CHARACTER EVIDENCE

Required reading

Schwikkard, chapter 6 (not section 6.2.3); 25.2 (impeaching the credibility of an

opponent’s witness)
S v Sinkankanka and Another 1963 (2) SA 531 (A) (casebook p. 33)
S v ffrench-Beytagh (3) 1971 (4) SA 571 (T)
S v Zwane 1993 (1) SACR 748 (W); 1993 (3) SA 393 (W)
R v Adamstein 1937 CPD 331

Further reading

Hoffmann and Zeffertt, chapter 3 (not pp. 32 - 46)

Schmidt, chapter 16
LAWSA, Evidence, paragraphs 486 - 495
Geyser en ‘n Ander v Pont 1968 (4) SA 67 (W)

“Character” in modern usage means a tendency to behave in a particular way

(geaardheid of inbors). For example, he has a bad character means that he does or
is likely to do bad things. That is he/she has a particular disposition to do certain
things. In its older meaning, character referred generally to a person’s reputation
(reputasie). This is usually what is meant in the classical formulations.

As Schmidt points out the older usage of the word “character” is not very helpful
because what is helpful to a court is not the person’s reputation, but his/her real
disposition (i.e. the modern meaning of character). The opinion of other persons
about a person’s reputation would not be very helpful, because that would be the
external manifestation of the person i.e. what people think about the person and not
his/her real disposition i.e. the internal character of the person. The leading case is
the English decision of R v Rowton 1867 - 1873 All ER Rep 549 (the passage is
quoted by Schmidt at p. 413). Willes J held that:

“ it is necessary to consider what is the meaning of evidence of character. Does it

mean evidence of general reputation or evidence of disposition? I am of the opinion
that it means evidence of general reputation. What you want to get at is the tendency
and disposition of the man’s mind towards committing or abstaining from committing
the class of crime with which he stands charged; but no one has ever heard the
question - what is the tendency and disposition of the prisoner’s mind? - put directly.
The only way of getting at it is by giving evidence of his general character founded on
his general reputation in the neighbourhood in which he lives. That … is the sense in
which the word ‘character’ is to be taken, when evidence of character is spoken of”
(emphasis by Schmidt).

The general rule can be formulated that where character evidence is relevant it
has to take the form of evidence about a person’s reputation i.e. his/her general
character. The witness may not give his/her personal opinion, nor may the
witness refer to specific acts. Individual opinions may differ, evidence of reputation
may however be a consensus of other persons’ views. One example of good or bad
conduct would not give a full picture of the person’s reputation. Testimony about
individual bad or good events or actions may make the case interminable i.e. each
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event would have to be investigated. See LAWSA, Evidence, par. 486 and Schmidt
p. 413.

It is difficult in practice to separate evidence of the general reputation of a person

(this is admissible), with evidence of the opinion of a witness, perhaps illustrated by
particular examples (this is inadmissible). If a witness gives a vague account of a
person’s reputation, which the witness says is the opinion of other persons as well,
then this evidence is admissible. It will be appreciated that even if this evidence is
relevant, which as will be seen below it is usually not, then the evidence will not carry
much weight. An exception is where the character of a party is a factum probandum
(see below). Theoretically, an accused testifying on his/her own behalf, may not give
specific instances of his/her good character, but it is difficult to maintain the
distinction in practice (Tapper, 349).

Schmidt’s view is that evidence of reputation is not exactly trustworthy. After all, the
evidence is based on the witness’ opinion of a group of other persons’ opinions,
which is based on hearsay evidence concerning the particular person’s conduct.
Character evidence is a shaky basis for drawing conclusions about the real issues at
a trial (at p. 413).

Tapper at p. 353 says that evidence of general reputation rests on “hearsay, gossip
and rumour”, which is “thoroughly unconvincing.”

Evidence of good character would therefore not usually be admitted because it is

irrelevant. Evidence of bad character would “harass and prejudice the party against
whom it is offered by raking up the whole of his career, which he would not be
prepared to defend without notice; so even if the evidence has some distinct
relevance it may be rejected on that score”, Elliott and Phipson at p. 18.

Following Schmidt (p. 412), similar facts (evidence of previous convictions) and
cross-examination of an accused as to bad character will be dealt with later. The
general rules applicable here should be borne in mind when we deal with these
topics.

