THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Case number : 500/03
REPORTABLE
In the matter between :
ANGELO HAMMOND APPELLANT
and
THE STATE RESPONDENT
CORAM : BRAND, CLOETE JJA, COMRIE AJA
HEARD : 23 AUGUST 2004
DELIVERED : 3 SEPTEMBER 2004
Summary: Evidence ─ sexual misconduct cases ─ the purpose for which evidence
of a first report in a sexual misconduct case may be used, analysed and defined.
_________________________________________________________
JUDGMENT
CLOETE JA/
2
CLOETE JA:
[1] Much confusion has been ca used by the common law rule of
evidence which permits the fact and contents of a complaint in a sexual
misconduct case to be put before a court. The requirements for
admissibility of such evidence are not in issue in the present appeal. Its
permissible use is.
[2] The appellant was convicted of rape by a regional magistrate and
sentenced to ten years imprisonment. An appeal to the Cape High Court
was dismissed on the basis that there was no misdirection by the
magistrate. In fact the magistrate misdirected himself in several
fundamental respects. The court a quo refused leave to appeal further
but granted bail to the appellant pendi ng an application to this court for
such leave. The application was made and granted.
[3] The evidence was to the following effect. The appellant, with his
friends, came across the complainan t and her friends at the beach at
about noon on the day in question, which was a Sunday. The
complainant and her friends were drin king beer. The appellant and his
friends were drinking wine, which they shared with the complainant and
her friends. At about four pm the comp lainant left with the appellant and
3
his friends in the appellant’s motor car. He had promised to give her a lift
home to Mitchells Plain. She had to collect her children, who were with
what she termed her ‘parents-in-l aw’ (presumably the parents of her
divorced husband) because the ch ildren had to attend school the
following day. Instead, the appellant drove to Crossroads where beers
were purchased and thereafter, to Westridge where brandy was
purchased. The complainant admitt ed drinking four glasses of brandy
mixed with Coca Cola as well as several beers during these detours.
When they left Westridge, instead of taking her home, the appellant
drove back to the beach ─ according to the complainant, despite her
protestations and according to the appellant, with her express consent.
[4] The central dispute revol ves around what happened next. It is
common cause that the appellant had sexual intercourse with the
complainant at a sandy place about fifteen metres from the vehicle.
According to the complainant, t he appellant dragged her by her hair
during the course of which s he stumbled and gashed her leg, and
despite her protestations (she says she was hysterical) and the
resistance she put up, he raped her. According to the appellant, he
made amorous advances towards the complainant whilst they were in
his motor car, she reciprocated and they had consensual sexual
4
intercourse. The appellant’s version was that the complainant had
gashed her leg earlier, when she stum bled and fell. The appellant also
said that the complainant suggested that they return to her house so that
they could continue their liaison. The appellant’s evidence that the
complainant was a willing party was c orroborated by a defence witness,
Mr Mitchell. Mitchell, a close friend of the appellant, was with the
appellant and the complainant when they returned to the beach. He said
that he sat in the back seat of the vehicle and that after the appellant
and the complainant had sa t together in the front seat for a while, the
two of them walked off together. He specifically denied the complainant’s
version that she had been dragged away by her hair. It is common cause
that whilst the two of them were having sexual intercourse, Mitchell
walked over to them and asked the appellant how much longer they
were going to be.
[5] It is also common cause t hat after the appellant and the
complainant had had sexual intercours e, the appellant’s vehicle became
stuck in the beach sand. A Land Rover ar rived with four fishermen in it.
Two ─ Messrs Steyn and English ─ gave evidence on behalf of the
State. Steyn, somewhat hesitantly, es timated the time of their arrival to
have been around nine to ten pm. Bo th said that the complainant
5
approached them, alleged that she had been raped, attempted to climb
into their vehicle and asked them to call the police. According to Steyn:
‘She looked ─ she looked very wild and haggard… She looked like she had been
partying the whole afternoon… [S]he was a bit teary… She was teary. She was
crying… It is just her hair looked very wild like she had just woken up… She looked
like she was partying.’
