THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case no: 144/08

In the matter between:

GERHARD SMIT

Appellant

and

THE STATE

Respondent

Neutral citation:  G Smit v The State (144/08) [2010] ZASCA 84 (31 May
2010)

Coram:
MTHIYANE, VAN HEERDEN, PONNAN, MHLANTLA and
LEACH JJA

Heard:
19 May 2010

Delivered:
31 May 2010

Summary:
Criminal law – rape and attempted rape - evidence –
assessment of – complainant’s evidence lacking credibility - convictions of
rape and attempted rape set aside.

______________________________________________________________

ORDER
______________________________________________________________

On appeal from:  North Gauteng High Court (Pretoria) (Seriti J and
Ramagaga AJ sitting as court of appeal):

1.
Leave to appeal is granted and the appeal is enrolled.
2.
The appeal is upheld, and the order of the high court is set aside and
substituted with the following:

‘(a)
The appeal is upheld.

(b)
The appellant’s convictions and sentences are set aside.’

______________________________________________________________

JUDGMENT
______________________________________________________________

LEACH (MTHIYANE, VAN HEERDEN, PONNAN and MHLANTLA concurring)

[1] On 24 February 2005, Gerhard Smit of Pretoria ( ‘the appellant’), was
convicted in a regional court on a count of attempted rape and a further count
of rape for which he was, respectively, sentenced to three years’ and ten
years’ imprisonment, such sentences to run concurrently.  A subsequent
application on his behalf to lead further evidence as well as an application for
leave to appeal was refused by the trial magistrate. Subsequently, the
appellant was granted leave to appeal by the North Gauteng High Court but
on 6 August 2007 that court (Seriti J and Ramagaga AJ) dismissed the
appeal. A delay then ensued, largely as a result of various financial and
logistical difficulties that are not necessary to detail on the part the appellant in
lodging his application with the High Court, for leave to appeal to this court.
On 12 February 2009 the High Court dismissed that application. The appellant
then applied to this court for leave to appeal and to adduce further evidence in
terms of s 309 of the Criminal Procedure Act 51 of 1977. On 25 February
2009 this court issued the following order:

‘The application for leave to appeal and to adduce further evidence is referred for oral
evidence in terms of s 21(3)(c)(ii) of the Supreme Court Act 59 of 1959.
The parties must be prepared if called upon to do so, to address the court on the
merits of the conviction and sentence.’

[2] Because the success or otherwise of the application for leave to appeal
depends on the prospects of eventual success of the appeal itself, the
argument on the application had to address the merits of the appeal. For this
reason the parties were requested to argue the appeal as if the application for
leave to appeal had been granted. (See S v Boesak 2000 (1) SACR 633
(SCA) paras 10, 11 and 12.)

[3] The charges against the appellant arose out of events which occurred
at his home in Pretoria during the night of 3 to 4 September 2003. Both the
charge of attempted rape (count 1) and that of rape (count 2) involved the
same complainant, a 16 year old school girl, who was at the time living with
the appellant’s family. The appellant used an outside room described in the
evidence as  a ‘Wendy house’ as his bedroom while the complainant shared a
bedroom in the main house with the appellant’s sister, Jolindi, and his 11 year
old brother. His mother and her partner slept in an adjoining bedroom. The
State alleged that the appellant had unsuccessfully attempted to rape the
complainant in the Wendy house and, some time later, had succeeded in
doing so in the bedroom that she shared with his two siblings.

[4] The appellant denied his guilt. Although he admitted having had
intimate contact with the complainant in the Wendy house and that he had
thereafter had sexual intercourse with her in the bedroom, he alleged that this
had all taken place with her consent. Unfortunately for him, his version was
rejected and he was convicted on both counts as charged. As there is a
material conflict of fact, a resolution of which involves the credibility of the
witnesses, it is necessary to deal with the evidence in some detail.

