S v E

• Jurisdiction: South Africa
• Judge: van Blerk JA, Holmes JA and Williamson JA
• Judgment Date: 16 September 1965
• Citation: 1965 (4) SA 526 (A)
• Hearing Date: 23 August 1965
• Court: Appellate Division

S v E
1965 (4) SA 526 (A)

1965 (4) SA p526

Citation	1965 (4) SA 526 (A)
Court	Appellate Division
Judge	van Blerk JA, Holmes JA and Williamson JA
Heard	August 23, 1965
Judgment	September 16, 1965

Flynote : Sleutelwoorde A

Criminal procedure — Appeal — Leave granted — Order granted in general terms — Application to hear further evidence — Counsel allowed to argue appeal on record as it stood — Re-opening B for further evidence — Semble: that trial Court should be vested with such power.

Headnote : Kopnota

Where the frame of the order made by a Judge in a criminal case granting leave to appeal to the Appellate Division might have caused counsel to think erroneously that leave to appeal on the record, as it stood, had C been granted and not merely on the ground that the taking of further evidence might be ordered, the Appellate Division allowed counsel to argue the appeal on the record as it stood, dismissing both the appeal and the application for the taking of evidence.

Semble: That the desirability should be considered of granting a trial Judge the power to re-open proceedings and hear further evidence. D

Case Information

Appeal from a conviction in the Natal Provincial Division (HARCOURT, J., and assessors). Facts not material to this report have been omitted.

A. J. du P. Buys, for the appellant: The Court a quo erred in accepting E complainant's evidence in view of the discrepancies and contradictions therein. The trial Court erred in convicting appellant on the sole evidence of complainant in a rape case where there was no corroboration of her evidence or, alternatively, where there was very limited corroboration. It is competent for the Court to convict on the uncorroborated evidence of a complainant in a sexual case, but then the F merits of the complainant and the demerits of appellant must be beyond question; see R v Ncanana, 1948 (4) SA 405; R v W., 1949 (3) SA 772. The Court must further be satisfied that the complainant spoke the truth and that the accused lied; see R v Malan, 1947 (1) P.H. H.38; R v Segoale, 1947 (2) SA 641. As there was no evidence other than G complainant's own evidence as to how she emerged from the train, the fact that she did emerge from the train and got hurt in the process is no corroboration in respect of the alleged rape. Corroboration must proceed from a source independent of, and extraneous to the person whose evidence is to be corroborated; see Hoffmann, South African Law of Evidence, pp. 120 - 1; May, South African Cases and Statutes on H Evidence, 3rd ed., para. 93; Gardiner & Lansdown, South African Criminal Law and Procedure, 6th ed., p. 650; R v Papla, 1946 NPD 310; Scoble, Law of Evidence, 3rd ed. pp. 228 - 9 and 235 - 41. The trial Court erred in rejecting appellant's evidence. The Court erred in not giving sufficient attention to the importance of the time factor in the case. The trial Court erred in holding that complainant had no pre-knowledge of the medical evidence. The trial Court erred in failing to give proper attention to the report the complainant made to Constable Arranajellum. Should this Court find that appellant

1965 (4) SA p527

failed in his appeal on the merits, appellant makes application for leave to re-open the trial to enable him to adduce further evidence. This Court can hear an application of this nature at the same time as the appeal; see R v Madikane, 1960 (4) SA 776. The requirements to A be observed before this Court may remit a case to the Court of first instance are set out in R v Weimers and Others, 1960 (3) SA 508; see also S v Nkala, 1964 (1) SA 493; R v Foley, 1926 T.P.D. 168; R v Madikane, ibid; R v Zackey, 1945 AD at p. 516; R v de Beer, 1949 (3) SA 740; R v van Heerden and Another, 1956 (1) SA 366; R. v. B Siwesa, 1957 (2) SA 223; R v Carr, 1949 (2) SA 693. The appellant has satisfied those requirements.

B. G. van der Walt, S.C., Attorney-General for Natal, for the State: Insufficient grounds have been advanced for the grant of the application for the re-opening of the case for the purpose of leading further C evidence; see R v de Jager, 1965 (2) SA 612; R v Weimers and Others, 1960 (3) SA at p. 514; S v W., 1948 (3) SA at p. 524.

Buys, in reply.

Cur adv vult.

Postea (September 16th).

Judgment

D Van Blerk, J.A.:

In the Natal Provincial Division HARCOURT, J., sitting with assessors, found the appellant guilty of rape and assault with intent to commit grievous bodily harm. He was sentenced to six years' imprisonment and four strokes. It was found proved that on 20th July, E 1964, the appellant, who was at the time employed as a guard on the train which was travelling from Stanger towards Durban, had raped a Bantu woman, Mtetwa, who was travelling as a passenger in the guard's van. This offence, so it was found, was committed in the van while the train was in motion. The appellant and the complainant were alone F together in the guard's compartment, and, on having completed the act, the appellant pushed the complainant out of the train while it was proceeding at...