According to English:
‘She was upset and her hair was all w ild and things… she was upset, she ─ I think
she was crying, ja. And anyway we proceeded to help these guys to get their car out
of the sand. And in that time she want ed to get into the van and she was mumbling
on about, you know, that she has been ra ped and things… She was upset. To my
mind she was upset, but I know ─ I am not a person with a breathalyser or anything
but to my mind she looked like she had been drinking, she had [had] alcohol of some
sort.’
[6] The fishermen pulled the appellant’s vehicle out of the sand. Both
Steyn and English said that the comp lainant did not want to leave with
the appellant. Steyn said that he did not believe her story that she had
been raped and the complainant conf irmed that this had indeed been
her impression. When the appellant’s vehicle got stuck in the sand
again, one of the fis hermen called the police ─ apparently because they
wanted to get rid of the complainant.
6
[7] The police, including Inspect or McNabb, arrived at the scene.
McNabb said that he was in the ch arge office when t he call to render
assistance was received at about 11 pm and that he was at the scene
about 10 minutes thereafter. McNabb said further that the complainant
was considerably upset, that he had talked to her after he had put her in
the front seat of the patrol van and that during this conversation she
began crying.
[8] The appellant and hi s three companions were arrested. They and
the complainant were taken to the po lice station. The complainant was
later taken by Inspector Hendricks from the police station to the district
surgeon, who examined her at 1:15 the following morning. The doctor
testified that such injuries as he f ound to the complai nant’s private parts
could have been sustained during consensual intercourse. He also
confirmed that the gash on her leg was consistent with both the State
and the defence versions as to how it had occurred.
[9] The magistrate found that the complainant was a very good
witness. He went on, however, to poin t out unsatisfactory aspects of her
evidence but concluded that he coul d not find that her evidence was
untruthful. The magistrate also found that despite the state of the
7
complainant’s sobriety, he could safely rely on her evidence, particularly
in view of the finding by the district surgeon ─ who, the magistrate said,
had examined the complainant s hortly after the incident ─ that she was
‘not drunk’. But Inspector McNabb, who had served in the police force for
9 years, said bluntly and without qua lification, both in his evidence-in-
chief and under cross-examination, that the complainant was drunk;
Inspector Hendricks said that when he went to collect the complainant
at about 1 am to take her to the di strict surgeon, she was asleep in the
charge office; it was in fact at least two and possibly more than four
hours after the incident when the district surgeon examined the
complainant; and the district su rgeon readily conceded in cross-
examination that she could have so bered up in the meantime. Inspector
McNabb’s evidence also impacts adversely on the complainant’s
credibility. She claimed that she was sober and that her faculties had not
been impaired even although she had had what she termed a little drink
(‘’n drinkie’) ─ which she defined as six b eers or a bottle of brandy. In
view of the quantity and variety of alcohol which she had imbibed and
the evidence of Inspector McNabb, her evidence as to her sobriety falls
to be rejected.
[10] The magistrate found that t he appellant had not contradicted
8
himself; said that he had given his evidence very clearly; and
commented that he had sketched a ve ry good picture for the court of
what had happened. He was obviously a good witness. The magistrate
further found that there were no material contradictions between the
evidence of the appella nt and the defence witne ss, Mitchell. But the
magistrate said that Mitchell did no t impress him at all. This view was
based partly on the fact that Mitchell, as a co-accused, had been present
in court until he was discharged at t he end of the State case and also
the fact that he had constantly looked towards the appellant and his
attorney before answering questions in cross-examination. The first point
of criticism cannot carry much we ight as Mitchell was presumably not
present when the appellant gave his evidence-in-chief or was cross-
examined, otherwise this would no doubt have been brought out by the
prosecutor and would have been cause for comment by the magistrate.
Of course Mitchell was present when the appellant’s version was put to
the complainant; but that was al so his version and he was cross-
examined on it. So far as the second point of criticism is concerned, the
magistrate obviously considered that Mitchell’s demeanour left much to
be desired but there is no suggestion that he was being prompted by the
appellant or his legal representative and he was not in any way tripped
9
up in cross-examination. Despite hi s shortcomings, his evidence does
provide corroboration of the appellant’s version that he, the appellant,
had not dragged the complainant out of the vehicle by her hair and that
she was a willing party; and Mitchell was peculiarly well placed to give
this evidence as he was sitting immediately behind them in the
appellant’s motor vehicle before they had sexual intercourse, he saw
them leave and he went over to them whilst they were in the act.
