THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

CASE NO: 409/06
Reportable
In the matter between
MARK CORNICK

First Appellant
LEONARD KINNEAR
Second Appellant
and
THE STATE

Respondent

Coram:
LEWIS, PONNAN JJA, THERON AJA
Heard:
2 MARCH 2007
Delivered:
20 MARCH 2007

Summary:    Appeals against convictions and sentences for rapes committed 19 years before
charges were laid by complainant dismissed. Complainant’s evidence proved guilt of appellants
beyond reasonable doubt. Sentences confirmed.

Neutral citation: This case may be cited as CORNICK & KINNEAR v THE
STATE  [2007] SCA 14 (RSA)

LEWIS JA

[1] This appeal is against the convictions and sentences imposed on the two
appellants, Mr Mark Cornick and Mr Leonard Kinnear for rape. Both pleaded not
guilty to two counts of rape. Cornick was convicted on both charges and
Kinnear on one. They were sentenced to five and four years’ imprisonment
respectively.

[2] The case is an unusual one, for the rapes for which the appellants were
convicted occurred in 1983 some 19 years before the complainant, Mrs Belindie
Van Niekerk (to whom I shall refer as Belindie), laid charges against them.
Belindie was then a child of 14 and the appellants some four years older.
Belindie did not tell her parents or her grandparents (with whom she was
staying at the time) of the rapes at all. She told no one but a couple of friends
and even then she did not tell them much. She kept quiet about the incident
until, in 2002, she fortuitously met Cornick at his sister’s home. By then she was
married and had a child. She had not told her husband that she had been raped
until the evening she met Cornick. The meeting revived memories of her ordeal,
such that she became hysterical and had to tell her husband what had
happened. It was then that she laid the charges and that Cornick and Kinnear
were arrested, charged in the Wynberg Regional Court, Cape Town, convicted
and sentenced. Their appeal to a full bench of the Cape High Court (Mitchell
and Potgieter AJJ) was dismissed. It is with the leave of that court that this
further appeal lies.

[3] The evidence of Belindie, accepted as credible by the regional
magistrate, was in essence this. Her parents had divorced when she was very
young and her mother had moved away from the area in which they had lived in
Cape Town, to Parow. For a year she had lived with her paternal grandparents,
in Kenwyn, seeing her father on a regular basis. She had continued to attend
primary school in the Kenwyn area. She went to live with her mother some time
in 1981. But she regularly visited her grandparents and stayed with them over
school holidays. Her mother then remarried and she and her husband had built
a house in Parow. Not long after they had moved in to their new home in 1982,

Belindie went to spend the December and January school holidays in Kenwyn
with her grandparents.

[4] One Tuesday evening in January 1983 (Belindie was certain of the time
period because it was after her mother had moved into the new house and at
the start of her Standard 8 school year) she was invited to spend the night with
a former primary school friend, Louise Meyer. While Louise, her mother,
Belindie and a third girl whom Belindie did not know, were watching an episode
of the television show ‘Dallas’ five youths arrived at the house. Belindie knew
three of them, Cornick, Kinnear and Michael Kinnear. She had met them
previously at the home of a friend, Zelna Albertyn. The other two youths were
the older brother of Cornick, Raymond, and Clive, neither of whom Belindie had
met before. Michael was apparently Louise’s boyfriend.

[5] When the episode of Dallas was finished Louise’s mother went to bed.
The girls and the five youths went to Louise’s bedroom since Louise was
concerned that the noise they were making would disturb her mother.
Unbeknown to Belindie, after they went in the bedroom door was locked. Louise
and the other girl became sexually intimate with Michael and Clive respectively
as soon as they were in the room. Belindie went to sit on the bed where she
was supposed to sleep.