[5] At the time of the incident, the complainant was attending a school in
Pretoria. As her home was in Witbank it had been necessary for her to board

at the school but, for reasons not disclosed in the evidence, there had been a
problem at the school and she was required by the school to leave the
boarding house. Her teacher, a Mr Bruwer, had a son who was at the time
romantically involved with the appellant’s sister, Jolindi, and this led to
arrangements being made for the complainant to board with Jolindi.

[6] On the night in question, although the complainant had already
prepared for bed, at Jolindi’s suggestion she slipped a track suit over her night
clothes and the two of them went out at about 9 pm to purchase cold drinks.
They ended up at the Bergsig Hotel where the appellant was playing pool with
his friends. Although the complainant had lived with Jolindi’s family for a few
weeks, she claimed not to know the appellant who was much older than her. It
is common cause that despite it having been a school night, the complainant
and Jolindi spent several hours playing pool with the appellant and his friends
and only left the hotel in the early hours of the next morning. They proceeded
home in a motor vehicle driven by Jolindi with the complainant and the
appellant seated in the rear and one of his friends seated in the front
passenger seat. After dropping the friend at his home, they went home.

[7] According to the complainant, when they arrived at the house the
appellant said he wanted to talk to her and asked her to accompany him to
the Wendy house. She did so, but when they entered the room the appellant
closed the door, turned off the light and asked her to remove her clothes.
When she refused to do so, he pushed her onto the bed and again asked her
to undress. She told him that she was not prepared to do so as she had a
boyfriend and he had a pregnant girlfriend. When she again refused, the
appellant proceeded to strip down to his underpants, and again asked her to
disrobe. When she persisted in her refusal, he pulled a blanket over them,
fondled her breasts and put his hand between her legs. However when he sat
up, apparently in order to play some music, she was able to free herself and
flee to the main house. As she did so, she looked back and saw the appellant,
now fully clothed, following close behind her. Once in the main house, the
appellant went to the sitting room to watch television while she went to the
bedroom she shared with Jolindi and the latter’s 11 year old brother. She

alleged that when she told Jolindi what had happened, she was
unsympathetic and told her it had all been her own fault.

[8]    The complainant alleged that she had then removed her track suit and
climbed onto her bed, but that she found it impossible to sleep. She was
awake and lying on her stomach when she felt someone climbing onto the
bed, who pulled the panty she was wearing to below her buttocks and then
had sexual intercourse with her by penetrating her vagina from behind. She
alleged that after penetration had occurred she looked around and saw that it
was the appellant. She asked him what he thought he was doing. He
immediately climbed off her and left the room. She alleged that the next day
she had informed her teacher, Mr Bruwer, what had happened to her.

[9] The appellant told a materially different story. Although he confirmed
that the complainant and Jolindi had joined him and his friends in playing pool
at the hotel, he alleged that she had flirted outrageously with both his friends
and him. She had repeatedly squeezed his behind, had sat on his lap and had
kissed him.  He alleged that while he and the complainant were seated in the
rear of the vehicle on the way home, they engaged in heavy petting during
which he fondled her breasts and she fondled his private parts. On their
arrival home, he suggested to her that they go to the Wendy house, to which
she willingly agreed. Once in his room, the complainant removed her track
suit and lay on the bed dressed in her night clothes. He took off his pants and
shirt and joined her. They petted intimately, during the course of which they
fondled each others private parts. But when he attempted to remove her
panty, she said that they should rather go into the house. They dressed
together and when he asked whether he should bring a condom with him, she
replied that it was unnecessary as she was using an oral contraceptive.

[10]    The appellant described how he and the complainant had then gone to
the main house where he sat in the sitting room while the complainant, after
having said that she would call him when Jolindi was asleep, went to her
bedroom. She returned shortly thereafter, bringing him a duvet. She sat on his
lap and they kissed. The complainant said that he should wait a few minutes

before joining her in bed. She returned to the bedroom and, after a short
while, he joined her as she had said. They petted intimately for a while before
he removed the complainant’s panty and they had consensual sexual
intercourse, during which he penetrated her vagina from behind. The act was
brief, and the two of them then repaired to the bathroom together to clean
themselves. After the complainant had kissed him again, she returned to the
bedroom while he went and slept in the sitting room, something he commonly
did. He did not see the complainant the next morning before she went to
school and was shocked to later hear that she alleged that he had raped her.

