satisfied that the exclusion of the evidence or
the question from the consideration
of the jury would be unfair to
the defendant.’
(Although the restriction on the judge giving leave to
adduce evidence or ask questions only if he is satisfied that it
would be
unfair to the defendant to refuse to allow the evidence to
be adduced or the question to be asked, is not included in our Act as

it was in s 2(2) of the English statute, such a consideration is, no
doubt, a matter to be taken into account in the exercise of
a proper
judgment on s 227(2).)
The
dictum
of Lord Lane applies with equal force to s 227 (2).
With
regard to the learned judge’s reference to a ‘grey-area” it has
subsequently been stressed that although the dividing
line between
issue and credibility is often extremely fine, the distinction needs
to be kept in mind in order to preserve clarity
of thought and
accuracy of judgment:
R v Funderburk
90 Cr App R 466;
Archbold,
Criminal Pleading Evidence and Practice
1998 para
20 – 43;
Phipson on Evidence
15 ed para 19 – 40. There
was apparently reason to doubt whether s 2 achieved its aims. See
Louise Ellison,
Cross-examination in Rape Trials
1998 CLR 605.
The section has now been replaced by ss 41 – 43 of the
Youth
Justice and Criminal Evidence Act
1999 which further limits the
right to adduce evidence and cross-examine complainant in sexual
cases. See
Phipson on Evidence op cit
at para 19 – 29
et
seq.
In
Canada, s 276 of the Criminal Code sets out specific aspects which a
court is obliged to take into account in determining admissibility
of
evidence relating to sexual activity of a complainant. See the
discussion in Martin’s
Annual Criminal Code
2000 at CC /
510
et seq
. These aspects are
‘
(a) the interests of justice, including the right of
the accused to make a full answer and defence;
(b) society’s interest in encouraging the reporting
of sexual assault offences;
(c) whether
there is a reasonable prospect that the evidence will assist in
arriving at a just determination in the case;
the need to remove from the fact-finding process any
discriminatory belief or bias;
(e) the risk that the evidence may unduly arouse
sentiments of prejudice, sympathy or hostility in the jury;
(f) the
potential prejudice to the complainant’s personal dignity and right
of privacy;
the
right of the complainant and of every individual to personal
security and to the full protection and benefit of the law;
any
other factor that the judge, provincial court judge or justice
considers relevant.’
These
are matters which would
mutatis mutandis
be proper for a South
African court to consider in judging the admissibility of evidence
under s 227 (2) in our constitutional
dispensation even in the
absence of specific statutory prescriptions. It can be noted that if
the trial Court had applied tests
of this nature (over and above a
plain enquiry as to relevance) the evidence of Ngema could hardly
have been admitted.
The
South African Law Commission published
Discussion Paper
102
relating to Project 107, ‘
Sexual Offences : Process and
Procedure
’ in December 2001. Chapter 32 concerns ‘
Evidence
of the Previous Sexual History of the Complainant’
and surveys
the state of law directed to similar ends as those of s 227 in many
other jurisdictions. In their evaluation the
researchers conclude
(at 501) that s 227 has to some extent failed of its purpose and that
‘[t]he unfettered discretion given
to presiding officers to
determine the admissibility of such evidence on the broad and
subjective basis of relevance seems to be
a large part of the
problem’. Accordingly they propose that s 227 be amended ‘to
clearly delineate the circumstances under
which evidence of previous
sexual history may be adduced’. In the draft amendment a
subsection is included which provides that
a court shall grant an
application to adduce evidence of or put questions about previous
sexual experience or conduct of a complainant
if it is satisfied
that such evidence or questioning –
‘
(a) relates to a specific instance of sexual activity
relevant to a fact in issue;
(b) is likely to rebut evidence previously adduced by
the prosecution;
(c) 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; or
(d) is
not substantially outweighed by its potential prejudice to the
complainant’s personal dignity and right to privacy; or
(e) is
fundamental to the accused’s defence.’
Whether or not the proposal becomes in due course the
subject of
legislation, the matters identified must, even in the
present state of the law, be regarded as considerations of great
importance
in arriving at a properly-considered judgment on
admissibility in terms of s 227 (2). The proposed evidence of Ngema
would have
not been admitted after due regard to any of these
considerations either.
It
follows that I agree with Du Toit
et al, op cit
at 24-100B
that in deciding whether to allow evidence of such a nature,
‘
several … policy concerns which militate against
admissibility … must be taken to the balance. These include the
need to protect
witnesses from hurtful, harassing and humiliating
attacks, the recognition of a person’s right to privacy in the
highly sensitive
area of sexuality and the realisation that the
exposure of their sexual history may deter many victims of sexual
offences from
testifying.’
One is here dealing with an issue which requires of a
trial Court great sensitivity and about which strongly conflicting
views may
be held. See eg
Sexual History Evidence – The
Ravishment of Section 2
by J Temkin
[1993] Crim LR 3.
There is
a responsibility on practitioners and the courts to uphold the spirit
of the legislation. In the case with which we
are concerned, all
appreciation of the statutory requirements and niceties seems to have
escaped the trial Court. The evidence
of Ngema served no purpose
other than the impermissible one of destroying the complainant’s
credit.
But,
unless Ngema’s proposed evidence could be said to be relevant in
the sense of tending of itself or in combination with other
facts to
prove or disprove the identity of the assailant,
R v Katz &
Another
1946 AD 71
at 78, having regard to logic and common
sense,
R v Matthews
,
supra
loc cit
, the trial
Court would not have been empowered to admit it and the application
for remittal had to fail. That it was not relevant
in that sense was
clear from a reading of Ngema’s affidavit with the evidence which
had already been led.
[18]
For all the reasons set out in the preceding paragraph
the matter should have been stopped in its tracks at the application
stage.
[19]
The fact is that the trial was reopened. Section 227 (2) has,
however, an even more fundamental effect on what happened
subsequently.
The evidence which the defence proposed to adduce from
Ngema could only be admitted with the leave of the trial court if
that
court was satisfied of its relevance. However, when the trial
was reopened no application was made to the magistrate under the

