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Rowles v S (CA&R 139/08)  ZAECGHC 34; 2012 (2) SACR 644 (ECG) (16 May 2012)
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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE – GRAHAMSTOWN)
CASE NO.: CA&R 139/08
In the matter between:
EDWIN DEON ROWLES ….........................................................................Appellant
THE STATE …...................................................................................................Respondent
 The appellant was arraigned for rape before the Regional Court, Uitenhage. He was legally represented at the trial and pleaded not guilty to the charge. Having heard evidence from five witnesses, two on behalf of the state and three in respect of the defence the magistrate convicted the appellant of rape as charged and sentenced him to seven years imprisonment. The appellant was granted leave to appeal against both the conviction and the sentence by the Regional Court. Pending such appeal he was released on bail or R1000.00.
 Serving before us is an application for leave to adduce further evidence on appeal.
 The following are the salient facts of the case that emerged during the trial: The incident took place on the 12 August 2005. At the time complainant and appellant had been married for about four months. They had been staying apart for approximately two months due to marital strife. They would however occasionally visit each other and even spend evenings together or put up at each other’s place.
 During the evening in question they had been taking part in a snooker “pool” tournament at Peebles Club in Uitenhage. After the tournament they ended up at complainant’s place. According to the complainant, appellant asked if he could go to her place in order to have something to eat. According to the appellant however, it is the complainant who invited him saying she had prepared a big pot of soup.
 It was common cause that complainant and the appellant had sexual intercourse at the former’s place that evening. Complainant testified that she did not consent to the sexual intercourse. Her evidence was that whilst they were watching television at her place appellant raised the issue of an assault charge that she had laid against him. She assured him that she withdrew the charge but appellant did not believe her and insisted on discussing the matter. Appellant then pinned her down on the bed, removed her clothes and had sexual intercourse with her at the time when she was pleading with him not to rape her. As a result of what appellant did to her she bled through her vagina and sustained bruises on her body.
 Appellant spent the rest of the night at her place and when the complainant tried to get up appellant would wake up and ask where she was going. In the morning after the appellant had left, she proceeded to the police station where she laid a charge of rape against the appellant.
 According to Dr Thaver who examined the complainant at 09H00 on the 12 August 2005, complainant had bruises on her wrists, upper chest, ribs, lower part of the neck, knees and upper thighs. She appeared distressed and afraid. She was bleeding from her vagina with blood coming from multiple small excoriations on the vaginal wall. Dr Thaver attributed the bleeding to forceful penetration. It was put to him that the bleeding was due to a medical condition that complainant suffered namely dryness of the vagina. In response to this the doctor pointed out that if sexual intercourse was consensual complainant would have been aroused and the dryness would result in swelling of the vagina and not bleeding. It was also put to the doctor that complainant suffered from a condition that made her allergic to testosterone. He responded that he had never heard of such condition. As to whether complainant was a person who bruised easily the doctor could not comment not knowing complainant’s past medical history.
 As the trial court was about to give judgment in the matter an application was made on behalf of the appellant for leave to re-open his case and for the doctor who had seen complainant previously Dr Levenstein to be subpoenaed together with medical records relating to the complainant.
 Dr Levenstein, a general practitioner, testified that the complainant was seen by him on several occasions. But that it was only once on the 17 December 2003 that she complained of dryness of the vagina and she was diagnosed with vaginal atrophic vaginits with slight bleeding (vaginale atrofise vaginitis met gerenge bloeding). She was complaining of a dry vagina with slight bleeding. According to him the injuries on complainant’s vagina would have occurred even with consensual sexual intercourse. Regarding complainant being allergic to testosterone Dr Leverstein stated that complainant did mention that but that he did not verify that or find proof of that. It was also suggested that a person with complainant’s medical problems may, if she presses her wrists hard to take her pulse, sustain bruises. He responded that although it was difficult for him to say if a person subjects themselves to trauma they may sustain bruises.
 As indicated earlier appellant does not deny that he had sexual intercourse with the complainant. He denied it was without complainant’s consent. He attributed the bleeding per vaginam to a medical condition that complainant suffered namely dryness of the vagina during sexual intercourse and being allergic to testosterone. The bruising, to yet another medical condition she had that would cause her to bruise easily.
 Elrich Charl Pieters (Ellie) testified that during the morning of the 12 August he saw complainant at Sergio Naudè’s place crying. When he asked her why she was crying complainant told him she had a fight “stry” with the appellant and the latter does not come home anymore. And went on to say “He is gonna pay and he is gonna pay dearly”. He testified that he later saw her at Pebbles bar where they played “pool”. It would appear that the day when Mr Pieters alleges complainant uttered the words that the appellant will pay dearly was before the date of the alleged rape. During her testimony complainant denied that she spoke with Pieters. It also emerged that she did not know him that well – only knew him as Ellie or Allie. It also transpired that Pieters was appellant’s friend so is Sergio Naudè.