Application of the rule

A The plaintiff or applicant in a civil matter

Rule - In general, the character of a party in a civil matter is irrelevant. It will not
assist either party to call evidence of good character or to try and attack the character
of the other party.

Tapper at 357 writes that in general, evidence of the good character of a party in civil
proceedings may not be led i.e. may not be tendered by a party into evidence. This
differs from the position of an accused, who may always lead evidence of good
character.

The exception to this rule is where character is a factum probandum in the action.
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An example of this is a defamation action. A defendant may plead truth and for the
public benefit as a defence. The statement may be that “politician X is a liar, a cheat
and a fraud.” Evidence would be admissible to prove what politician X’s reputation is.

Secondly, reputation is usually essential to prove damages - i.e. the action is aimed
at compensating one for the diminution of one’s fama. One must therefore prove the
fama, to show that there is something to defame.

In Geyser en ‘n Ander v Pont 1968 (4) SA 67 (W), Pont published articles in “Die
Hervormer”, the official publication of the Nederduitsch Hervormde Kerk van Afrika, in
which he described Geyser and Beyers Naude as communists, supporters of
communists, hypocrites, persons of low morals etc. Geyser and Beyers Naude sued
for defamation. The court found that the plaintiffs had been defamed. When
considering what damages the plaintiffs were entitled to, it was argued by the
defendant that plaintiffs had participated in various specific activities that should have
the effect of reducing their damages. Trollip J held (at 77F - 78A):

“Die sleutel-uitspraak in verband met watter feite aangevoer kan word ter
vermindering van skade in 'n lastersaak, is die welbekende ou Engelse saak van
Scott v Sampson, (1882) 8 Q.B.D. 491. Daar het Regter CAVE die beginsel duidelik
gestel of bekragtig dat algemene getuienis van die eiser se reputasie (fama)
aangevoer kan word, maar dat getuienis van besondere feite of omstandighede
betreffende die eiser, wat slegs geneig is om sy karakter of geaardheid aan te toon,
ontoelaatbaar is. In verband met laasgenoemde het die Regter gesê (bl. 505):

'At most it tends to prove not that the plaintiff has not, but that he ought not to have, a
good reputation, and to admit evidence of this kind is in effect . . . to throw upon the
plaintiff the difficulty of showing a uniform propriety of conduct during his whole life. It
would give rise to interminable issues which would have but a very remote bearing on
the question in dispute, which is to what extent the reputation which he actually
possesses has been damaged by the defamatory matter complained of.'

(Terloops kan ek net hier verwys na die bogemelde lys van feite en omstandighede as
voorbeelde van moontlike 'interminable issues' wat die partye in hierdie saak terdeë
sou moes ondersoek het indien die reël anders was!).

Scott v Sampson en dié beginsel is onlangs in die House of Lords bevestig (Plato
Films Ltd v Speidel, 1961 A.C. 1090), en dit is ook in ons Howe as korrek aanvaar
(sien bv. Sutter v Brown, 1926 A.A. 155 op bl. 172; Joseph v Black, 1930 W.P.A. 327
op bl. 330; 1931 A.A. 132 op bl. 146; Solomon v Robinson & Co. Ltd., 1927 N.P.A.
125). Natuurlik, as die besondere feite en omstandighede betreffende die eiser direk
verwant is aan die gewraakte lasterlike woorde, is getuienis daarvan toelaatbaar as
synde bykomende omstandighede wat ter vermindering van skade in ag geneem kan
word (Walten v Cohn, 1947 (2) SA 225 (N) op bl. 231, 232; cf. Willoughby v McWade
and Others, 1932 K.P.A. 66 op bl. 71).”

Trollip J also held that if a defendant wishes to raise specific events in order to
reduce a plaintiff’s damages, these must be specifically pleaded (i.e. they become
part of the facta probanda). The defendant could therefore not rely on the specific
events raised, because they had not been pleaded. The plaintiffs were successful
and an amount of R10 000 each was awarded as damages.

B The defendant or respondent in a civil matter

The character of a defendant or a respondent in a civil matter is usually irrelevant,

and the position is therefore the same as that of the plaintiff or applicant. Evidence of
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a defendant’s good character would, for example, be irrelevant in an action for

breach of contract.