section and the evidence was led without demur or apparent
consideration of its relevance. Perhaps he felt bound by the
remittal,
but the decision in terms of s 227 was his alone,
notwithstanding any implication which may have flowed from the order
or remittal.
Having regard
to the force of the prohibition, its purpose, the public policy
involved, and the manifest absence of relevance,
I consider that the
proper approach at this stage would be to rule that the whole of
Ngema’s testimony was wrongly taken and
should regarded as struck
from the record. That effectively disposes of a substantial part of
the appeal. Since, however, this
point has been reached before even
touching upon the reasoning of the two previous Courts and the
arguments addressed to us in
the appeal, it seems fair to give
consideration to those aspects.
The
irregularities relied on in the appeal.
[20]
I
propose to deal first with the alleged irregularities which occurred
before and during the reopened trial. When the defence
led the
evidence of Ngema at the reopened trial the witness testified that
on 11 August 1998 he had been arrested at school
by Captain Zwane,
the investigating officer in the rape case, apparently on a charge of
having sexual intercourse with the complainant,
a girl under the age
of sixteen years. Zwane showed Ngema a copy of his statement which
had been used in support of the application
and asked him to identify
it, which the witness did. Zwane then told the headmaster that
bail would be fixed at R4 000.
He took the witness to the police
station. There he told him that the statement which he had made had
been wrong and instructed
him to write out another statement. He
threatened the witness with 40 years in custody if he did not comply.
He did not tell
the witness how he was to change the statement.
Ngema refused. Zwane then took him to his grandmother. He informed
her that
he was arresting the witness for the offence of having
intercourse with the girl under the age of 14 years (
sic
). He
instructed her to come to the police station before the witness made
a statement. She did so. Zwane once again (apparently
in her
presence) ordered Ngema to make a statement, telling him that he had
asked the complainant about the witness and she had
denied knowing
him. Furthermore, he threatened that if Ngema did not want to tell
the truth he would lock him up and thereby
prevent him from writing
his school examinations. Zwane asked his grandmother whether
she had R10 000 for bail. When
she replied that she did not, the
witness decided to change his statement. Zwane then took down the
new statement. The second
statement, Ngema said in evidence, was
false while the first contained the truth. The statements were
handed in as exhibits.
[21]
Ngema’s evidence concerning the genesis
of the second statement was not challenged by the prosecutor in
cross-examination. Captain
Zwane was not called in rebuttal.
[22]
During
the course of the evidence of Ngema the prosecutor asked, “Is it
correct, Mr Ngema, that you received a letter from the
accused?”
He received a positive reply from the witness. The prosecutor
produced the letter, but, before he could show it
to the witness, the
appellant’s counsel intervened
‘
No, Your Worship, before the letter is handed [in],
may the Court make a ruling whether the letter that was obtained in
the circumstances
sketched by the accused (
sic
) is admissible
as evidence … Whether the letter that was obtained when the IO had
arrested the defence witness is admissible
as evidence …’
Before taking
up the objection, the magistrate allowed the witness to identify the
letter and received it as an exhibit. Counsel,
asked to clarify the
grounds of his objection, said
‘
My
problem, Your Worship, I have outlined it, whether on the evidence
that has been sketched by the defence witness … that the
defence
witness was arrested and interrogated by Zwane, and hence certain
exhibits and statements were obtained from him, whether
those
statements and exhibits are admissible.’
The
record continues
‘
MR
MKHIZE
It is my submission, Your Worship, that what Captain
Zwane did was grossly irregular and any evidence that was obtained
from
the defence witness was obtained illegally, and that evidence
should not be placed on record … (indistinct)
COURT
Yes. I cannot see how the evidence was obtained irregularly
because the Captain investigated the matter where a person was

