S v Mkhize (CC55/11 D) [2011] ZAKZDHC 62; 2012 (2) SACR 90 (KZD) (8 December 2011)

S v Mkhize (CC55/11 D) [2011] ZAKZDHC 62; 2012 (2) SACR 90 (KZD) (8 December 2011)

The application to cross-examine the complainant regarding an alleged sexual incident occurring after the alleged rape is refused. The court found that the questioning sought to be adduced was intended to support an inference that the complainant is less worthy of belief, which is expressly prohibited by section 227(6)(b) of the Criminal Procedure Act. Even if this exclusion did not apply, the court held that the questions were not relevant to a fact in issue, as the accused's right to a fair trial would not be infringed by refusing the application. The complainant had already answered the question, and the accused could present his version and call witnesses. The potential prejudice to...

Citation
[2011] ZAKZDHC 62
Parties
Applicant: The State; Respondent: Thandukwazi Mkhize
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
8 December 2011
Case Number
CC55/11 D
Procedural Posture
Criminal Application / Application for Leave to Cross Examine Complainant Under Section 227(2)(a) of the Criminal Procedure Act
Outcome
Application in terms of section 227(2)(a) of the Criminal Procedure Act is refused.
Judges
J.I. Henriques
Legal Topics
Sexual Offences, Cross Examination, Admissibility of Evidence, Criminal Procedure Act Section 227
Criminal Law Sexual Offences Cross Examination Admissibility of Evidence Criminal Procedure Act Section 227

Case Brief

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Parties

The State

Applicant

Thandukwazi Mkhize

Respondent

Procedural Posture

Criminal Application / Application for Leave to Cross Examine Complainant Under Section 227(2)(a) of the Criminal Procedure Act

Legal Issues

  1. 1 Whether the accused may cross-examine the complainant regarding an alleged sexual incident occurring after the alleged rape.
  2. 2 Whether such questioning is relevant to a fact in issue under section 227(2)(a) and (5) of the Criminal Procedure Act.
  3. 3 Whether the application falls foul of the exclusion in section 227(6)(b) prohibiting evidence to support an inference that the complainant is less worthy of belief due to sexual conduct.

Ratio Decidendi

The application to cross-examine the complainant regarding an alleged sexual incident occurring after the alleged rape is refused. The court found that the questioning sought to be adduced was intended to support an inference that the complainant is less worthy of belief, which is expressly prohibited by section 227(6)(b) of the Criminal Procedure Act. Even if this exclusion did not apply, the court held that the questions were not relevant to a fact in issue, as the accused's right to a fair trial would not be infringed by refusing the application. The complainant had already answered the question, and the accused could present his version and call witnesses. The potential prejudice to...

Court Disposition

Application in terms of section 227(2)(a) of the Criminal Procedure Act is refused.

Orders

  • The application to cross-examine the complainant regarding an alleged sexual incident after the alleged rape is dismissed.