Baron Martin held in Attorney-General v Radloff (1854) 10 Exch 84 at 97:

In criminal cases evidence of the good character of the accused is most properly and
with good reason admissible in evidence, because there is a fair and just presumption
that a person of good character would not commit a crime; but in civil cases such
evidence is with equal good reason not admitted, because no presumption would
fairly arise, in the very great proportion of cases, from the good character of the
defendant, that he did not commit the breach of contract or of civil duty alleged
against him.”

It should be noted that at this time, the accused was not a competent witness for the
defence. Evidence of the good character of an accused is seldom given today.

C Third parties

Evidence of the character of a third party is usually irrelevant.

D The accused

Section 227 of the CPA provides that:

“Evidence as to the character of an accused or as to the character of any woman

upon or with regard to whom any offence of an indecent nature has been committed,
shall be admissible or inadmissible if such evidence would have been admissible or
inadmissible on the thirtieth day of May 1961.”

This essentially provides that English law as then applied will apply.

(a) Good character

As indicated, evidence of character is usually equally as irrelevant in a criminal trial

as in a civil trial.

The accused may nevertheless lead evidence of his/her good character i.e. his/her
general reputation. See R v Rowton (above). It would usually be foolish to do this,
because evidence can then be led about the accused’s previous convictions and the
accused can be cross-examined about these and his bad character (section 197(a)
of the CPA). This topic will be discussed in detail in the lecture on witnesses: viva
voce evidence.

(b) Bad character

Rule - The prosecution is not allowed to lead evidence of the bad character of
the accused, unless the accused leads evidence of his/her good character.

The reason for the rule is the limited probative value of the evidence and the
prejudice which would be caused to the accused.
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The state is always allowed to lead evidence that the accused committed the offence.
The state may do this despite the fact that it will tend to show that the accused may
be a criminal and therefore is of bad character. The evidence is of course not
tendered for this reason, but to prove the offence, which is why it is admissible.

Similarly, on a charge of escaping from lawful custody it will be necessary to prove

that the accused was in lawful custody. It would therefore be necessary to lead
evidence as to the arrest on the charge on which the accused was being held.

An important exception to the rule is that the prosecution can lead evidence of bad
character, if the accused leads evidence as to his/her good character. This is only
fair to give the state an opportunity to rebut the accused’s evidence. This is tactically
very damaging for the accused, because the prosecution which has closed its case
then opens it again to lead this evidence after the defence’s case is closed. i.e. the
state has the last word, which is always important.

It should be appreciated that the accused must lead evidence of his/her good
character before the state can lead evidence of the accused’s bad character. To
cross-examine a state witness in respect of his/her previous convictions will not lead
to the state being able to lead evidence of the accused’s previous convictions. The
accused may however be cross-examined on his/her previous convictions in this
event under section 197(a) of the CPA. This will of course not assist the state if the
accused does not give evidence. This is what happened in R v Butterwasser [1948]
1 KB 4; [1947] 2 All ER 415 (a razor-slashing in Soho), in which the accused cross-
examined state witnesses on their previous convictions but did not give evidence
himself and did not give evidence of his good character. The state then proved his
previous convictions. This evidence was inadmissible and his conviction was set
aside. Cross-examination of an accused under section 197 of the CPA will be
discussed under witnesses: viva voce evidence.

The fact that the state can lead evidence of the accused’s previous convictions or of
particular bad acts when the accused has given general evidence of his/her good
reputation, illustrates the difficulties with the rule that only evidence of a person’s
general reputation can be led. In this case, the state is permitted to lead evidence of
convictions i.e. particular acts or instances and not only evidence of general
reputation. This is contrary to the accepted position as expressed in R v Rowton,
above, which is still the leading case in England. That evidence of particular bad
acts and of the previous convictions of the accused can be led notwithstanding the
rule in Rowton is also clear in English law. See Tapper at pp. 351 - 353.

E The opponent’s witness

Rule - the character of a witness is only relevant as to credibility.

One of the aims of cross-examination (see later) is to show that a witness is not
believable i.e. that he/she cannot be trusted. It frequently happens that a witness
gives an answer which one would like to demonstrate is false or mistaken. In other
words, the cross-examiner would like to lead evidence to rebut the answer given by
the witness.
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The rules of the law of evidence have had to distinguish between answers which are
relevant to the issue and answers which are not. It would not be practicable to permit
evidence in rebuttal to be led in respect of each answer, because trials would then be
interminable.