admitting that he had sexual intercourse with a girl under the age of
the prescribed age and he then investigated that matter,
and during
the course of that investigation certain information came to light.
I do not think it is inadmissible. The letter
is allowed.
MR
MKHIZE
Your Worship, I’m not aware of any case that was
investigated.
COURT
Well … (intervenes)
MR
MKHIZE
In fact my instruction was that the complainant had
not laid any charge against … (intervenes)
COURT
Well, he investigated what the – he investigated what is
prima
facie
an offence, not so?
MR
MKHIZE
But my understanding is that if … (intervenes)
COURT
Yes, sorry, Mr Mkhize. I received a statement by this witness,
your client, the defence witness, that an offence
prima facie
was committed. He investigated that matter, and he obtained
certain information during the course of that investigation. Whether

the witness was charged or not is irrelevant at this stage.
MR
MKHIZE
But I … (intervenes)
COURT
At this stage the policeman merely investigated a
prima
facie
case against him.
MR
MKHIZE
I … (intervenes)
COURT
He has not yet been charged. If he was charged, thereafter the
evidence can then become inadmissible at a subsequent trial,
but as
far as this witness is concerned, it is not inadmissible because it
was obtained during an investigation by the investigating
officer.
MR
MKHIZE
But I hold a different view of that. The defence
witness was a witness for the defence.
COURT
Yes.
MR
MKHIZE
And if the State or the policeman wanted to interview
any witnesses that the defence has disclosed to the State, rules of
justice
requires that the defence must be alerted and if the defence
requires that they should be present, they should be present during

the interrogation of their witnesses. My – I don’t think that it
was – there was a
prima case
case or
prima
face
… (intervenes)
COURT
I don’t know what he said in his statement. I assume that what
he said in his statement that was before the High Court was
that he
admitted that he had sexual intercourse with the complainant.
MR
MKHIZE
Your Worship … (intervenes)
COURT
At that stage – I haven’t – no statement was handed in here
as far as I can remember.
MR
MKHIZE
Yes, they were handed in.
COURT
Was it handed in?
MR
MKHIZE
Yes
COURT
Not in this trial. Not in this trial.
MR
MKHIZE
Your Worship, last time … (intervenes)
COURT
I don’t have any statement to that effect.
MR
MKHIZE
I handed in the application … (indistinct) that was
done in the High Court.
COURT
I haven’t got it here. Sorry. It was not formally …
(intervenes)
MR
MKHIZE
And on the .. (intervenes)
COURT
It was not handed to me. It was not handed to me. It was not
formally handed to me. It does not form part of these proceedings

