S v N

• Jurisdiction: South Africa
• Judge: Corbett JA, Viljoen JA and Nestadt JA
• Judgment Date: 29 September 1987
• Citation: 1988 (3) SA 450 (A)
• Hearing Date: 11 September 1987
• Court: Appellate Division

Corbett JA:

In May 1984 appellant in this matter was convicted of rape in the Natal regional court (sitting in Durban) and sentenced to five years' imprisonment. The conviction related to an incident which took place in the early hours of Saturday, 25 February 1984. The appellant B appealed to the Natal Provincial Division ('the NPD') against both his conviction and the sentence imposed. His appeal was heard on 21 March 1985. The Court dismissed the appeal. On 21 October 1985 appellant made application to the NPD (i) for leave to make application to the Appellate Division for the setting aside of appellant's conviction and sentence and the remittal of the case to the trial court for the hearing C of fresh evidence; (ii) for leave to appeal to the Appellate Division against conviction and sentence; and (iii) for condonation of the lateness of the application for leave to appeal (I refer in this regard to the amended order prayed by the appellant). The Court, following the procedure indicated in S v Turner 1975 (3) SA 285 (N), granted the application as prayed. It is in terms of this order that the matter now D comes before us.

At the hearing in this Court appellant's counsel conceded that on the evidence placed before the regional court there was no valid ground for interfering with the conviction. He, therefore, confined his argument to the question of remittal for the hearing of fresh evidence and the E question of sentence. I shall deal first with the remittal issue, but before doing so it is necessary to survey the evidence adduced before the regional magistrate and his reasons for convicting the appellant.

The complainant in the case is a Miss O, whose age at the time of the trial was 25 years. She then worked as a sales representative for a F photographic company. She had never been married, but had a son born out of wedlock, aged seven years. She lived in the Berea, in Durban. Her version of what happened, as given in evidence at the trial, is the following.

On the evening of Friday, 24 February 1984, she went out with appellant at his invitation. The complainant was spending the weekend G with her parents, who lived at Cowies Hill, and the appellant came there in his 'bakkie' to fetch her at about 20h30. At that stage they had known one another for approximately eight months. He was not her 'boy friend' - she in fact had another 'boy friend' at the time - but they moved in the same social circles and often met on social occasions in the company of common acquaintances. On the evening in question H complainant and appellant first went to the Imperial Hotel in Pinetown for a drink. They stayed there for about an hour and a half, but because none of their friends were there they left and went on the the Rugby Hotel, where they found some of their friends and again had a drink. They stayed there until about midnight. They then decided to go on to a night club in Durban. The appellant thereafter discovered that his I vehicle was low on petrol and they consequently went to the premises where appellant worked (he was in the business of repairing motor cars, panel-beating, etc) at number 64 Railway Road, Seaview, in order to put in some petrol.

Upon arrival at the premises in Seaview the appellant stopped in a yard in which a vehicle, described by the complainant as a white J 'Kombi', was