 The grounds for the application for leave to adduce evidence on appeal appear from appellant’s affidavit in support of the application where he states as follows:
“2. ON 29 January 2008 at Uitenhage I (have) been convicted of rape and have been sentenced to seven years imprisonment.
3. I was represented at trial by Mr Van Rhyn of GP Van Rhyn, Minaar & Kie.
4. In an appeal against my conviction and sentence I instructed Peet Erasmus Attorneys, Randfontein. Mr Erasmus has since passed away and I have since instructed Olivier and Malan Attorneys to act on my behalf. They have appointed Neville Borman & Botha as their correspondence in Grahamstown. Olivier and Malan has briefed Advocate D Cloete on appeal.
5. On preparation for appeal Adv Cloete advised that he was of the opinion that that the matter was incompetently dealt with by Mr. Van Rhyn. He advised that state witnesses were not properly cross examined and that many witnesses that were crucial to my defence were not called.
6. My defence had always been that the complainant had invited me to her home and had consented to sexual inter course. It is therefore necessary for me to show motive and that the complainant had perjured herself. I had instructed my attorney to adduce such evidence at trial but he had failed to do so. I am convinced that had he done so the court would have come to a different conclusion.
7. Adv Cloete reviewed the evidence led at trial and my instructions to my attorney and advised that evidence of the complainant’s perjury needed to be placed before court.
8. I was instructed to attend to Mr. Van Rhyn’s offices in Uitenhage to request delivery of my file. I was informed that my file had been destroyed. Mr van Rhyn should be called to explain why the file had been destroyed pending appeal and why my instructions had not been carried out. It is expected that this evidence will be accepted as true by the Court.
9. I was also instructed to attend at SAPD, Uitenhage to request copies of the files and complainants the complainant had opened against me. The police refused to supply me with any records as requested. If leave is granted these records will be subpoenaed. This evidence will show that the complainant was vexatious and should be adduced.
10. I made an attempt to contact the investigating officer to ascertain the whereabouts of the exhibits that was not produced at trial in particular the rape kit, the blood taken from the complainant, and the complainant’s clothes but was unsuccessful. This evidence will be subpoenaed and adduced at trial to dispute the version of the complainant and the conclusion of the doctor that the complainant had been raped and assaulted.
11. I also attended at the Magistrate Court, Uitenhage to obtain records of the family violence interdicts allegedly sworn out against me by the complainant but was told that such records was unavailable. These documents and records will be subpoenaed and adduced as evidence to show that the complainant had motive and intent to falsely accuse me of the acts complained off.
12. I obtained a statement from an independent witness that had contact with the complainant on the morning after the alleged incident to the effect that the complainant had perjured herself at trial. The witness will testify that she had visited him the morning of the complaint and that she had no injuries and that she had told him that she was angry at the accused for an unrelated matter and is going to have him locked up for rape. It will also show that the complainant had lied that she had gone straight to the police after the appellant had left her home. This evidence will be accepted as true because the statements were made to a friend of the complaint.
13. I attended at the complainant’s doctor to obtain the complainant’s medical files but was told that these were privileged and not available without a court order. This evidence is crucial to show that the complainant had been taking drugs at the time of the complaint and that her faculties were impaired by the simultaneous use of alcohol on the date in question
14. I also interviewed the ex husband of a previous marriage of the complainant and was informed that the complainant had on previous occasions filed vexatious proceedings against him. This evidence will show that the complainant used the same modus opedandi to incriminate the appellant.
15. I am advised that in order to obtain statements from and to compel these witnesses to testify, I would need a court order that allows further evidence to be lead on appeal.
 The power of a court of appeal to hear further evidence derives from two statutes: Section 22 of the Supreme Court Act 59 of 1959 and section 304 (2) (b) read with 309 (3) of the Criminal Procedure Act 51 of 1977. The relevant part of section 22 of the Supreme Court Act provides:
The appellate division or a provincial division, or a local division having appeal jurisdiction shall have power ̶
“(a) on the hearing of an appeal to receive further evidence, either orally or by deposition before a person appointed by such division, or to remit the case to the court of first instance, or the court whose judgment is the subject of the appeal, for further hearing, with such instructions as regards the taking of further evidence or otherwise as to the division concerned seems necessary.”
 Section 304 (2) (b) of the Criminal Procedure Act which governs the procedure on review reads:
“Such court may at any sitting thereof hear any evidence and for that purpose summon any person to appear and to give evidence or to produce any document or other article.”