before me.
MR
MKHIZE
As the Court pleases, Your Worship. May I hand in the
… (intervenes)
COURT
Well, no, Mr Mkhize, you’re now trying to confuse the issues. I’m
now dealing with your objection. Your objection is over-ruled.
MR
MKHIZE
As the Court pleases.
COURT
You can then, if you want to – or you should have, when you led
this witness’ evidence, handed in all those statements because
it
was obtained during the – the objection is over-ruled. Yes,
continue, please.
PROSECUTOR
Read – can you please read the contents of that statement into
the record?
COURT
Can I just make one further point clear to your, Mr Mkhize, and
that is that the admissibility of this document pertains to
your
client, or otherwise, not to the witness. How the policeman obtained
this evidence is irrelevant at this stage. Okay. Yes,
very well.
Can you continue, please? Read it into the record.’
[23]
The ruling on the admissibility of the letter was made somewhat
summarily. It was provisional and could have been reversed by
the
magistrate if good reason were adduced later in the trial.
Unfortunately, the defence counsel (aside from the incorrect
statement
that the evidence had shown that “certain exhibits” had
been obtained from the witness by Zwane in the course of
interrogation)
made no attempt to place any facts before the
magistrate concerning the procurement of the letter by the State,
whether by agreement
with the prosecutor or in re-examination of the
witness.
[24]
After
the conclusion of the evidence of the witness Ngema, the record
(which was reconstructed, the relevant tape having gone
astray)
reflects that the appellant’s counsel made an application that the
complainant be re-called for further cross-examination.
He
apparently used as grounds for this application the new evidence
which had been led since the complainant had testified and
in respect
of which no questions had been put to her during her original
evidence, and the need to clarify various issues which
had arisen
during the course of the additional evidence. There is some
indication that he intended to cross-examine generally.
Be that as
it may, the magistrate refused the application for the surprising
reason that “nothing new has come to light”.
[25
]
The
evidence of Ms Khumbuza given at the reopened trial does not require
careful analysis. In essence she confirmed the substance
of her
affidavit. The words which she attributed to the complainant when
the appellant asked her why she had laid a charge against
him were
“My mother and my grandmother said I must lay a charge against you,
and you are not my father”. The magistrate found,
rightly, in the
view of the Court
a quo
, and in my assessment, that the
evidence of Khumbuza was entirely neutral. It is therefore
unnecessary to say more about it in
the context of this appeal.
[26]
The evidence of the witness Ngema was, by contrast, anything but
neutral, albeit that it was also irrelevant. In substance
it
reflected his affidavit, although it contained some discrepancies
which are not of consequence to the appeal. After the magistrate

overruled his counsel’s objections to the admissibility of the
letter received by the witness from the accused, the accused was

cross-examined by the prosecutor. The circumstances of its receipt
and its content were explored.
[27]
It
was the submission of appellant’s counsel that the trial of his
client was unfair by reason of one or a combination of the
following
irregularities:
The
arrest, detention and interrogation of Ngema by the investigating
officer and the coercion on him to change his statement.
The
admission by the trial court of the statement obtained by the
investigating officer from the defence witness as a result of