[11] The magistrate gave essentia lly two reasons for convicting the
appellant. The one which requires so me detailed consideration appears
from the following passages in the judgment (which I have translated):
‘The court must weigh the totality of t he evidence. The court cannot adopt a
compartmentalized approach to each witness’s evidence. The court must, as I have
mentioned, have regard to the evidence as a whole, the complainant right through
the whole spectrum up to t he end of the evidence of t he defence witness. And if the
court [has regard to] that evi dence, the court must look at the probabilities in this
case that a woman, who was quite willi ng to go and have further intercourse, would
suddenly say, well now, I was raped… The cour t must ask itself, is this conduct of
the complainant consistent with the pro babilities in this case. The court has
considered the evidence, and weighed it. There is absolutely no reason why this
woman, shortly after she had had consens ual sexual intercourse, would suddenly
complain or would shout that she had been raped.’
10
This approach by the magistrate constitutes a fundamental misdirection
as to the purpose for which the evi dence of a complaint in a case of
sexual misconduct such as the present may be received.
[12] It is often said that the fact that a complainant in a sexual
misconduct case made a complaint s oon after the alleged offence, and
the terms of that complaint, are ad missible for two purposes, namely, to
show the consistency of the comp lainant’s evidence, and to negative
consent: See eg R v M 1959 1 SA 352 (A) 355G-H.
[13] In the seminal English case of R v Lillyman [1896] 2 QB 167
Hawkins J, giving the judgment of the court (the other members being
Lord Russell of Killowen CJ, Pollock B, Cave and Willis JJ) said at 170:
‘It is necessary, in the first place, to have a clear understanding as to the principles
upon which evidence of such a complaint, no t on oath, nor made in the presence of
the prisoner, nor forming part of the res gestae, can be admitted. It is clearly not
admissible as evidence of the facts compla ined of: those facts must therefore be
established, if at all, upon oath by the prosecutrix or other credible witness, and,
strictly speaking, evidence of them ought to be given before evidence of the
complaint is admitted. The complaint ca n only be used as evidence of the
consistency of the conduct of the prosecutrix with the story told by her in the witness-
box, and as being inconsistent with her consent to that of which she complains.’
11
The learned judge continued at 177:
‘The evidence is admissible only upon the ground that it was a complaint of that
which is charged against the prisoner, and can be legitimately used only for the
purpose of enabling the jury to judge for themselves whether the conduct of the
woman was consistent with her testimony on oath given in the witness-box
negativing her consent, and affirming that t he acts complained of were against her
will, and in accordance with the conduct they would expect in a truthful woman under
the circumstances detailed by her.’
[14] Lillyman was followed in R v Osborne [1905] 1 KB 551 where
Ridley J, delivering the judgment of the court (the other members being
Lord Alverstone CJ, Kennedy, Chann ell and Phillimore JJ) said at 557-
558:
‘By the judgment in Reg. v. Lillyman it was decided that the complaint was
admissible, not as evidence of the facts complained of, nor as being a part of the res
gestae (which it was not), but as evidence of the consistency of the conduct of the
prosecutrix with the story told by her in the witness-box, and as being inconsistent
with her consent to that of which she co mplains. Mr Marchant argued upon this that
the reasons so given were one only, and that the consistency of the complaint with
the story given by the prosecutrix was mate rial only so far as the latter alleged non-
consent. If, however, that argument were sound, the words in question might have
been omitted from the sentenc e, and it would have been sufficient to say that the
complaint was admissible only and solely because it negatived consent. We think,
12
however, if it were a question of the meaning of words, that the better construction of
the judgment is that while t he Court dealt with the charge in question as involving in
fact, though not in law, the ques tion of consent on the part of the prosecutrix, yet the
reasons given for admitting the complaint were two ─first, that it was consistent with
her story in the witness-box; an d, secondly, that it was inconsistent with consent…
[I]t appears to us that, in accordance with pr inciple, such complaints are admissible,
not merely as negativing consent, but because they are consistent with the story of
the prosecutrix.’