[11]    Before dealing with whether the appellant’s version was correctly
rejected as not being reasonably possibly true, I should interpose that there
can be no doubt that the State’s case fell far short of proving an attempted
rape in the Wendy house. The high court never dealt with this issue and
appears to have confirmed the conviction on the count of attempted rape
solely because it was not persuaded that the trial court had erred in accepting
the complainant’s version. However, while on the complainant’s version the
appellant had intimately fondled her, he at no stage attempted to have sexual
intercourse with her and, indeed, at all times she had her panty on and the
appellant had never removed his underwear. At best for the State, the
appellant may have been guilty of indecent assault but he certainly did not
attempt to insert his penis into the complainant’s vagina.  That being so, even
on the State’s case considered in isolation, the appellant’s actions in the
Wendy house cannot be construed as an attempt at rape and in this court
counsel for the State correctly conceded that the conviction on this count
cannot stand.

[12]    But the more important issue is whether both the trial court and the
high court erred in accepting the version of the complainant as true beyond a
reasonable doubt and rejecting that of the appellant as being inherently
improbable.   The rejection of the appellant’s version as inherently improbable
was based primarily on two issues. First, that if the complainant had wanted to
have sexual intercourse with the appellant, she would have done so when
they had the opportunity of doing so in private in the Wendy house (and it was

thus inherently improbable that she would have suggested to the appellant
that they should go to the main house for that purpose) and, second, that the
complainant would have suggested having sexual intercourse in a bedroom
which she shared with two other people.

[13]     The allegation that the appellant and the complainant did not avail
themselves of the opportunity to have sex in the Wendy house and only did so
later in the bedroom is not so improbable that it can be rejected as false
beyond a reasonable doubt. The fact that the sex act took place in the
bedroom without the complainant crying out for assistance is far more likely to
have occurred if the act was with her consent than without it. And the
appellant was hardly likely to have run the risk of attempting to rape the
complainant in the same room as his sister and younger brother after she had
successfully fought off his initial attempt to do so in the Wendy house as to do
so would have invited discovery in a compromising position should the
complainant have again resisted his advances.  Plainly, if the appellant
intended to have forcible intercourse with the complainant in a house with four
other occupants, without knowing how she would react, he ran the risk of her
raising the alarm and him being found out. It would have been far less risky, if
he was intent on such conduct to have done so in the Wendy house, where
the opportunity clearly presented itself. If anything, the fact that the sexual act
took place where it did is more consistent with the appellant’s version than
that of the complainant, and the appellant’s version is not so inherently
improbable in that regard to warrant rejection. Or rather at best for the State it
is a neutral factor that does not tip the scales in its favour.

[14]    The fundamental difficulty that I have with the State’s case is that it
rested solely upon the credibility of the complainant herself. The trial court did
not evaluate her evidence in detail while the high court concluded that it was
‘satisfactory in every material respect and is also credible’. This is a startling
statement as a detailed examination shows the complainant to have been
anything but a credible witness whose testimony was inherently unreliable
and as appears from what follows, her evidence is riddled with inconsistencies
and improbabilities.

[15]    In her evidence in chief, the complainant made no mention of any
improper advances made by the appellant until such time as the two of them
had entered the Wendy house. In cross-examination, however, a very
different version emerged. She then alleged that while at the hotel the
appellant had forced her to sit on his lap and that, while returning home, the
appellant had not only forced her to sit in the back of the vehicle with him but,
despite her protestations, had forced her hand onto his private parts. Had
these events occurred as she alleged in cross-examination, it was surprising
to say the least that she only volunteered this information at that stage. Her
failure to do so smacks heavily of an attempt to gild the lily.