As a general rule, a witness’ answer which is relevant only to his/her credibility

or credit is final. A question which is relevant solely to the witness’ credit i.e.
whether the witness should be believed or is trustworthy, and not to a fact in issue, is
a collateral fact. See S v ffrench-Beytagh (3) 1971 (4) SA 571 (T) at 572A - B.
Evidence may not be led in rebuttal of such an answer. The exceptions, which are
broadly based on trying to place a fuller picture before the court of the motivations,
ability, bias, interest or general untrustworthiness of the witness, are set out below.
Previous convictions does not fit this general framework, though, because even
convictions that are irrelevant to credibility (for example for perjury) can be put to a
witness.

(i) Previous convictions

In all criminal trials section 6 of the Criminal Procedure Act 1865 (England) applies.
This is because of section 190(1) of the CPA (a reference to the law on 30 May
1961) read with section 281 of the Criminal Procedure and Evidence Proclamation,
Proc. No. 30 of 1935. Section 281 of the Proclamation provides that:

“It shall be competent to any party in criminal proceedings to impeach or support the
credibility of any witness called against or on behalf of such party in any manner and
by any evidence in and by which if the proceedings were depending before the
Supreme Court of Judicature in England the credibility of such witness might be
impeached or supported by such party and in no other manner and by no other
evidence whatever …”

In South Africa the reference is to section 286 of the CPA 1955, before amended in
1963. See Hoffmann at pp. 466 - 468. Section 6 provides that:

“A witness may be questioned as to whether he has been convicted of any felony or

misdemeanour, and upon being so questioned, if he either denies or does not admit
the fact, or refuses to answer, it shall be lawful for the cross-examining party to prove
such conviction.”

The same section does not apply in civil trials in Namibia (only in the Transvaal and
Natal), but the law as to whether there is a common law rule i.e. not one based on
statute, is far from certain.

It is generally accepted that any conviction can be put to a witness, even though the
conviction is not relevant to credibility. A conviction for dishonesty, for example,
would be relevant to credibility. See Hoffmann p. 467, Schmidt p. 419 and Tapper p.
315.

(ii) Bias

Evidence can be led in rebuttal to prove an opposing witness’ bias. Bias might arise
from a family relationship, love affair etc. Usually the fact is obvious to the court i.e.
the witness is identified as the wife, brother etc. of the party, but evidence is
permissible to bring out this relationship where it is not obvious or is concealed, for
example that the witness is the mistress of the man on whose behalf she is testifying.
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(iii) Corruption

If a bribe has been solicited by a witness (Jackson v Thomason (1861) 8 Jur NS 134
- the case of Grant v SA National Trust & Assurance Co. Ltd and Others 1948 (3) SA
59 (W) is to the contrary, but no authorities were cited for the conclusion) or has been
accepted by a witness (R v Denley [1970] Crim LR 583) then evidence may be led in
rebuttal i.e. this may be proved following denial of the bribe (or solicitation) by the
witness. Where however a bribe has only been offered to a witness and not
accepted, then evidence may not be led in rebuttal. See Attorney-General v
Hitchcock (1847) 1 Exch 91. For a discussion of this area see Tapper at p. 337.

The rationale for these decisions would appear to be that where a bribe has been
solicited by the witness or accepted, it would tend to show that the witness should not
be believed because the testimony is likely to have been corrupted or perverted.
Where a bribe has only been offered and not accepted, it would have no effect on the
testimony of the witness.

(iv) Lack of veracity

One cannot lead evidence of particular lies. One can however lead a witness to say
that from his or her knowledge of the witness, he/she would not believe an opposing
witness’ evidence under oath. This is the form in which Davis J permitted the
question to be put in R v Adamstein 1937 CPD 331 at 334 on the strength of English
authorities. This form of the question was endorsed in Toohey v Commissioner of
Metropolitan Police 1965 1 All ER 506.

Toohey’s case is also authority for the view that evidence may also be led to show
that a witness’ lack of veracity is due to a physical or mental condition. The House of
Lords held that the accused should have been allowed to lead medical evidence that
the complainant who testified for the prosecution was suffering from hysteria. The
House of Lords held at p. 509:

“Medical evidence is admissible to show that a witness suffers from some disease or
defect or abnormality of mind that affects the reliability of his evidence. Such
evidence is not confined to a general opinion of the unreliability of the witness, but
may give all the matters necessary to show not only the foundation of and the reasons
for the diagnosis but also the extent to which the credibility of the witness is affected.”