Corbett JA

A parked. (It would appear from appellant's own evidence that the premises belonged to a friend of his, who permitted appellant to maintain a workshop in the yard behind the house.) The appellant alighted, while complainant stayed in the 'bakkie'. Complainant noticed appellant go to a shed, where she presumed the petrol was kept. Shortly thereafter B appellant went to the Kombi, opened the middle door (which gives access to the back portion) and sat on the floor with his legs dangling outside. He commenced smoking a dagga cigarette. The complainant remained sitting in the 'bakkie' for some time, but then, feeling cold and irritated, went over to the Kombi, entered it and sat at the back on C what appeared to be a mattress, waiting for the appellant to finish his dagga cigarette. She waited for about ten minutes and in the course of waiting rested her head in her hands, closed her eyes and relaxed. The appellant then suddenly assaulted her. He pushed her down on to the mattress and forcibly held her down. He pulled up her skirt, 'ripped off' her stockings and tried to touch her private parts. The complainant screamed and struggled. She managed to escape from the Kombi and ran to D the house. The lights of the house were on and the back door was open. When the complainant reached the back door she found a lady standing there. This lady, it transpired, was a Mrs S, sister-in-law of the proprietor of the house. The complainant, thinking that Mrs S was the owner of the house, asked Mrs S whether she could use the telephone to speak to the police 'because the appellant was trying to rape her'. Mrs E S replied that it was not her house and that she would go to ask her sister-in-law. The complainant waited in the kitchen near the telephone. The appellant then came into the house and asked the complainant 'what she was trying to prove'. Complainant replied that she had no intention of having a sexual relationship with him and felt that the police need to be told about it. Appellant then 'brutally grabbed' her round the F waist and pulled her from the kitchen and down the back steps. The complainant screamed and shouted and asked Mrs S for help. Mrs S did not, however, attempt to intervene and appellant took complainant to the 'bakkie', pushed her in on the passenger side and went round to the driver's seat. The complainant had an aerosol 'Defence-U' spray attached to her key-ring. She took this in her hand and as appellant entered the G cab she sprayed the contents into his eyes. It deterred him for a few seconds and she made a move to get out of the vehicle, but he pushed her in again and hurled abuse at her. He grabbed the aerosol can from her and tried to spray her eyes, but without success. With her still crying and screaming, appellant drove off at high speed. He reached the N3 freeway and turned into it, proceeding in the direction of Durban. At a certain point appellant stopped the vehicle at the side of the road and H came round to the passenger side of the vehicle. The complainant held on to the steering wheel to prevent him pulling her out of the car. She screamed and asked him please to take her home and 'not to be silly and try and rape her'. Appellant then said that he had always had 'this wild desire' to have sexual intercourse with her. He took a blanket from the I 'bakkie' and laid it down in some tall grass near the edge of the freeway. He pulled the complainant from the vehicle, led her to the blanket and threw her down. He pulled her panties off and had intercourse with her. At a certain point the appellant also attempted to J have 'anal sex' with the complainant, but

Corbett JA

A she managed to turn over and kick him off her. She then jumped up and ran across the freeway and stood in the carriageway, ie that in which traffic proceeded away from Durban in the direction of the airport. Almost immediately a motor car approached and stopped. In it were two men, a Mr M and his son. Complainant explained to them that she had been raped and pleaded with them to take her with them, away from the B appellant who was 'still in the grass beginning to stand up'. M agreed and let her into the motor car. Complainant's evidence then proceeds:

'The gentlemen then drove to the next glide-off, I think it goes to Mobeni or something like that, and they stopped there and the gentleman who was driving the car put his arm out to me and held my hand very C tightly and in Afrikaans told me that they were going to pray for me and we stopped there for five minutes and they prayed for me and I was absolutely hysterical. We then drove to the nearest police station which was the charge office at Louis Botha Airport.'

At Louis Botha airport the police told the complainant that the charge would have to be laid at the Pinetown police station because the alleged D crime was committed in 'their area'; but said that they would telephone her parents so that they could fetch her. The complainant waited until her father came to the airport. She told him what had happened. They went home and complainant changed into some warmer clothing. Her mother then took her to the Pinetown police station, where complainant laid a charge and made a statement. A detective took her to the scene of the E crime and there she pointed out the spot where it had all happened. By this time it was about 08h00 on 25 February 1984. They found complainant's stockings about 100 metres up the road from the place where the rape occurred. At 10h55 on the same day complainant was examined by the district surgeon. The complainant estimates that the rape occurred at about 02h30.

The other witnesses called by the State were Mr M, Mrs S and the F district surgeon, Dr Noche. M, it appeared, was a lecturer in electronics and mathematics at the Technikon in Pretoria. He also had a BA degree, for which he had taken psychology as a major subject. At the Technikon he was a leader of the Students' Christian Association. In evidence he stated that as he was driving along the N3 highway at about 02h30 on 25 February 1984 he suddenly saw, in the light of his G headlamps, a young lady standing in the middle of the freeway, obviously intent on causing him to stop. He stopped and she came over to the motor car. She asked them please to help her as she had just been raped. She wanted to be taken to the police station to lay a charge. They picked her up and took her to Louis Botha airport. He confirmed having prayed H with the complainant by the side of the road. He stated:

'I said I don't...