the observations of MACDONALD, A.J.P., in the Southern Rhodesian Appellate Division case of R v J, 1966(1) SA 88 at p 90, to the effect
that, while there is always need for special caution in scrutinising and weighing the evidence of young children, complainants in
sexual cases, accomplices and, generally, the evidence of a single witness, the exercise of caution should not be allowed to displace
the exercise of common sense."
The academic and legal literature on the history, raison d'etre and justification of the said rule is extensive and impressive. I
have considered these contributions, but in view of the clear conclusions to which I have come, it is not necessary to review them
in detail. I shall summarise my conclusions as follows:
The notion that women are habitually inclined to lie about being raped is of ancient origin. In our country, as in others, judges
have attempted to justify the cautionary rule by relying on "collective wisdom and experience" (see the judgment of this
Court in S v Balhuber, 1987(1) PH H 22(A) as discussed in S v F, 1989(3) SA 847(A) at 853 et seq.; 854 F - 855 B. See also S v M
1992(2)
13 SACR 188(W)). This was also the justification, before the reform of the law, in
the UK (see R v Hester 1973 AC 296 at 309; Director of Public Prosecutions v
Kilbourne [1973] AC 729 at 739 et seq). This justification lacks any factual or
reality-based foundation, and can be exposed as a myth simply by asking: whose wisdom? whose experience? what proof is there of the
assumptions underlying the rule?'
The fact is that such empirical research as has been done refutes the notion that women lie more easily or frequently than men, or
that they are intrinsically
See esp S v D and Another, 1992(1) SA 513 (Nmb HC) at 516 A-C; and the references in Labuschagne Versigtigheidsreel by seksuele sake Obiter 1992: 131 -137; 1992:136. Armstrong Evidence in rape cases in four Southern African Countries Vol 33 No 2 Journal of African Law 1989:183 says at 193 g-h:
"The cautionary rule in rape cases is based on the principle that women are naturally prone to lie and to fantasise, particularly
in sexual matters and that they are naturally vengeful and spiteful and therefore likely to point a finger at an innocent man just
out of spite. There is absolutely no evidence that women are less truthful than men, or that they fantasise more or that they are
naturally vengeful and spiteful. Such a suggestion is misogynistic, and should be dismissed out of hand. Therefore the cautionary
rule is based on a principle which is discriminatory towards women, and inappropriate in countries committed to equal rights for
men and women, and the rule should be prohibited on this ground alone. The cautionary rule has been called a lingering insult to
women."
14
unreliable witness.2
An English Law Commission Working Paper (No 115, 57-58) also found
no evidence to substantiate the cliche that the danger of false accusations is likely to exist merely because of the sexual character
of the charge, and the Supreme Court of California, in P v Rincon-Pineda (14 Cal 3d 864), despite a detailed examination of empirical
data, found no evidence that complainants in sexual cases are more untruthful than complainants in other cases. It concluded that
the rule was one without a foundation; that it was unwarranted by law of reason; that it discriminates against women, denies them
equal protection of the law and assists in the brutalization of rape victims by providing an unequal balance between their rights
and those of the accused.
2 See also Colleen Helen Hall, Sexual Politics and Resistance to Law Reform: A critique of the South African Law Commission Report on Women and Sexual Offences in South Africa. LLM Thesis, University of Cape Town, 1987:88; Dianne Hubbard, A critical discussion of the law on rape in Namibia. University of Namibia, Windhoek 1991:34.
15 The New York Sex Crimes Analysis Unit carefully analysed all allegations
made to them over a period of two years. They found that the rate of false
allegations for rape and sexual offences was around 2 percent, which was
comparable to the rate for unfounded complaints of other criminal offences (see
DJ Birch, Corroboration in Criminal Trials : a Review of the Proposals of the Law
Commission's Working Paper. Criminal Law Review 1990:667 at 678 note 69).