(v) Other grounds

Further examples by Schmidt are that a witness is unreliable because he/she is short
sighted, mentally ill, deaf or hard of hearing etc. Evidence can be led in rebuttal that
a person relayed evidence given in court to a party sitting outside court.

S v ffrench-Beytagh (3) 1971 (4) SA 571 (T) is a rather unusual case. A state
witness had said that she was a member of the Black Sash. She attended a meeting
of the Black Sash. It was put to her in cross-examination that she was in fact an
adherent of a political party (it does not appear from the judgment, but it is
presumably the National Party) whose views are directly opposed to those of the
Black Sash. She denied this.
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Kentridge SC did not rely on bias (see above) as the ground for leading evidence in
rebuttal. He contended that the “lie” went to the root of her evidence, because in
reality she opposed the aims of the Black Sash (at 574 bottom to 575 top). This
seems to me to fall under bias. Cillie JP after concluding that the evidence was only
relevant to credit, held that on a strict construction the evidence should not be
admitted (at 575B). The court however held that it had a discretion particularly where
an accused was concerned and was currently leading evidence and accordingly
allowed the evidence to be given. Schmidt concludes that the evidence was relevant
as to the motives of the witness when attending the meeting, but recognises that the
evidence was admitted under a judicial discretion (at p. 424).

Evidence in rebuttal of opponent’s witness - finality of answers

Rule - answers other than listed in the previous section, which are given by a
witness with regard to collateral facts, are final. Evidence cannot be led in
rebuttal.

In Hesseling v Meyer 1991 (1) SA 276 (SWA), a decision of the South West African
division delivered shortly before independence by Strydom J, as he then was, dealt
with an application by the plaintiff to re-open his case and to lead further evidence.
An issue which arose was whether the evidence was of a collateral nature i.e. it
would not be admissible in any event. Strydom J held at :

“Indien die getuienis wat die eiser by heropening van die verhoor wil aanbied slaan op
'n kollaterale aspek en bloot daarop gemik sou wees om aan te toon dat die getuie,
mev Meyer, ongeloofwaardig is, dan volg dit dat haar ontkenning dat die inskrywing
vervals is, afdoende is en sou verdere getuienis, om dit te weerlê, nie toelaatbaar
wees nie. (Kyk Schmidt Bewysreg 2de uitg op 414; S v Sinkankanka and Another
1963 (2) SA 531 (A) en S v Maduna and Others 1978 (1) SA 143 (D).)

Ten opsigte van die beantwoording van die vraag van wanneer 'n aangeleentheid
relevant tot die geskilpunte in 'n saak is, het die Appèlhof in die Sinkankanka -saak
supra met goedkeuring die toets neergelê in Attorney-General v Hitchcock (1847) 1
Exch 91 (154 ER 38), aangehaal. Hierdie toets word soos volg uiteengesit op 42 van
154 ER:

'(T)he test, whether the matter is collateral or not, is this: if the answer of a
witness is a matter which you would be allowed on your part to prove in
evidence - if it has such a connection with the issue, that you would be
allowed to give it in evidence - then it is a matter on which you may contradict
him.'

Ten opsigte van die bepaling omtrent die relevansie van 'n feit sê Ogilvie Thompson
AR op 539 van die Sinkankanka -saak die volgende:

'If the witness' answer is relevant to the issue before the Court - if, in Pollock
CB's words, "it has such a connection with the issue that you would be
allowed to give it in evidence" - then such answer may be contradicted by
rebutting evidence. For facts relevant to the issue may always be proved, and
any facts are so relevant if from their existence inferences may properly be
drawn as to the existence of the fact in issue.'

On the particular facts of the case, Strydom J held that the evidence was not
collateral and would therefore be admissible. The court concluded by granting
plaintiff leave to re-open his case. The judgment was confirmed on appeal. See
Meyer v Hesseling 1992 (3) SA 851 (NMS).
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S v Sinkankanka and Another 1963 (2) SA 531 (A) illustrates the principle where the
evidence sought to be led was not collateral, but relevant to the issue. Students are
required to read and analyse the judgment. See also S v Motlhabakwe en Andere
1985 (3) SA 188 (NC) for a further illustration.