[16]    It is also surprising that if the complainant had been obliged to
physically resist the appellant’s advances, both at the hotel and while seated
in the motor vehicle, she would have voluntarily accompanied him to the
Wendy house. Importantly, she also admitted having willingly kissed him in
the Wendy house.  This was hardly the conduct of a person who had just
been obliged to fight off a sexual predator, and the fact that she went with the
appellant to his room and kissed him there is far more consistent with the
appellant’s version that she had consented to the sexual contact which had
taken place between the two of them earlier that evening. Furthermore, the
complainant admitted during her evidence that she was taking an oral
contraceptive at the time, information that the appellant would hardly have
known unless she had imparted it to him as he said she had done. This
further corroborates the appellant’s version of the events. Why else, it must be
asked, would she have volunteered that information, unless there was a
discussion between them about sexual intercourse. It strikes me as
implausible that she would have imparted that information to him had she felt
threatened by him.

[17]    The complainant’s description of events after she had left the
appellant’s room is also unsatisfactory. She alleged that after she had freed
herself from the appellant, she fled from the Wendy house and, on looking
back, saw him fully clothed following directly behind her. However, it is

common cause that the appellant had stripped to his underpants and it is
difficult to see how on the complainant’s version he would have had the time
to dress and to follow so closely behind her. Not only is her version thus
improbable in this regard but the fact that the appellant was fully clothed at
that stage is consistent with his version that they had both dressed
themselves before they left the Wendy house together.

[18]    Then there is the appellant’s allegation that the complainant had
taken him a duvet while he was waiting in the sitting room for Jolindi to fall
asleep. The complainant denied doing so but Jolindi confirmed that she had.
Not only did Jolindi’s evidence contradict the complainant’s on this score but
she also confirmed that the complainant had flirted with the men present at
the hotel and had sat on the appellant’s lap. She also testified that after the
complainant had returned from the Wendy house she had said that she and
the appellant had just played with each other. Jolindi took the complainant to
school the next morning. It was undisputed that notwithstanding the
complainant then having the opportunity to do so, she had not complained
about the appellant’s behaviour. Indeed Jolindi testified that the complainant
had told her that she had enjoyed her evening playing with the appellant. It
was only later in the day, according to Jolindi, that she had heard that the
complainant had alleged that the appellant had raped her.

[19]    Jolindi’s evidence was thus inconsistent with that of the complainant in
several respects. She was not shaken in cross-examination and there is no
reason to doubt her truthfulness. However, the trial court did not mention her
testimony and while the high court briefly mentioned her evidence, it neither
evaluated nor considered its effect upon the credibility of the complainant. It
erred in doing so as Jolindi’s evidence, much of which was unchallenged,
throws considerable doubt upon the version of the complainant.

[20]    The complainant’s description of the sex act itself is also distinctly
unconvincing. As I have said, she alleged that the appellant had entered the
room, climbed on her bed, pulled down her panty to just below her buttocks
and then penetrated her vagina from behind, all of which took place without

her offering any resistance or even looking around to see who it was. Not only
is it improbable that he would have been able to achieve penetration if she
was lying in the position she described but, according to her, it was only after
penetration that she looked around and asked him what he was doing. If she
was awake, as she alleged was the case, it is difficult to accept that the
appellant could have done all of this without her consent. The trial court
appreciated this difficulty and found that the complainant must have been
asleep at the time and was thus not only unaware of the removal of her panty
and the appellant’s initial penetration of her, but that she had therefore been
incapable of giving her consent. But this finding flies in the face of the
complainant’s own evidence that she was awake at all times, and constitutes
a material misdirection.

[21]    Had the complainant been raped, one would have expected her to
have immediately cried out for assistance, particularly knowing that Jolindi
was present in the room. She did not do so. Nor after the act did she wake
Jolindi. When pressed on this, the complainant alleged that she had
attempted to awaken her but that Jolindi had been so drunk that she
continued sleeping. Jolindi denied having been drunk and said that she had
merely had a single brandy and coke during the course of the whole evening,
and her evidence in this regard was not challenged. The complainant’s
evidence in regard to what she told Jolindi the next morning was also
unsatisfactory. Initially she said she did tell Jolindi of the rape, but went on to
say that she could not remember if she had done so. As I have said, Jolindi’s
evidence has not been shown to be unreliable and is wholly inconsistent with
the complainant doing anything else but expressing her pleasure at the events
of the preceding evening.

