A L Wilmot v The State

The appellant was convicted in the Regional Magistrates Court for Albany District of raping a young girl (then almost 14 years old). The complainant testified through an intermediary that during the second half of 1998, she was taken by one Mutiwe Nohesi to fetch cabbages from a farm. A white man driving a white Isuzu van picked them up. The man took the complainant into bushes where he raped her while Nohesi held her arms. The man gave the complainant R20 which Nohesi took. The complainant reported the rape weeks later when she experienced a burning sensation while urinating. She never directly identified the appellant at trial but testified that Nohesi called the white man 'Tuti'. Other witnesses confirmed the appellant was known as 'Tuti'. The appellant was also charged with other sexual offences involving three young women in June 1998, but was acquitted when their ages could not be proved. The appellant was sentenced to 11 years imprisonment (3 years suspended). His appeal to the Eastern Cape High Court was dismissed. Shortly before the appeal to the Supreme Court of Appeal, the appellant applied for new evidence to be admitted or for remittal to the trial court, based on affidavits from witnesses who claimed the complainant had retracted her allegations and stated her mother had forced her to falsely accuse the appellant.

• Whether new evidence should be admitted on appeal or the matter remitted to the trial court for hearing of further evidence
• Whether the requirements for remittal established in S v De Jager were satisfied
• Whether there was a reasonably sufficient explanation for why the new evidence was not led at trial
• Whether there was a prima facie likelihood of the truth of the new evidence
• Whether the new evidence was materially relevant to the outcome of the trial
• Whether the complainant's credibility was sufficiently undermined to warrant remittal
• Whether evidence of subsequent cases involving the complainant's allegations of rape was admissible to assess her credibility

The appeal was upheld. The appellant's conviction and sentence for rape were set aside. The case was remitted to the trial court (Regional Magistrate M S Dunywa) to: (a) hear such evidence as the State, accused or court deemed necessary relating to issues raised in the affidavits filed in the SCA; (b) hear evidence from the deponents to the affidavits filed in support of the application, subject to examination, cross-examination and re-examination; and (c) consider all evidence, hear argument, and give a decision de novo on all the evidence. The order was made subject to section 151(1)(b) of the Criminal Procedure Act 51 of 1977.

The binding legal principles established are: (1) Applications for remittal to lead new evidence must satisfy the three-part test in S v De Jager: reasonably sufficient explanation for non-production at trial, prima facie likelihood of truth, and material relevance to outcome; (2) The power to hear new evidence on appeal or remit matters will be sparingly exercised only in exceptional circumstances, given the fundamental principle that once issues have been judicially determined, finality is important; (3) Where there is a clear factual dispute in affidavits supporting and opposing remittal, a court should be cautious about resolving credibility without the benefit of oral testimony and cross-examination; (4) Where the credibility of a single witness (particularly a complainant in a sexual offense case) is central to a conviction, evidence that materially undermines that credibility may warrant remittal; (5) Evidence of a complainant's conduct in subsequent unrelated cases may be considered in exceptional circumstances where it demonstrates a proclivity to make false allegations of a distinctive and similar kind, and there is real anxiety about potential miscarriage of justice - analogous to the narrow admissibility of similar fact evidence against an accused; (6) Even where strict compliance with the De Jager requirements is uncertain, a court retains overall discretion to grant remittal in very special circumstances to prevent potential miscarriage of justice.

The Court made several important observations: (1) It expressly left open the question of the precise juristic content of the 'prima facie likelihood' test - whether it requires some degree of probability or merely reasonable possibility; (2) The Court warned of the dangers of having regard to what happened in subsequent cases involving a complainant and the 'Pandora's box of collateral issues' this could open, emphasizing there can be no absolute bar but courts should only consider such evidence in very limited circumstances; (3) The Court acknowledged the wise remarks in Metallurgical and Commercial Consultants (Pty) Ltd v Metal Sales Co. (Pty) Ltd about the difficulty of assessing credibility on affidavits alone, as assertions or denials often take on different colors when tested by cross-examination; (4) The Court expressed sympathy for the complainant, acknowledging that if she was indeed raped, requiring her to testify again involves trauma and the difficulty of testifying about events long past; (5) The Court cautioned that its tentative observations about the possible veracity of the new evidence should in no way influence the magistrate who must assess the evidence independently after hearing witnesses testify and be cross-examined; (6) The Court noted factors weighing against remittal include the possibility of fabrication of testimony after conviction and witnesses being bribed to retract evidence.

This case clarifies the application of the S v De Jager test for remittal of criminal cases to the trial court for hearing of new evidence. It confirms that such applications will only be granted sparingly and in exceptional circumstances, given the principle of finality in litigation. The judgment addresses the uncertainty regarding the 'prima facie likelihood' requirement in De Jager, discussing whether it requires a degree of probability or merely a reasonable possibility that the evidence is true. Importantly, the case illustrates that in exceptional circumstances involving serious concerns about potential miscarriage of justice, courts may exercise their overall discretion to grant remittal even where strict fulfillment of the De Jager requirements is uncertain. The judgment also addresses the difficult question of when evidence of a complainant's conduct in subsequent unrelated cases may be considered, analogizing to the narrow circumstances in which similar fact evidence is admissible against an accused. It establishes that such evidence may be relevant only where it indicates a proclivity to make false allegations of a distinctive and similar kind, and there is real anxiety about potential miscarriage of justice.