It is settled law in the Transvaal at least, that a witness may be asked in cross-
examination if he/she has been disbelieved in previous judicial proceedings. There
do not appear to be any decisions to the contrary in other Southern African
jurisdictions. Zeffertt criticises the decision in S v Damalis 1984 (2) SA 105 (T) in
Hoffmann at pp. 460 - 461 on the basis that the finding of a previous court is hearsay
and is opinion evidence. The witness may have been disbelieved for a number of
reasons.

In S v Zwane 1993 (1) SACR 748 (W), Cloete J rejected Zeffertt’s criticisms, finding
support in English decisions. The question, and therefore the answer, usually only
goes to credibility and the answer given is then final. The answer may not be final
where the previous proceedings are relevant to the issues before the court. Cloete J
summarises how cross-examination may be conducted (at 394H - 395B):

If the finding by a previous court on the credibility of a witness whose credibility is

sought to be impugned is a purely collateral matter - as it frequently will be - such
material can nevertheless be used to cross-examine the witness; but if the witness
gives a reply under cross-examination which contradicts the previous finding, or his
evidence on the issues in the previous matter, then (always assuming that the
previous finding and his previous evidence are not relevant to the issue before the
court in the subsequent proceedings) such reply is conclusive and the cross-examiner
is neither entitled to adduce evidence, nor is he permitted to put portions of the record
of the previous proceedings to the witness, to contradict such reply. The furthest that
the cross-examiner could go in the face of a denial, on the authority of R v Seham
Yousry 11 Cr App R 13 at 18 (which I accept as correctly reflecting the South African
law), would be to show the relevant portion of the previous record to the witness and
say: 'Look at this paper: do you still adhere to your answer?' If the witness does
adhere to his answer, that is an end of the enquiry although a prosecution for perjury
could, of course, follow.”

This would appear to be the better approach. It recognises that the question is
usually only relevant to credibility and for this reason the record may not be
introduced. The question and its answer and the demeanour of the witness, though
this is not always a reliable guide, will assist the court in determining the credibility of
the witness. It also accords with the approach that most questions are permissible in
cross-examination and even a seemingly irrelevant line of questioning may be
followed, usually with the leave of the court, at least until the relevance or irrelevance
of the questions become clearer.

F The own witness

One’s own witness cannot be cross-examined, unless the witness is declared a

hostile witness. Proving a previous inconsistent statement against one’s own witness
(the purpose of this is to neutralise the witness and is in practice more important than
cross-examining the witness), will be discussed under witnesses: viva voce
testimony.
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The Complainant

A complainant is treated like an ordinary witness. A complainant’s character, like that

of any other witness, is therefore only relevant in respect of credibility. It should be
noted that in criminal trials, if the character of the complainant is attacked by the
accused, then the accused lays himself/herself open to attack under section 197(a)
of the CPA (to be discussed under witnesses: viva voce testimony).

Schmidt, at p. 427, criticises the decision in R v Adamstein 1937 CPD 331. The
accused was charged with rape. One of his defences was that the complainant had
made unfounded charges of a similar nature on other occasions against white
people, more particularly her employers. Her husband had joined her in making
these charges and even coerced her into making them. The accused wanted to lead
evidence in support of this defence. The court ruled the evidence inadmissible.
Establish the reason for the court’s decision.

Schmidt writes that the decision is based on the misimpression that specific evidence
of a lack of credibility is necessarily inadmissible i.e. one cannot lead evidence of
particular lies (see Section E(iv) above). If this evidence was only relevant to show
that the complainant had previously told lies, therefore she was probably telling lies
now, then it would be inadmissible. The evidence went further however, because it
tended to show that the complainant and her husband made a practice of making
false allegations of rape.

The reason for this is not quite clear. Apparently the marriage relationship was
unhappy, although why this should be a reason is not explained in the judgment. It
does not appear as if the complainant was guilty of extortion.

In Schmidt’s view, this is analogous to corruption or undue influence, where evidence

of this can be led (see section E, above). Schmidt concludes that there must be
something wrong with a system that does not permit an accused to prove that
complainant makes a practice of laying charges against innocent persons.