[22]    Moreover, the complainant said that she did not report the incident to
Jolindi’s mother as she did not know her well enough, and that she therefore
decided to wait until school to report the incident to her teacher, Mr Bruwer.
When Mr Bruwer testified, he made no mention of the complainant reporting
that she had been raped. Instead he stated that she had shown no signs of
being at all upset during the course of the morning classes which is hardly

what one would expect of a young girl who had been raped. However he did
state that the complainant had told him that she did not want to return to
Jolindi’s house and that, as a result, he arranged for the complainant’s mother
to come to school and met with her and the complainant that afternoon when
the complainant’s mother reported to him that the complainant had been
raped.

[23]    It is clear from this that the complainant did not complain immediately
after the incident to people that she could trust in circumstances where it
would have been that expected she would have done so.  The first person to
whom she appears to have reported that she was raped was her mother but
the circumstances under which that report was made are not clear. There is a
conflict on the evidence as to the precise events that occurred, but it is
apparent from her mother’s testimony that the first issue that arose was
whether the complainant had been at the hotel the previous evening. It was
only after the complainant’s mother, who was angry about her daughter
having possibly been at the hotel, made enquiries and learned from another
witness that the complainant had been at the hotel that the allegation of rape
was first mentioned.

[24]     Precisely how she had come to make the report was not explored in
the evidence, but the fact remains that the complainant’s allegation of rape
appears only to have emerged after a confrontation with her mother about her
having been at  a hotel on a school night.  In the circumstances that prevailed,
there is a very real suspicion that the complainant’s report of rape was made
in an attempt to deflect her mother’s anger.

[25]    In the light of all these factors, I have grave reservations about the
credibility of the complainant and in turn her reliability I am thus not persuaded
that the State discharged the onus of proving beyond a reasonable doubt that
the appellant’s version of the material events was false. Ultimately counsel for
the State was constrained to concede that this conviction as well could not
stand.

[26] In the light of this conclusion, it becomes unnecessary to deal with the
application for leave to lead further evidence.

[27]    The following order will therefore issue:
1.
Leave to appeal is granted and the appeal is enrolled.
2.
The appeal is upheld, and the order of the high court is set aside and
substituted with the following:

‘(a)
The appeal is upheld.
(b)
The appellant’s convictions and sentences are set aside.’

________________

L E LEACH

JUDGE OF APPEAL

APPEARANCES:

APPELLANT:
J Hollland-Müter

Instructed by

Potgieter, Penzhorn & Taute Inc, Pretoria

Kramer, Weihmann & Joubert, Bloemfontein

RESPONDENT:
L Pienaar

Instructed by

Director of Public Prosecutions, Pretoria

Director of Public Prosecutions, Bloemfontein

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal

Date:
31 May 2010

Status:
Immediate

Please note that the media summary is intended for the benefit of the media and
does not form part of the judgment of the Supreme Court of Appeal

GERHARD SMIT

versus

THE STATE

The appellant was convicted in a regional court of both the rape and the attempted
rape of a 16 year old girl, for which he was sentenced to an effective period of ten
years’ imprisonment.

The appellant appealed unsuccessfully to the North Gauteng High Court, but was
later granted leave by the Supreme Court of Appeal to argue an application for leave
to appeal.

The Supreme Court of Appeal today granted the appellant leave to appeal, enrolled
the appeal and set aside the appellant’s convictions and sentences. In doing so it
concluded that the complainant’s version of the event was improbable and
unsatisfactory, that there was grave doubt as to whether she had told the truth, and
that the appellant’s version could reasonably possibly be true. The appeal was
therefore upheld.