threats.
The
admission by the trial court of the letter found in the possession
of the witness obtained during or in consequence of an
illegal
interrogation.
The
refusal of the magistrate to allow the complainant to be recalled
for further cross-examination at the close of new evidence.
The
effect of the irregularities was, counsel submitted, mortal to the
State case.
S v Ramalope
1995 (1) SACR 616
(A) 621 g – 622
b. Should the Court find that the irregularities were insufficient
to vitiate the proceedings, the evidence
untainted by the
irregularities fell short of proving guilt beyond a reasonable doubt.
There was accordingly a failure of justice.
S v Felthun
1999 (1) SACR 481
(SCA) 485i - 486a and the authorities there
cited.
[28]
It
will be convenient to deal with the first two grounds of irregularity
together. The overall conduct of the investigating
officer towards
the witness Ngema represented a gross and reprehensible departure
from the standards of fairness which the common
law recognises and
the Constitution guarantees to an accused person. The conduct of
the policeman leaves little doubt that the
arrest of the witness,
lawful though it may have been, was a stratagem in the process of
intimidating him with the object of
procuring at least a retraction
of his statement. The freedom of witnesses from interference,
whatever side they may take, is
a keystone in the temple of justice.
Without it the structure would disintegrate. The police, above all,
should preserve its
integrity as their own function would become
frustrated by its violation. No authority is needed for this
insistence. Indeed
there seems to be no case directly in point in
this country, but some guidance may be obtained from
R v Manda
1951 (3) SA 158
(A), a much weaker case on the facts than the
present. Schreiner JA said (at 166 H – 167 C)
‘
At
the preparatory examination the appellant was asked if he wished to
have any witnesses subpoenaed under the provisions of sec.
244 (2) of
Act 31 of 1917. He gave the names of three witnesses and in the case
of two of these the police then took statements
from them which were
available to the Crown for cross-examination. This should not have
been done. It is of course in general
the duty of the police to
collect all the available evidence that may throw light on the
commission of an offence and this Court
would certainly not wish to
raise obstacles to the due fulfilment of that duty. But statements
should not be taken from persons
whose ability to give relevant
evidence is only discovered as a result of an application by an
accused person for the assistance
provided by sec. 244 (2). That
section is an important aid in the proper administration of justice
and accused persons should
not be deterred from resorting to it at
the stage of the preparatory examination through fear that their
witnesses will go into
the box handicapped by their having given
statements to the police which may not necessarily contain full and
accurate accounts
of the evidence that they are prepared to give.’
See
also
Madumise v Motorvoertuigassuransiefonds
1983 (4) SA 207
(O) and
S v Mangcola
1987 (1) SA 507
(C).
[29]
The
behaviour of Captain Zwane in this case appears to have been so at
odds with his duty that one must express the hope that
the
authorities will embark on an appropriate enquiry if they have not
already done so. The degree of undermining of the witness
which
occurred, if one were to assume that his evidence was material to the
fate of the prosecution, was such as would, in the
absence of very
strong countervailing features, substantially nullify the accused’s
right to a fair trial by its severe violation
of his right to adduce
and challenge evidence. In the light of this very obvious
irregularity the magistrate was surprisingly
muted. However, the
magistrate did not again refer to the statement or the contradictions
between it and the statement in the
remittal application. His
finding that Ngema was a deliberate liar, set up to pull a red
herring across the record, derives from
problems with his evidence
unrelated to Captain Zwane’s machinations (save in relation to the
letter which the witness received
from the accused and to which I
refer below). This was also the approach adopted by the Court
a
quo
. The two previous courts were justified in the approach
which they adopted.
[30]
Turning to the third irregularity,
no foundation was laid by counsel in support of his objection to the
admission of the letter
received by Ngema from the accused. Albeit
that the magistrate ruled, somewhat summarily, that the letter was
obtained in the
course of an investigation into the offence of a
statutory rape and was therefore admissible, his ruling was
interlocutory and
always open to challenge by the defence after
laying a proper basis. But, as I have pointed out before, defence
counsel did not
seek to lead the witness in re-examination on the
circumstances in which the State obtained possession of the letter
and the ruling
stood. The magistrate did not refer to the matter in
his judgment. He did (with justification) use the letter to
establish the
origin of Ngema’s witness statement. This was
instrumental in fragmenting the witness’s credibility, and, if the
letter was
improperly admitted, must have had a substantial negative
impact on the fairness of the trial. The Court
a quo
gave no
separate attention to the admissibility of the letter. It seems to
have assumed that it was tainted by the improper interrogation.
After
a review of the authorities the Court concluded that it had a
discretion to exclude evidence improperly obtained, referring
to s 35
(5) of the Constitution,
Lawrie v Muir
1950 SC (J) 19
at 26,
Kuruma, Son of Kaniu v Reginam
[1955] 1 All ER 236
at 239,
S v Mushimba and Others
1977 (2) SA 829
(A) at 840 B,
S v
Hammer
and Others
1994 (2) SACR 496
(C),
S v
Motloutsi
1996 (1) SA 584
(C) and
S v Naidoo
and
Another
1998 (1) SACR 479
(N). To these may be added
S v
Mkhize
1999 (2) SACR 632
(W) and a thought-provoking article
‘
Exclusion of Evidence Illegally or Improperly obtained’
by G L Davies in the Australian Law Journal, Vol 76 (2002) 170.
There is no doubt that such a discretion exists based, at common
law
upon a proper balancing of the competing interests so clearly
identified in
S v Hammer, supra
, and under the Constitution,
upon the question of whether admission would or would not offend the
constitutional guarantee of the
right to a trial conducted in
accordance with notions of basic fairness and justice inherent in
civilized systems of criminal
administration.
Key v
Attorney-General, Cape Provincial Division and Another
[1996] ZACC 25
;
1996 (4)
SA 187
(CC) at paras [11] to [13]. In the words of section 35 (3),
evidence obtained in a manner that violates any right in the Bill
of
Rights must be excluded if the admission of that evidence would
render the trial unfair or otherwise be detrimental to the
administration of justice. I have already referred to the dearth of
evidence explaining how the State came into possession of
the
letter. That it was obtained in violation of a constitutional right
of the witness is, in the circumstances, no more than
speculation.
[31]
Real
evidence which is procured by illegal or improper means is generally
more readily admitted than evidence so obtained which
depends upon
the say-so of a witness (see eg
R v Jacoy
(1988) 38 CRR 290
at
298) the reason being that it usually possesses an objective
reliability. It does not “conscript the accused against himself”