[6] Cornick came over to the bed, pushed her down so that she lay flat on
the bed and began to kiss her. He pushed his tongue into her mouth. She was
so naive, she maintained, that she did not even know that she was being
kissed. Cornick also forced his hand under her blouse and when she tried to
resist him he became aggressive. He then took hold of both her hands with one
of his, holding her hands above her head, and with his free hand forcibly
removed her jeans and pants. She objected and called out to the others to help
her, but they ignored her. Cornick overcame her resistance and raped her.
When he was finished his brother Raymond also raped her, and when she
screamed he held a knife to her throat and threatened to hurt her. She was then
raped by Kinnear, and a second time each by Cornick and his brother
Raymond. All three of them lay on the bed with her at the same time.

[7] She kept pleading for help and weeping but the other people in the room
continued to ignore her. When she was raped a second time by Raymond
Cornick she became hysterical. The pain was searing. She no longer cared that
there was a knife held to her throat.  Her crying alerted Louise’s mother, who
knocked on the door and asked about the noise. The men dressed hastily and
Louise opened a window for them to leave the room. She then unlocked the
door. Her mother stood at the door and did not come into the room. Louise
spoke for Belindie when asked what the trouble was. She said Belindie wanted
to go home. The mother replied that it was too late at night for her to leave and
that she could go only in the morning. Belindie had no opportunity to say
anything and in any event was in too distressed a state to speak. The mother
went away, having apparently accepted the explanation. Belindie said that the
mother was an alcoholic but did not claim that she was drunk at the time.

[8] Louise told Belindie to wash herself. She was bleeding and her clothes
and the bedlinen were stained. After washing Belindie lay on the bed, sleepless,
until morning when she went back to her grandparents’ home. She said not a
word to them about her ordeal. She had been ignorant about sex and felt
embarrassed, humiliated and ashamed at what had been done to her.

[9] That afternoon she was sent by her grandparents to the local shop to buy
something for them. There she encountered Cornick who told her that if she
ever said anything about the incident to anyone he would tell her grandparents
what she had done. Not only did this frighten her, but it also reinforced her fear
that she had done something wrong. While she felt abused and traumatized,
she did not realize that she had been raped. She felt demeaned and humiliated
and did not understand that she was in no way to blame.

[10] The result was that she threw away her bloodstained jeans and pants,
lying to her mother later as to what had happened to them. And she remained
almost completely silent about her ordeal for some 19 years. She did tell two
friends some of what had happened soon afterwards: she spoke to a girl named
Yolanda Duddy over the phone, and had seen and spoken to Zelna Albertyn. I
shall return to the evidence of the conversation with Zelna.

[11] Belindie’s distress was such that she decided to return to her mother’s
home in Parow prematurely. She phoned her mother and asked to be fetched to
return home earlier than planned. Her mother confirmed when testifying that this
had happened, and that Belindie had explained her wish to return early on the
basis that her friends were not around and that she was lonely.

[12] Belindie did not tell her mother about the rapes. She felt unable to do so.
She and her mother did not have a close relationship and she had effectively
been brought up by her grandparents since she was about four. She had never
been told about sex by her mother, nor about female physiology. Indeed she
knew nothing of menstruation until she began her periods. She said that she did
not realize, until her mid-twenties, that she had been raped. She attempted to
bury the ordeal in the back of her mind, though she said that she had become
even more withdrawn a child than she had been before.

[13] In due course Belindie matriculated, and enlisted in the army.
Subsequently she joined the department of correctional services and worked in
various capacities, ultimately as a prison warder in a men’s prison. She married
Mr Albertus van Niekerk and they have one child, also named Belindie. She did
not tell Van Niekerk that she had been raped. She pretended, when they
married, that she was a virgin. In court she said that in doing this she had ‘lived
a lie’.

[14] When working as a prison warder Belindie suffered from depression. She
had difficulties with her superiors, and found it unpleasant to deal with rapists in
the prison. She consulted a psychiatrist and eventually confided in him that she
had been raped as a child. But she still told no one else. She was eventually
medically ‘boarded’ as a result of her depression.