The oft quoted statement by Lord Hale CJ in the seventeenth century that it is easy to bring a charge of rape (and difficult to refute
it) is, with respect, insupportable.
Few things may be more difficult and humiliating for a woman than to cry rape: she is often, within certain communities, considered
to have lost her credibility; she may be seen as unchaste and unworthy of respect; her community may turn its back on her; she has
to undergo the most harrowing cross-examination in court, where the intimate details of the crime are traversed ad
16 nauseam; she (but not the accused) may be required to reveal her previous sexual
history; she may disqualify herself in the marriage market, and many husbands
turn their backs on a "soiled" wife.3
It is also sometimes said that the rule does not affect the State's burden of
proof. This is not correct. In R v W 1949(3) SA 772(A) Watermeyer CJ at 783
said that had the case been one of theft, the evidence would have satisfied the test
of proof beyond reasonable doubt; but because the case was one of sexual assault,
the same evidence would not suffice. In that case the accused was found not guilty
because the case against him had not been proved beyond reasonable doubt
although the trial court found strongly in favour of the truthfulness of the
complainant and against that of the appellant.
3 As regards Lord Hale's views, see Geis : Lord Hale, witches, and rape 27 British Journal of Law and Society 1978:90. In general see Fryer Law versus prejudice : views on rape through the centuries, vol 1, SA Criminal Law Journal 1994:74-77. I agree with the contrary view expressed by Frank J in S v D and Another, supra at 515
J, and with the similar views of Labuschagne, supra, 1992:136 and Armstrong, supra, 1989:182-183.
17 In comparable modem systems, the cautionary rule and its variations have
been abolished.
In Namibia, this was effected by the judgment of Frank J in S v D and Another, supra, and in Canada by s 8, chapter 93 of the Criminal
Law Amendment Act, 1974-75-76. (See Jeffrey G Hoskins The Rise and Fall of the Corroboration Rule in Sexual Offence Cases, vol 4 Canadian Journal of Family Law 1983:173-214.)
In the UK the obligatory nature of the rule was abrogated by s 32(1) of the Criminal Justice and Public Order Act, 1994. (Discussed
by Peter Mirfield 'Corroboration' after the 1994 Act in Criminal Law Review 1995:448 et seq.)
In New Zealand the rule was abolished by the Evidence Amendment Act (No 2) of 1985 (See John Hatchard in Journal of African Law 1993:97
at 98 note 9), and in Australia by s 62(3) of the Crimes Act (see Law Reform Commission of Victoria : Report on Rape and Allied Offences : Procedure and
18 Evidence, March 1988 : 39 par 94).
In California it was held in P v Rincon-Pineda, supra, that the rule was unwarranted by law or reason (see also the discussion by
John Hatchard, supra, at 98 et seq).
In my view, the cautionary rule in sexual assault cases is based on an irrational and out-dated perception. It unjustly stereotypes
complainants in sexual assault cases (overwhelmingly women) as particularly unreliable. In our system of law, the burden is on the
State to prove the guilt of an accused beyond reasonable doubt - no more and no less. The evidence in a particular case may call
for a cautionary approach, but that is a far cry from the application of a general cautionary rule.
In formulating this approach to the cautionary rule under discussion I respectfully endorse the guidance provided by the Court of
Appeal in R v Makanjuola R v Easton ([1995] 3 All ER 730 (CA)), a decision given after the
19
legislative abrogation of the cautionary rule in England. Although the guidelines
in that judgment were developed with a jury system in mind, the same approach,
mutatis mutandis, is applicable to our law.