[15] In Kilby v R [1973] 1 ALR 283 (High Court of Australia) Barwick CJ
(in whose judgment McTiernan, Steven and Mason JJ concurred) said at
287 lines 27-46:
‘[E]vidence of a complaint at the earliest reasonable opportunity is exceptionally
admitted only as evidence of consisten cy in the account given by the woman
claiming to have been raped: that is to say, it is admitted as matter going to her
credit (see R v Lillyman [1896] 2 QB 167, per Hawkins J at 170; [1895-9] All ER Rep
586; Sparks v R [1964] AC 964, at 979; [1964] 1 All ER 727). Because the account
with which the complaint is said to show consistency is an account of intercourse
without consent, it has often been said that the evidence of the complaint is evidence
negating consent. In my opinion, this manner of expressing the function of the
evidence of proximate complaint is not co rrect: though, as it shows consistency in
her account of rape, the fact of the complaint buttresses her evidence of no consent
or, as it was said in R v Lillyman, supra, is inconsistent with consent. At times also it
13
is said with technical inaccuracy that the evidence of such a complaint is
corroborative of the woman’s evidence of the rape. It is quite clearly not so
corroborative (see R v Christie [1914] AC 545; Eade v R (1924) 34 CLR 154; 30 ALR
257), though it is so spoken of in American literature (see Wigmore on Evidence, 3rd
ed, vol IV, p 219, para 1134 and p 227, para 1137; vol VI, p 173, para 1761).’
The learned Chief Justice then embarked on a careful analysis of
Lillyman, Osborne and several English textbooks, in the course of which
he said the following (289 lines 35-4 9; 290 lines 12-29; and 292 lines 1-
8):
‘In my opinion, nothing in this judgment [ie Lillyman] lends any support to the
proposition that evidence of the making of the complaint is evidence of any fact other
than the fact of the making of the complaint itself and of the terms in which it is
claimed to have been made. When Hawkins J in the first of the two passages which I
have quoted from Lillyman’s Case [that at 170 quoted in para [13] above] spoke of
the evidence of a complain t as being inconsistent with consent he was not, in my
opinion, intending to place its admissibility upon a sec ond and different ground from
that of its tendency to show consistency in the conduct of the prosecutrix. He was
merely indicating the extent of its effect on the credit of the prosecutrix.
In my opinion, the error which has been made by text writers and in
subsequent decisions is in treating this rema rk of Hawkins J as if it did set up a
second and independent ground of admissibility. In my respectful opinion, it did not.
…
In any case, to say that Lillyman’s Case recognizes that the evidence of a proximate
14
complaint may be used to negative consent is to make an ambiguous statement. If it
means that in so far as a complaint tends to buttress the evidence of the prosecutrix
that what occurred did occur without her consent and in so far as belief in truth of her
statement would negative consent, it may be an acceptable statement, though, I
think, prone to be, as it has proved to be, misleading. If, of course, it means that the
evidence of a complaint is direct evidenc e negativing consent, I am of opinion that
the statement is completely unwarranted, both in point of precedent so far as
Lillyman’s Case is concerned and in po int of logic. It is true that Ridley J in R v
Osborne [1905] 1 KB 551; [1904-7] All ER Rep 54, treated the evidence of proximate
complaint as admissible on two grounds, founding himself on Lillyman’s Case. He
did not intend to depart from the decision or to enlarge its reasoning. But as I have
indicated, Lillyman’s Case does not really warrant the c onclusion that there are two
distinct grounds of admissibility of evidence of proximate complaint. Always the basic
authority for the contrary proposition in the texts and in the decisions has been
Lillyman’s Case.
…
The admission of a recent complaint in cases of sexual offences is exceptional in the
law of evidence. Whatever t he historical reason for an exce ption, the admissibility of
that evidence in modern times can only be placed, in my opinion, upon the
consistency of statement or conduct which it tends to show, the evidence having
itself no probative value as to any fact in contest but, merely and exceptionally
constituting a buttress to the credit of the woman who has given evidence of having
been subject to the sexual offence.’