In my view, the evidence would arguably also have been admissible as similar fact
evidence. Similar fact evidence will be discussed in the following lecture. While
similar fact evidence is usually adduced by the prosecution, it has on occasion been
adduced by the defence. See in particular S v Yengeni (2) 1991 (1) SACR 329 (C).
The evidence would tend to show the use of a system by the complainant and her
husband. The evidence would however fit in more naturally under the category
suggested by Schmidt.

Read the judgment and consider whether these criticisms are well-founded.

A complainant’s character, in the sense of past sexual experiences, is considered

relevant in a rape case. Why, one is not quite sure. An exception to this would be
where the evidence goes to show that the complainant and the accused had
previously had sexual intercourse, which could be relevant, if consent were in issue.

The rule applies only to women in any offence of a sexual nature. By definition, the
complainant in a rape case can only be a woman.
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In Issue Paper No. 10 of the South African Law Commission, 31 May 1997, it is
suggested that the reasons for the existence of the rule are that:

“(a) that the essence of the offence is the protection of chastity; and

(b) that a person who has previously engaged in sexual activity does not need or
deserve protection from rape” (at para. 4.5.6)

It does not seem as if the authors agree with these reasons, nor are they particularly
convincing if one approaches rape in particular as a crime of violence, rather than a
strictly sexual offence. T

The position is regulated by statute. Section 227 contains a reference to 30 May

1961 i.e. English law applies with regard to evidence as to the character of an
accused or with regard to any offence of an indecent nature committed against any
woman.

The English common law rules are that questions may be asked in cross-
examination concerning the complainant’s bad character due to promiscuity in
general, but not about particular acts of intercourse with named men. The
complainant could also be cross-examined about sexual acts with the accused.

Evidence could not be led in rebuttal, but there were three exceptions. Firstly, that
the complainant was a prostitute, other acts of intercourse with the accused, or other
sexual acts constituting part of the surrounding circumstances. The justification for
these rules was apparently that the evidence was relevant to consent. This
justification would only apply where consent was an element (only in rape) and in
dispute. For a general discussion, see Tapper p. 341 - 342.

The English common law reflects the morality of a bygone era, where women (men
seem to be immune from moral censure) did not have sexual intercourse outside of
marriage. If they did, they were “fair game.” Du Toit et al, Commentary on the
Criminal Procedure Act, at p. 24-100B wonders “whether there is such a thing as a
‘reputation for unchastity’ in our modern society, and, if there is, how reliable it can
ever be given the sensation and speculation to which sexual reputation lends itself.”

Following a report of the South African Law Commission, section 227 was amended
in South Africa (Act No. 39 of 1989), to introduce a new section 227(2) and 227(3)
(application must be made in camera) and also to provide that the same provisions
shall apply to men (section 227(4)). Section 227(2) provides that:

“Evidence as to sexual intercourse by, or any sexual experience of, any female
against or in connection with whom any offence of a sexual nature is alleged to have
been committed, shall not be adduced, and such female shall not be questioned
regarding such sexual intercourse or sexual experience, except with the leave of the
court, which leave shall not be granted unless the court is satisfied that such
questioning is relevant: Provided that such evidence may be produced and such
female may be so questioned in respect of the offence which is being tried.”

The law in South Africa is now similar to the law in England, although the amendment
seems to have avoided some of the problems raised by Tapper in his discussion of
section 2 of the Sexual Offences (Amendment) Act 1976. See Tapper p. 343 - 346.
English law however only refers to rape (and by definition therefore only to women).
Evidence may be led and the complainant cross-examined about any previous
 12

sexual experience with the accused. In South Africa the evidence and cross-
examination must be relevant. See A St Q Skeen, Law Reform: Evidence of
character in sexual offences, SALJ (1990) 1, p. 77.

It may be noted that in my view Schwikkard overstates the position when she writes
that section 227(2) permits evidence of prior sexual relations between the
complainant and the accused without application, because it is always relevant (p.
61). The proviso to section 227(2) only states that application need not be made “in
respect of the offence which is being tried”, i.e. the actual incident giving rise to the
charge. It does not expressly always permit (as the English statute does) evidence
of prior sexual conduct with the accused.

Even where the accused wishes to lead evidence of prior sexual relations with the
complainant he will have to make application and persuade the court that the
evidence is relevant. In most cases, particularly where consent is in issue, the
evidence will be relevant. There may however be cases where the evidence will not
be relevant, although they are difficult to conceive.