IN  THE  SUPREME  COURT  OF  APPEAL
OF  SOUTH  AFRICA

Case  No 397/01

Reportable

JOHANNES MYENI

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 Mbatha) 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 Zanele.  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 Zanele.  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 28th April 1979.
2.
I know the Complainant Lungile Myeni and his father Johannes Myeni since 1993.

3.
In June 1993 when the schools were closed for winter holidays I saw Lungile
Myeni at Mondlo Township and I started to proposed her and we fell in love the
same month.

4.
At that stage Lungile Myeni 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.

5.
In 1993 I had sexual intercourse with Lungile Myeni once in 1993.  She came to
my home during the absence of my grandmother and my sister who were staying
with me.

6.
I continued to have sexual intercourse with Lungile Myeni at my home in 1994,
1995, 1996 until she was taken away by her mother to Johannesburg in 1996.

7.
I cannot say how many occasions I had sexual intercourse with Lungile Myeni in
1994, 1995, 1996 but it was at intervals of about three months.

8.
I  was contacted by Mandla Mtambo who is a student at Gudu High School that  the
Attorneys for Johannes Myeni 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 v
Van 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
case 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.)

(2)      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.)
(3)      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;
(d)
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;

(g)
the right of the complainant and of every individual to personal
security and to the full protection and benefit of the law;
(h)
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:
1. The arrest, detention and interrogation of Ngema by the
investigating officer and the coercion on him to change his
statement.
2. The admission by the trial court of the statement obtained by the
investigating officer from the defence witness as a result of threats.
3. 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.

4. 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 (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