15
[16] The authors of one of the leading English textbooks, Cross and
Tapper on Evidence (eighth ed.), support the conclusion reached in Kilby
and say at 300:
‘Both in Lillyman and in Osborne reference was made to the complaint being used to
show consistency with the victim’s testimony, and being inconsistent with consent. In
Kilby v R , it is submitted rightly, the High C ourt of Australia emphasised that this
could not be taken to mean that it amount ed to evidence of the absence of consent,
nor its absence to evidence of consent. That would be to make the very hearsay use
of the complaint warned agai nst by Hawkins J, in Lillyman. The correct view is that
the victim’s testimony is evidence of lack of consent, and the complaint does no
more than support the credibility of the victim in so testifying.’
I respectfully agree. The remarks made by this court in M’s case to
which I referred in para [12] above are not a bar to the conclusion I have
reached in as much as t hat case was concerned wi th the consistency of
the complaint and not with whether a complaint can negative consent, as
Schreiner ACJ made clear at 355G-H ; and the question whether the
latter purpose is separate from and independent of the former, did not
arise for decision.
[17] I return to the re asoning of the magistrate in the present matter set
out in para [11] above. It would ha ve been correct for the magistrate to
16
have had regard to the fact of the complaint and its terms as establishing
consistency in the complainant’s evidence and therefore supporting her
credibility. But that is not what the magistrate did in the passages
quoted. The magistrate, in weighing up the totality of the evidence, had
regard to the complaint and its terms as constituting a probability in
favour of the State case which tended to disprove consent, which was an
issue ─ indeed, the only issue ─ in the case. That is not permissible.
[18] The magistrate’s second reason for convicting the appellant may
be dealt with comparatively briefly . The magistrate reasoned as follows:
Both of the fishermen Steyn and Englis h said that the complainant’s hair
was ‘wild’; the complainant said th at she had been pulled by her hair
from the vehicle to the place w here she was raped; her version was the
only explanation before the court for the condition of her hair; and the
appellant’s evidence that he did not notice her hair was an attempt by
him to conceal the truth from the court. I find this reasoning entirely
unconvincing. A woman who has been drinking steadily since noon, who
is inebriated and had just had sexual intercourse on the beach, is likely
to look more than a little unkemp t. There was furthermore no particular
reason for the appellant ─ as opposed to the fishermen, who were
suddenly confronted by the complainant ─ to have particular regard to
17
the complainant’s hair at any stage, and his denial t hat he had done so
is accordingly an unsafe basis for a credibility finding against him. This is
particularly so in view of the specific denial by the defence witness
Mitchell that the appellant had dragged the complainant by her hair.
[19] The magistrate also found c orroboration for the complainant’s
version in the evidence of the district surgeon that her leg had been
gashed whilst she was be ing dragged from the c ar to the place where
the appellant had sexual intercours e with her. That finding ignored the
evidence of the district surgeon in cr oss-examination that this injury was
equally consistent with the appellant’s version that the complainant had
stumbled and fallen ear lier. Bearing in mind t he inebriated state of the
complainant, the appellant’s version is not improbab le. The injury to the
complainant’s leg provides no corr oboration of her version and the
magistrate’s finding to the contrary was a misdirection.
[20] The magistrate did not emphas ize the emotional state of the
complainant, coupled with the facts t hat she wanted to climb into their
vehicle and was not willing to leave wi th the appellant, as testified to by
Steyn and English, or the evidence of Inspector McNabb that she was
considerably upset. Such evidence (unlike evidence of a complaint and
18
its terms) is admissible to prove absence of consent, as is clearly
established by two decisions of this court. In S v S 1990 (1) SACR 5 (A)
this court held at 11a-c and 12a-c:
‘Na die gebeure op die plaas het die appe llant die klaagster teruggeneem na haar
koshuis. Daar het sy vir ‘n wyle voor die deur bly staan, en toe na ‘n vriendin, Louise
Nel, in ‘n ander koshuis gegaan en aan haar vertel dat sy verkrag is. Louise Nel het
‘n besondere grafiese beskrywing van heirdie besoek gegee. Sy sê dat die klaagster
by haar kamer ingebars het sonder om te klop, en dat sy in ‘n erge geskokte
toestand voorgekom het ─ asof sy die dood self aansk ou het. Die klaagster het nie
die appellant se naam aan Louise Nel g enoem nie daar sy gesê het dat die man
verloof was, en sy nie sy verloofde in die ve rleentheid wou stel nie. Sy het egter vir
haar vertel hoedat sy deur dié man na die pl aas genooi is om na “tapes” te gaan
luister, en hoe hy haar daar verkrag het. Hier die getuienis waarin die uiters geskokte
toestand waarin die klaagster verkeer het steeds beklemtoon word, is nie wesenlik in
kruisverhoor aangeval nie, en dit is ook nie voor ons betoo g dat die landdros
verkeerd was om dit te aanvaar nie. Dit bied ongetwyfeld sterk stawing vir die
klaagster se getuienis dat sy verkrag is.