Section 309 governs appeals from lower court by a person convicted and in subsection 3 it provide that the provincial or local division concerned shall thereupon have the powers referred to in section 304 (2).
 The court of appeal does not have to hear further evidence itself. This is apparent from the wording of section 304 (2) (c) (v) which provides that the matter may be remitted to the magistrates court with instructions to deal with any matter in such a manner as the provincial or local division may think fit.
 At no stage was it argued by Mr Cloete before us that exceptional circumstances existed why the evidence sought to introduce on appeal was not presented at the trial. In S v Sterrenberg 1980 (2) SA 888 at 893 f-g it was stated that:
“Because of the general need in public interest for finality in duly concluded litigation, including criminal trials this court will only exercise its discretion to receive further evidence on the hearing of an appeal if, as a minimum requirement, the circumstances are exceptional.”
 In the present case it is alleged that the matter was incompetently dealt with by the attorney who represented the appellant at the trial, Mr Van Rhyn. In S v Louw  ZASCA 43; 1990 (3) SA 116 at 123 Hoexter JA also stated the basic principle regarding hearing further evidence on an appeal to be as follows: “The basic approach may be summed up by saying that before fresh evidence will be received in a criminal appeal the circumstances must be exceptional.” The learned judge of appeal went on to quote Greenberg JA in R v Carr 1942 (2) SA 639 where he said: “... ... It must be emphasized that the inadequate presentation of the defence case at the trial will only in the rarest instances be remediable by the adduction of further evidence at the appeal stage. However serious the consequences may be to the party concerned of a refusal to permit such evidence to be led, the due administration of justice would be greatly prejudiced if such permission were lightly granted.”
 In addition to the basic minimum requirement that there should exist exceptional circumstances why the evidence sought to be adduce on appeal was not adduced, there are three other requirements:
(a) There should be some reasonably sufficient explanation, based on allegations which may be true, why the evidence which sought to be led was not led at the trial;
(b) there should be prima facie likelihood of the truth of the evidence; and
(c) the evidence must be materially relevant to the outcome of the trial.
 Having gone through the record of proceeding in the Regional Court, I do not think that the allegation of incompetency on the part of Mr Van Rhyn is justified. He cross examined the state witnesses at length and especially regarding appellant’s defence that complainant sustained the injuries she did because of certain medical conditions. That both in respect of the vaginal bleeding and bruises on her body. As would appear from my summation of the evidence even applied for the re-opening of the defence case and for complainant’s doctor to be subpoenaed.
 It is not clear in what respect complainant is alleged to have perjured herself. At no stage was it put to her that she had laid false charges against the appellant and that she was vexatious or whether if the police have records of such complaints this will be proof that the charges were false.
 In view of the fact that it is not in dispute that complainant was bleeding from her vagina and had bruises on her body I do not see the relevance of examination kit or what it will prove.
 It was held in S v De Jager 1965 (2) 612 at 613 B – C that there is always the possibility that an accused who realises during his trial what his difficulties are, may fabricate the evidence in order to navigate them. This is what the appellant is doing when he alleges that he obtained a statement from an independent witness that complainant was not injured on the morning she laid a rape charge with the police. That she said she would have the appellant locked up for rape.
 There is no indication who this witness is. Surely if it is Sergio Naudè he cannot be said to be an independent witness since we know by now he is a friend of the appellant. There is no indication when this statement was obtained in relation to the trial. Whether Mr Van Rhyn had any instructions in this regard. It is alleged however that this person is a friend of the complainant. Implicit in this allegation, and this was put to the one of the doctors, is that the bruises on the complainant were self inflicted when she was taking her pulse. The problem with this allegation is that complainant did not only have bruises on her wrist she also had extensive bruising on all around her neck, on her chest, upper thighs and knees. It seems highly unlikely that she would inflict these injuries on herself. This was in any event not raised during the trial.
 In my view therefore for reasons stated above, the appellant has not made out a satisfactory case for the relief he seeks. The application is accordingly refused. The appellant is ordered to re-instate the appeal within 21 days of this order.
N G BESHE
JUDGE OF THE HIGH COURT
KAHLA AJ I agree.
ACTING JUDGE OF THE HIGH COURT
For Appellant ADV: D Cloete
Instructed by NEVILLE BORMAN & BOTHA
22 Hill Street
Ref: Mr J Powers/Renè
Tel.: 046 – 622 7200
For Respondent ADV: D Els
Instructed by DIRECTOR OF PUBLIC PROSECUTIONS
94 High Street
Tel.: 046 – 602 3000
Date Heard 28 September 2011
Date Reserved 28 September 2011
Date Delivered 16 May 2012