[15] In February 2002 Belindie went to pick up her daughter who had been
visiting a friend. She encountered Cornick for the first time since January 1983,
and recognized him immediately. Although shaken she managed to speak to
the mother of her daughter’s friend, and discovered that she was Cornick’s
sister. She also spoke to the father of the friend about building a carport, before
leaving the house with her daughter.

[16] By the time she reached home she was hysterical as memories of her
ordeal in 1983 came flooding back to her. She had to explain her state to her
husband, and told him about the rapes in 1983. He was supportive and
empathetic. He took her to a police station and they tried to lay a charge. But
the officers on duty were unsympathetic and uncooperative. They left without
laying a charge and the following day, a Monday, Belindie was hospitalized
because of the emotional distress she was feeling as a result of the encounter
with Cornick.

[17] When she was discharged she ascertained where Cornick lived and his
phone number. How she ascertained it is disputed and I shall return to the issue
when considering her credibility. Belindie, in the presence of her husband then
phoned Cornick, who immediately knew who she was. She testified that she
had asked him whether he knew that he had raped her. He responded that he
did not deny it, but that it had happened years ago. When she told him that she
was going to lay a charge, he asked why she had not done it at the time. Her
husband corroborated this exchange.

[18] Shortly after the telephone conversation with Cornick, Belindie was
phoned by his sister, the mother of her daughter’s friend, who verbally abused
her and threatened her. Belindie nonetheless then laid a charge against the
appellants.

[19] Three other witnesses testified for the State: Belindie’s mother, Mrs Alida
Driedijk, Mrs Zelna Brown (formerly Albertyn), and Belindie’s husband, Mr
Albertus van Niekerk. Mrs Driedijk could add very little and her evidence was
not regarded as completely reliable by the trial court. But she did confirm that
Belindie had asked to be fetched earlier than arranged from her grandparents’
home in January 1983, and that Belindie was a quiet, withdrawn child. She was
hazy on where Belindie had gone to school and when, but she was adamant
about the period when Belindie had returned early from her grandparents’
home.  She testified that Louise had spent a weekend with Belindie in Parow,
and that she had not liked Louise. She told Belindie that Louise was not an
appropriate friend and that Belindie should end the friendship.

[20] Zelna confirmed that Belindie had told her that she had been hurt by
Raymond Cornick, and that Mark Cornick had been present, but could not recall
mention of Kinnear. She acknowledged that at the time of their conversation her
chief reaction to what Belindie had said was anger with Belindie for going to
Louise Meyer’s house. Louise, Zelna said, had a ‘bad reputation’, and she had
warned Belindie not to go there. She said that the appellants were friends of
hers and that she found it difficult to believe that they had raped Belindie.
However, she also admitted that as a young teenager she too had been naive
about sexual matters and might not have comprehended what Belindie was
telling her.

[21] Albertus van Niekerk confirmed that Belindie had not told him of the
multiple rapes until February 2002 when she returned home from fetching her
daughter. He slapped her to stop her hysteria. Subsequently he heard the
telephone conversation between her and Cornick, and confirmed what was
said. He also overheard the abusive and threatening call from Cornick’s sister.

[22] The appellants testified in their own defence.  They are cousins, and for
some time Cornick had lived in the Kinnear home. The cousins, including
Michael Kinnear, were good friends. Both denied that they had ever raped
Belindie. Yet both acknowledged that they had known her as a child in Kenwyn,
and had met her at Zelna’s home. Both recalled an evening when they had
gone to Louise Meyer’s home and met Belindie there.  They said that Michael,
Louise’s then boyfriend, had been with them as had Gary. (It is not clear
whether Gary is the same person to whom Belindie referred as Clive.)  But they
denied that Raymond Cornick, or a third girl, had been present. They claimed
simply to have sat in Louise’s bedroom and chatted. They both said that they
had left Louise’s house by the front door, as they had come in, thus denying
that they had climbed out of a window. And they insisted that this had happened
earlier than 1983:  they did not go out in the evenings during the week, they
said, because they were supposed to study for school exams. But they did not
explain why this would be so during a school holiday, which it was in January
1983. They also claimed that they had met Belindie several times at Zelna’s
house after they had encountered her at Louise’s home one evening. This

accords neither with Belindie’s evidence that she did not see them again after
January 1983, nor with Zelna’s evidence that she had not seen Belindie since
that time.