…
Hierbenewens word sy [the complainant] gest aaf deur die getuienis van Louise Nel,
en, tot ‘n mindere mate, deur die getui enis van haar geneesheer en van die
verteenwoordiger van “Rape Crisis” met wie sy gesels het. Die uiters geskokte
toestand waarin Louise Nel haar gevind he t kort nadat die appellant haar by haar
koshuis afgelaai het, is sekerlik nie op di e getuienis van die appellant verklaarbaar
19
nie. Dit strook volkome met die getuienis van die klaagster dat sy verkrag was, en dit
blyk trouens dat dit op geen ander redelike veronderstelling verklaarbaar is nie.’
In S v Jackson 1998 (1) SACR 470 (SCA) this court held at 477g-h:
‘Furthermore, on both versions the complain ant fled from the car, leaving her
plimsoles there. This is incompatible wit h the accused’s version of consensual and
non-violent love-making. When the complai nant reached her sister and friends, she
was hysterical and immediately compla ined of having been raped. The district-
surgeon also reported that w hen he examined her, she was in a state of shock. This
is incompatible with the accused’s version.’
It must be emphasized that in neither case did this court say that the fact
or contents of the comp laint corroborated the comp lainant’s evidence or
created a probability in favour of its a cceptance. In each case the court
had regarded the complainant’s emot ional state and her conduct as
creating that probability. The references to the complaint in the passages
quoted from the S case were part of the n arrative of the sequence of
events. The reference to the complaint in Jackson must be interpreted
as showing consistency on the part of the complainant and no more.
[21] Caution must be exercised when the emotional state of a
complainant is taken into account. The English cases on this point are
collected and discussed in Ramesh Chauhan (1981) 73 CAR 232. In one
of those cases, Redpath (1962) 46 CAR 319 at 321-2 Lord Parker CJ
20
said:
‘It seems to this court that the distressed condition of a complainant is quite clearly
capable of amounting to corroboration. Of course, the circumstances will vary
enormously, and in some circumstances quite clearly no weight, or little weight,
could be attached to such evidence as co rroboration. Thus, if a girl goes in a
distressed condition to her mother and makes a complaint, while the mother’s
evidence as to the girl’s condition ma y in law be capable of amounting to
corroboration, quite clearly the jury should be told that they should attach little, if any,
weight to that evidence because it is a ll part and parcel of the complaint. The girl
making the complaint might we ll put on an act and simula te distress. But in the
present case the circumstances are entirely different.’
The circumstances in Redpath were that the distressed condition of the
little girl who had been the subject of the assault was observed by
someone whom the little girl did not know to be there.
[22] I should perhaps say for the sake of completeness that evidence of
the distressed state of t he complainant is also admissible to show that
sexual contact took place, where this is denied. The facts in Ramesh
Chauhan provide a good example. In that matter the appellant
accompanied his sister to premises where she had applied for
employment, and while she was being interviewed he wa ited in another
room where a female employee was working alone. They entered into
21
conversation, whereupon it was alleged by the victim that the appellant
touched her breast and tried to kiss her. She extricated herself and ran
upstairs to the ladies’ lavatory crying. A fellow employee heard her cries
and followed her. The victim explain ed to her fellow employee what had
happened. The police later interviewed the appellant who admitted being
alone with the victim but denied that any incident had taken place in
which he had touched her. He main tained that when she left the room
she had been behaving normally. The appellant was charged with
indecent assault. At the end of th e prosecution case counsel for the
appellant submitted that there was insufficient corroboration for the issue
to be left to the jury . The recorder ruled that the jury were entitled to
regard the victim’s distressed condition described by the fellow
employee as corroboration if they thought it right to do so. The appellant
was convicted. The Court of Criminal Appeal held that the evidence had
sufficient weight to be left with t he jury, who were ca refully and properly
directed on the need for corroboration and the possibility of regarding the
evidence of distress as corroboration. The appeal was dismissed.