At p 732 f to 733 a Lord Taylor CJ stated:
"Given that the requirement of a corroboration direction is abrogated in the terms of s 32(1), we have been invited to give guidance
as to the circumstances in which, as a matter of discretion, a judge ought in summing up to a jury to urge caution in regard to a
particular witness and the terms in which that should be done. The circumstances and evidence in criminal cases are infinitely variable
and it is impossible to categorise how a judge should deal with them. But it is clear that to carry on giving 'discretionary' warnings
generally and in the same terms as were previously obligatory would be contrary to the policy and purpose of the 1994 Act. Whether,
as a matter of discretion, a judge should give any warning and if so its strength and terms must depend upon the content and manner
of the witness's evidence, the circumstances of the case and the issues raised. The judge will often consider that no special warning
is required at all. Where, however, the witness has been shown to be unreliable, he or she may consider
20 it necessary to urge caution. In a more extreme case, if the witness is shown to have lied, to have made previous false complaints,
or to bear the defendant some grudge, a stronger warning may be thought appropriate and the judge may suggest it would be wise to
look for some supporting material before acting on the impugned witness's evidence. We stress that these observations are merely
illustrative of some, not all, of the factors which judges may take into account in measuring where a witness stands in the scale
of reliability and what response they should make at that level in their directions to the jury. We also stress that judges are not
required to conform to any formula and this court would be slow to interfere with the exercise of discretion by a trial judge who
has the advantage of assessing the manner of a witness's evidence as well as its content."
Lord Taylor CJ then formulated eight guidelines, the third of which is
particularly important for our purposes. It reads as follows (see p 733 c-d):
"(3) In some cases, it may be appropriate for the judge to warn the jury to exercise caution before acting upon the unsupported
evidence of a witness. This will not be so simply because the witness is a complainant of a sexual offence nor will it necessarily
be so because a witness is alleged to
21 be an accomplice. There will need to be an evidential basis for suggesting that the evidence of the witness may be unreliable. An evidential basis does
not include mere suggestions by cross-examining counsel." (My emphasis.)
It follows that the magistrate was not obliged to apply such a rule.
I am not convinced that the trial court misdirected itself on the evidence before it, nor that the decision was wrong. On the contrary,
the guilt of the appellant was proved beyond reasonable doubt. The actions of the complainant were consistent with the allegations
made by her. The abrasions found by the district-surgeon were compatible with her evidence and difficult to reconcile with the version
of the appellant that he merely rubbed the complainant's private parts without using any force and while she was fully clad. His
explanation of the scratches on his forehead and ear, uncorroborated as it was, would mean, if true, that the complainant was lying
on this score. But how would she have known that he was injured, as it was never suggested that she was present when he was
22 allegedly scratched by his wife?
Furthermore, on both versions the complainant fled from the car, leaving her plimsoles there. This is incompatible with the accused's
version of consensual and non-violent love making. When the complainant reached her sister and friends, she was hysterical and immediately
complained of having been raped. The district-surgeon also reported that when he examined her, she was in a state of shock. This
is incompatible with the accused's version.
There appears, from the evidence, to be no reason why the complainant would have lied to her sister and friends, to the district-surgeon,
to the police and to the trial court. There was no enmity between the complainant and the accused before the incident occurred; on
the contrary, they were driving around and he chose her to go with him for a further drive. He was a brother of her friend. There
appears to be no reason for falsely implicating the accused in a serious crime and for bringing shame and hurt upon herself.
23
In my view, the appeal against the conviction must fail.
If the sentence imposed by the trial court is open to criticism, it can only be that it sins on the side of leniency. The complainant
was at the time a young, slimly built schoolgirl. The accused was older, bigger and stronger. It emerges from the evidence that she
knew the accused was a policeman, and that she trusted him as a friend. His treatment of her was a despicable abuse of physical strength,
and a violation of friendship and trust. The fact that he was a policeman whose duty it was to uphold law and order and not subvert
is, is an aggravating factor. He acted in a manner unacceptable in our society, which is committed to the protection of the rights
of all persons, including, pertinently, the right of women to their physical and moral integrity. Moreover, his actions had a serious
detrimental effect on the psyche of the complainant.
24 In short, there is no merit in the appeal against the sentence.
In the result, the appeal against the conviction and sentence is dismissed.
I concur:
Mahomed CJ Van Heerden DCJ Streicher JA Farlam AJA
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