in the manner of a confessional statement (
R v Holford
[2001]
1 NZLR 385
(CA) 390). The letter in this case can be classified as
real evidence of a documentary nature (notwithstanding the doubts
which
the Court
a quo
expressed). Real evidence is an object
which, upon proper identification, becomes, of itself, evidence (such
as a knife, photograph,
voice recording, letter or even the
appearance of a witness in the witness-box). Schmidt,
Bewysreg
4 ed 326, Hoffman,
The South African Law of Evidence
4 ed
404,
Cross & Tapper on Evidence
8 ed 48. The letter was
identified as having been written by the appellant. It was produced
and admissible as an object for examination
by the magistrate in
order to establish that it provided the origin of the evidence given
by the witness, irrespective of the truth
of its contents. It
predated the threat and owed nothing to it. Its reliability was
beyond question. There cannot be the slightest
doubt that it
contained an attempt by the appellant to suborn the witness and that
it was the very genesis of his witness statement
and subsequent
evidence. Its value as evidential material in the context of this
case was substantial. No privilege attached
to the communication or
its possession by the witness. The constitutional rights of the
appellant could not conceivably have been
infringed no matter how it
came into possession of the authorities. By sending the letter the
appellant exposed it to the vagaries
of fortune with the inherent
risk that it would fall into (what he would have regarded) as the
wrong hands or that the addressee
would disclose its contents to the
authorities. Whatever steps may be justified against the police
arising from the manner of
its procurement, that it was improperly
obtained from the third party does not in the circumstances of this
case bear adversely
on the fairness of the trial of the appellant.
In so far as there exists a residual common law power in the court to
exercise
a discretion to exclude evidence improperly obtained, the
facts to underpin such an exercise are absent. More particularly,
one
is unable to find that any conduct of Captain Zwane was
consciously directed to finding or obtaining possession of the
letter.
Nor can it be suggested that the admission of the letter
provides tacit approval or encouragement of improper conduct by the
police.
I find therefore that the Court
a quo
erred in
excluding reliance on the letter sent by the appellant to Ngema. Its
admission destroys the credibility of the witness
and reflects badly
on the appellant.
[32]
The final ground of irregularity relied upon relates to the refusal
of the magistrate to recall the complainant for further

cross-examination. The evidence of Ngema related to matters
peculiarly within the knowledge of the witness and the complainant.

In most circumstances there could be no question of disbelieving the
witness or finding his evidence false unless the salient
features of
his testimony had been put to the complainant and rebutted by her in
a manner so satisfactory as to enable the court
to make a finding
beyond a reasonable doubt. Compare
S v M
1970 (3) SA 20
(RAD), where the facts were comparable to those of the present case
and the court held that a failure of justice had occurred and,

finding that it would not be proper to remit the case for a second
time to the magistrate, quashed the conviction. The distinguishing

feature of that case is, however, the finding (at 24A) that the story
told by the crucial witness called in the remitted proceedings
did
not appear on the record to be so inherently improbable as to justify
its rejection out of hand as false beyond a reasonable
doubt. In the
present case the magistrate did find that the witness was so plainly
dishonest that it was unnecessary to trouble
the complainant further
and the Court
a quo
agreed. It followed that there was no
need to recall the complainant for further cross-examination. The
record fully justifies
that finding. I also agree with the
conclusion with the conclusion of the Court
a quo
that there
was not the remotest possibility that the complainant would have
agreed that she had a relationship with the witness.
Indeed the
witness himself conceded as much. An alternative approach would have
been to apply
s 227
(2) of the
Criminal Procedure Act: leave
to
recall the complainant for questioning about Ngema’s allegations
could not have been granted unless the court was satisfied
that the
questioning would be relevant; the court could not have been
satisfied on that matter and the application to recall the

