S v Zuma

• Jurisdiction: South Africa
• Judgment Date: 08 May 2006
• Citation: 2006 (2) SACR 191 (W)

S v Zuma [*]
2006 (2) SACR 191 (W)

2006 (2) SACR p191

Citation	2006 (2) SACR 191 (W)
Case No	JPV2005/0325
Court	Witwatersrand Local Division
Judge	Van der Merwe J
Heard	May 8, 2006
Judgment	May 8, 2006
Counsel	C de Beer (with H J Broodryk SC and W Ngabela) for the State.; K J Kemp SC (with J Brauns SC and T Mbongwa) for the accused.

Flynote : Sleutelwoorde

Evidence — Admissibility — Evidence as to sexual experience of any female complainant in offence of sexual B nature — Application by defence in terms of s 227(2) of Criminal Procedure Act 51 of 1977 — Only with leave of Court, and if Court satisfied that questions and evidence relevant, may questions be asked and evidence adduced regarding complainant's sexual C history — Relevance, in turn, depending on facts of particular matter before Court — In casu, purpose of cross-examination, and evidence defence wishing to lead about complainant's sexual history, not to show that she had misbehaved with other men, but to show that she had previously made false accusations of rape — Cross-examination accordingly relevant to issue of consent, as well as to motive and credibility — Questions and evidence aimed at D investigation of real issues and fundamental to accused's defence — Application granted.

Evidence — Expert evidence — Psychological evidence — Psychologist reaching conclusion as to complainant's behaviour during alleged rape without having made full enquiries of complainant and without having conducted psychometric E tests — Court unable to rely on this evidence as supportive of conclusion that complainant 'froze' during alleged rape rather than offering verbal or physical resistance.

Headnote : Kopnota

The accused stood trial on a count of rape, to which he pleaded not guilty. It was common cause that the complainant, who was well known to F the accused, had visited his home on the date in question, and that, later that evening, sexual intercourse had taken place between them. There were numerous

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disputed aspects regarding the details of events leading up to the intercourse, but the material dispute concerned A whether or not the complainant had consented to intercourse, and, if not, whether the accused could reasonably have believed that she had so consented. The complainant testified that, during the course of the evening, the accused had spoken to her about whether or not she had a boyfriend and about her physical needs - she later realised that these remarks were inappropriate, coming from a man whom B she regarded and revered as a father figure. After she had fallen asleep in the guest bedroom, the accused entered the room and offered to massage her. She declined this offer, protesting that she was asleep, but he proceeded to massage her back and shoulders. Despite her further protestations, he went on to have intercourse with her. While doing so he whispered endearments to her. Later that night the complainant sent an SMS to two of her friends, in which she mentioned C that the accused was 'starting to look at me sexually': she testified that the message had made no mention of rape because she could not bring herself to say what had actually happened. During the rape she had felt as if in a daze and had been unable to move. The next morning she had bathed, taken some food from the refrigerator and left for work. In the late morning she had confided to a friend, who had phoned D her, that she had been raped.

At the end of the complainant's evidence-in-chief the State applied for leave to ask a question concerning the last time she had had sexual intercourse with a man. Leave was granted, and the answer was that it had been some 16 months prior to the alleged rape. Before beginning cross-examination, the defence applied in terms of s 227(2) of the Criminal Procedure Act 51 of 1977 (the Act) for leave to question the E complainant about her past sexual history and to lead evidence in this regard. The defence contended that the complainant's testimony - that, knowing that she was HIV-positive, she would not willingly have had sexual intercourse without a condom - could be tested only by going into her sexual history from the date at which she had become aware of her HIV status. F The defence also argued that the evidence led by the State regarding the complainant's sexual history entitled the defence to ask similar questions. In addition, the defence argued that it should be allowed to question the complainant about various other instances of alleged rape. It had information at its disposal to the effect that some of these allegations were false. In order to put forward a proper defence, G therefore, it needed to cross-examine the complainant about these allegations. The application was granted.

Under cross-examination it was suggested to the complainant that she could easily have resisted the accused, since she was almost the same size as he and a much younger person. She conceded that under normal circumstances she could have resisted him physically. However, she had frozen at the point where she had seen him naked, and had simply turned H away and kept her eyes closed. She further conceded that she had not said anything to him during the intercourse to convey her refusal to him, and that this was an important issue. She agreed that the accused could have thought that she had not objected to the whole process, that the accused was aware of the fact that she had a cellphone with her, that a landline was available for her use and that she could have left I the house at any time, and that the accused could not have foreseen that if he attempted to have intercourse with her she would freeze and would not scream.

The complainant was cross-examined about a number of accusations of rape that she had made previously against various men. In some cases she denied having made such allegations. In others she insisted that she had been raped J

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or that an attempt had been made to rape her. In some cases she could not recall exactly what had happened, and A in one instance (which had resulted in a pregnancy) she had deduced that she must have been raped while unconscious. She suspected an individual in this connection, but could not remember his name.

A clinical psychologist, Dr Friedman, testified that she had conducted two consultations with the complainant some three months after the incident, and that she had also been briefed by the public prosecutor B and had read the complainant's police statements. Regarding the complainant's behaviour during the event, Dr Friedman concluded that the unexpectedness of the attack, the fact that she had been woken from sleep, and the fact that she regarded the accused as a father figure, all made it probable that her response had been to freeze, rather than to offer resistance. This was a typical response and was to be expected C under the circumstances. Likewise, the complainant's distress and her failure to seek help immediately afterwards were consistent with what might be expected of someone who had undergone this kind of traumatic experience. Under cross-examination it emerged that Dr Friedman was unaware that the complainant had attended sessions at a mental hospital in the past, and that, while she had some knowledge of the D complainant's sexual history, she was not aware of all the previous allegations of rape or attempted rape. In any event, Dr Friedman did not regard this history as relevant to the Court. She had also not conducted any psychometric tests on the complainant.

A medical doctor testified that he had examined the complainant and found a small tear on the posterior fourchette. This injury could have resulted from various causes, including consensual intercourse. E

Two friends of the complainant testified about her behaviour on the day following the incident. The complainant had been unsettled and had told one of these witnesses that she hated the accused. One of these witnesses had received an SMS from the complainant in the early hours of the morning, soon after the incident. In it, the complainant referred to the fact that the accused had been 'looking at [her] F sexually', but did not refer to a rape.

The State called certain other witnesses, including a senior police officer who testified about a meeting that had taken place at the accused's home and at which the accused, in the presence of his attorney, had supposedly made certain pointings out. The investigating officer broadly confirmed the evidence of the senior officer. G

At the close of the State's case the defence applied in terms of s 174 of the Act for the discharge of the accused. The application was dismissed, following which the accused elected to testify.

The accused testified that he had known the complainant's family for some decades, and that he first had met her when she was a child in the early 1980s. He denied, however, that a 'father/daughter' H relationship existed between them and that she had been a close friend of one of his daughters. On the day in question, and on one prior occasion, he had talked to the complainant about boyfriends and her physical needs, but these discussions had been initiated by her. On that day the complainant had telephoned him and asked to see him at his home to discuss something with him. When she arrived he was busy and it I was only after dinner that they were able to talk briefly. It was at this point that they had talked about boyfriends and her physical needs. The complainant having announced that she would be staying overnight at his house, she was informed by the accused that, once he was finished with his work, they could discuss whatever it was that was bothering her. When he went to the guest room later, she was asleep on the J

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bed. He woke her and...