MK Nkomo v The State

The appellant was convicted of raping a 13-year-old pupil at the regional magistrate's court, Bethlehem, on 30 August 2010 and sentenced to 15 years' imprisonment. The complainant testified that on 23 November 2007, the appellant, who was her teacher, offered her a lift home after a school function and instead drove to a local stadium where he raped her in his car. She reported the incident to her sister, and a charge was laid on 31 December 2007. A medico-legal report showed bruising and absence of hymen. After conviction, the appellant obtained leave to appeal. In May 2011, while the appeal was pending, the complainant wrote a letter to the appellant recanting her testimony. In the letter, she stated that she had been forced by her stepmother and a court interpreter named Khambule to lay a false charge, that she was told to have sexual intercourse with her boyfriend to create evidence of penetration, and that the plan was to extort money from the appellant. The appellant applied for remittal of the matter to the trial court to hear this new evidence.

• Whether the power to remit a matter to a trial court for the hearing of further evidence should be exercised where a witness recants earlier testimony given at trial
• What constitutes exceptional circumstances warranting the granting of a remittal order under section 22 of the Supreme Court Act 59 of 1959
• What requirements must an applicant satisfy to convince a court to remit a matter for further evidence
• Whether the complainant's letter recanting her testimony was credible and materially relevant to the outcome of the trial

The appeal was upheld. The order of the high court was set aside. The conviction and sentence of the appellant were set aside. The matter was remitted to the trial court (Regional Magistrate Phillip Johannes Visser) with the following directions: (i) the complainant's letter dated 15 May 2011 is admitted into evidence; (ii) the State's case is re-opened for the hearing of further evidence; (iii) the defence is permitted to re-open its case, should it so decide; (iv) the trial court is not precluded from calling and hearing evidence from other witnesses in relation to any relevant issues.

The binding legal principle is that while the power to remit matters for further evidence must be exercised sparingly and only in exceptional circumstances, such circumstances exist where: (1) there is a reasonably sufficient explanation why the evidence was not led at trial; (2) there is prima facie likelihood of the truth of the new evidence; and (3) the evidence is materially relevant to the outcome of the trial. Although non-fulfilment of any of these requirements would ordinarily be fatal to an application for remittal, in very special circumstances the court may exercise its discretion to grant the application nonetheless. A witness's recanting of earlier testimony will not ordinarily warrant reopening a concluded trial, but exceptional circumstances may exist where there is objective evidence supporting the credibility of the recantation and suggesting the original testimony was obtained through coercion or conspiracy. The interests of justice may require remittal where there is credible prima facie evidence that a conviction was based on perjured testimony.

The court made several significant non-binding observations: (1) The court expressed particular concern about the involvement of Khambule, an experienced court interpreter, in attempting to settle the matter and prevent criminal prosecution, noting this 'may well' amount to obstructing the course of justice and was 'particularly disturbing'. (2) The court observed that the complainant's attempted suicide and her reluctance to lay the charge, which were corroborated by the stepmother at trial, 'assume even more importance in the light of the contents of the letter' but were 'unfortunately never probed further by the defence during the trial'. (3) The court commented that the simplicity of the letter and its grammatical mistakes suggested 'the complainant never intended the letter to be used in any court process' but 'was simply trying to clear her guilty conscience', which supported its authenticity. (4) The court noted that fabrication of testimony after conviction and the possibility that witnesses may be induced to recant evidence 'are factors which must weigh heavily against the granting of the order of remittal'.

This case provides important guidance on the exceptional circumstances that may warrant remittal of a criminal matter for further evidence where a witness recants earlier testimony. It illustrates that while courts must be cautious about witnesses recanting evidence (due to concerns about fabrication, undue pressure, and finality of proceedings), remittal may be appropriate where: the recantation comes to light only after trial; there are objective factors supporting the credibility of the recantation; the manner of obtaining the new evidence suggests authenticity; and there is prima facie evidence of a conspiracy to fabricate the original testimony. The case also highlights the court's concern about potential misconduct by court officials (the interpreter Khambule) in attempting to obstruct justice. It demonstrates the court's willingness to prioritize the interests of justice over finality where there is credible evidence that a conviction may be based on perjured testimony obtained through coercion.