complainant had to fail - even if the complainant had been recalled
and had admitted the relationship with Ngema it would have
taken the
accused’s case no further; if she had denied it, there was no way
of testing her veracity since she could not be
cross-examined on her
denial. It follows that the magistrate did not misdirect himself
in refusing to recall the witness.
[33]
One other consideration bears mention in
relation to the possible recall of the witness. The magistrate was
there to ensure that
justice was done in the broadest possible sense.
That involved not only fairness towards the accused but also towards
witnesses,
especially a vulnerable witness like the complainant. When
her recall was sought it would, I think, have been a proper
consideration
to weigh in the balance that the complainant should not
be subjected a second time to the indignity of having her private
life
laid bare unless there was a real prospect that the interests of
justice would be served by her recall.
Failure of justice?
[34]
One
may now consider whether a failure of justice resulted from the one
irregularity which has been identified.
[35]
As I have been at pains to show, all the new evidence was,
at the time of the first appeal, demonstrably irrelevant to the real
issue. During the second stage of the trial nothing was placed
before the magistrate which enhanced its value. That stage was

discrete in the sense that it followed the original conviction and,
being irrelevant, the evidence stood independent of the foundation
of
the conviction. In these circumstances a substantial irregularity in
relation to the second stage would only in the most exceptional

circumstances influence the preceding stage and thereby effect a
failure of justice. No such circumstances arose in this instance.
[36]
In
any event, the evidence of Ngema was flawed by very serious
improbabilities. He told of occasional consensual intercourse, but,

even allowing for the extreme youth of the complainant, such
occurrences were inconsistent with the trauma to her private parts

which was described by the district surgeon. If consensual
intercourse was not the cause then the injuries must have been
present
before or in the course of such relationship as Ngema may
have had with the complainant. But her physical condition, both as
observed
by her grandmother and in the sensitiveness of her organs on
examination by Dr Gumbi, was wholly inimical to willing participation

by either party. The age of the complainant in 1993 militates
strongly against the likelihood of an acceptance by her of the
proposal of love just as it renders far-fetched an objection by the
complainant that she was already engaged in a ‘love affair’.

The explanation offered by Ngema for discussing his affair with the
accused in jail was also fanciful. There was no apparent
connection
between the detention of the appellant and the affair (if it
occurred) and, even if there had been, it is unlikely
that the
witness would have thought it necessary or expedient to disclose it
in the interests of the appellant to whom he owed
nothing. One is
bound to conclude that no true explanation was furnished for the
contact made between the appellant and the witness.
The witness was
also shown directly to have been dishonest concerning whether his
relationship with the complainant extended into
1996.
[37]
The
improbabilities to which I have referred are in their totality only
consistent with a untruthful witness. The result is that,
even in
the absence of the letter, the witness added no strength to the case
of the appellant. With the assistance of the letter
the already
strong suspicion that he was procured by the appellant to give false
evidence becomes a certainty. Accordingly no
failure of justice
flowed from Captain Zwane’s improper interference with the defence
witness.
The
merits of the conviction
[38]
On the facts of this case there is no room for
bona fide
error or an over-vivid imagination. The rape of the complainant is a
given. The only question relates to the identity of the assailant.

Likewise the necessary implication from the facts is that the
complainant either spoke the truth or deliberately and falsely
implicated her father in the crime. The magistrate had the benefit
of observing the complainant. He found her to be both intelligent

and honest. The record reflects the correctness of that impression.
While no onus rests upon an accused person in respect of
the motive
of a complainant, the appellant in this case did offer three reasons
for the enmity of his daughter. None of them bears
examination.
There is no indication of vindictiveness in her testimony, indeed
it appears from the evidence of Khumbuza that
the complainant,
confronted by her father, was openly distressed at having to accuse
him. It is so that, taken on its own, no
grounds existed for the
rejection of the appellant’s evidence. But the right approach was
not to take it in isolation but rather
to examine it in the context
of the whole case in order to determine whether it could stand.
Judged in this light, the appellant
has failed to establish that the
courts below erred in their conclusion that the case had been proved
beyond a reasonable doubt.
[39]
The appeal is accordingly dismissed.
J
A HEHER
ACTING
JUDGE OF APPEAL
CONCUR:
HARMS
JA
BRAND
JA