[23] In the present matter, the evidence as to the complainant’s
emotional state is of little ─ if any ─ assistance, in as much as it may
have been due to other factors. Her fri ends knew that she had left the
22
beach with complete strangers at ab out 4 pm. It had became late. She
was intoxicated. She would have h ad some explaining to do to her
‘parents-in-law’ as to why she had failed to collect her children during the
afternoon so that they could atte nd school the following day. And her
fiancé, whom she said she would ha ve seen that night, would no doubt
have asked questions as to her whereabouts ─ particularly if he had
seen her in the condition testified to by the two fishermen, Steyn and
English. Or she may have been over come by remorse, perhaps induced
by the quantity of alcoho l she had consumed. All of these possibilities
have a factual foundation in the evidence led, as required by Jackson at
477c-d.
[24] On the face of it, the complainant’s conduct would, on the
appellant’s version, appear improbabl e (and this is what led the
magistrate and the court below into error): One moment she was happy
to have sexual intercourse and even to continue their involvement at her
home; the next moment she was upset and looking to the fishermen for
assistance. Such a change in atti tude would indeed be improbable in a
person who was behaving rationally. But the complainant was not. She
left the beach with the appellant because he was going to take her home
so that she could fetch her children. Yet when there had already been a
23
detour to Crossroads, s he was quite happy to continue the party: She
did not walk home from Westridge, as she admitted in cross-examination
she could have. She further admitted t hat at Crossroads she called for a
pair of pliers to cut off her engagement ring, because, according to her, it
was pinching her. And according to the appellant, whilst they were at
Westridge, the complainant climbed out of the vehicle and urinated on
the ground in front of a queue of m en who were waiting to be served at
the shebeen. The complainant denied this conduct but, when asked in
cross-examination why she had not mentioned the detour to Westridge
in her evidence-in-chief, sh e said that she had fo rgotten about it. Her
evidence on this point was unsatisfact ory. In all the circumstances it
would be unsafe to find that the change in the complainant’s attitude
which must have taken place on the appellant’s version, renders that
version improbable ─ much less false beyond a reasonable doubt.
[25] To sum up: The complainant did make a report to the fishermen
that she had been raped, as one would have expected her to do. That is
a factor which supports the consistency of h er evidence and therefore
supports her credibility. She was also upset and unkempt shortly after
the incident, when the fishermen arrived. She was still upset when the
police arrived. As against these facts, she was drunk and had behaved
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irrationally earlier that afternoon, and several reasons appearing from
the evidence suggest themselves as to why she may have been in the
emotional condition she was and why she may have behaved as she
did. She was furthermore a single witness. Aspects of her evidence were
unsatisfactory and she lied as to the state of her sobriety. A cautionary
approach to her evidence was required for that very reason: Jackson at
476f and 476i-477a. By way of c ontrast, the appellant’s evidence was
beyond reproach. There is f urthermore no gainsayi ng the fact that his
version was corroborated by Mitchell, even if one approaches the latter’s
evidence with reservations (beca use he was a good friend of the
appellant) and with caution (be cause of his demeanour). The
magistrate’s two reasons for convicting the appellant, namely, the state
of her hair and the probability constitu ted by the complaint she made to
the fishermen, cannot be sustai ned. In all the circumstances, it cannot
be said that the appellant’s guilt was proved beyond reasonable doubt.
[26] The appeal succeeds . The order of the court a quo is set aside
and the following order substituted:
‘The appellant’s conviction and the sentence imposed are set aside.’
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T D CLOETE
JUDGE OF APPEAL
Concur: Brand JA
Comrie AJA