[23] The regional court, as I have said, found that Belindie was an entirely
credible witness.  Mindful of the fact that Belindie was a single witness to the
rapes, the regional magistrate looked for corroboration in the evidence of
Driedijk and Zelna, and examined the evidence of Belindie herself carefully,
finding no inconsistencies.  It is worth setting out in full her description of
Belindie as a witness.
‘The complainant to my mind, clearly testified about a very traumatic experience.
The evidence that she gave, the nature thereof and the charge is not only of a
traumatic experience, but it was quite clear that talking about it, even 20 years later,
made it no easier for the complainant. The Court adjourned on numerous occasions.
The complainant was crying, sobbing in court and I cannot agree with the defence’s
contention that this was antics or a show.
In fact it never appeared rehearsed or anything but genuine anguish. She was honest
about her own feelings of shame, embarrassment, feelings of having done something
wrong herself, feelings that at the end of the day fits in with what the court would
expect of a child at that stage, given her circumstances and that she was the victim of
rape.
She was completely honest about the fact that she lied to her grandparents and her
mom as to why she wanted to cut her holiday short. She was honest about it that she
destroyed the evidence, if one could call it that, the blood on her clothing. She was
honest that she never told her husband about this, that she pretended her virginity. She
was honest to say I probably would never have laid the charges if I did not run into
accused 1 and all the memories came flooding back.’
. . .
‘The Court also finds the complainant to be a credible witness. There were no
inconsistencies in the complainant’s version, but more importantly no improbabilities.’

[24] The appeal court considered this evaluation to be correct. Mitchell AJ
said that he was mindful that a trial court may have the advantage of seeing and
hearing the witnesses in court, but that it is nonetheless the duty of an appeal
court to consider the record of the proceedings in order to ascertain whether the
credibility findings are supported by the evidence or by the probabilities. A

credibility finding may well be held to be wrong.1 An examination of the record
persuaded the appeal court that the trial court had not erred in its assessment
of Belindie’s evidence.

[25] The appellants argue, however, that the regional court misdirected itself
in several respects. First, they contend that the learned magistrate made
findings of fact that are inconsistent with the evidence. So, for example, she did
not take into account the conflict between the evidence of Belindie, that she had
encountered Zelna once after she had left Kenwyn, and that of Zelna who said
that after January 1983 she had not seen Belindie again, until the trial. The
conflict does not relate to the facts in issue and is in my view immaterial.

[26] Secondly, Zelna’s evidence was that Belindie, when she told her of the
incident, had mentioned only Raymond Cornick and not Mark Cornick as an
assailant, although Belindie had mentioned his presence. She had not
mentioned Kinnear to Zelna, according to the appellants, although Belindie
testified that she had. As the learned regional magistrate found, these
discrepancies are insignificant in context. Both Belindie and Zelna were
testifying about a conversation held some 20 years previously. Moreover, Zelna
said that she could not remember mention of Kinnear: she did not deny that
mention was made of him. Zelna admitted that she had not fully comprehended
what Belindie was telling her at the time. She admitted also that her reaction to
what was said was one of anger towards Belindie for not heeding her advice
about Louise. It is thus not surprising that there are some inconsistencies in the
recounting of the conversation. This was the view too of the court below, and I
consider that the regional court did not misdirect itself on these questions of
fact. It correctly regarded Zelna’s evidence as corroborative at least of the fact
that Belindie had been sexually assaulted by Raymond Cornick in January
1983.

[27] Another misdirection argued for by the appellants is that Belindie, when
giving evidence on her reaction to seeing Cornick in 2002, said that she told her
husband that she had seen her ‘rapist’. Van Niekerk, on the other hand, testified

1  R v Dhlumayo 1948 (2) SA 677 (A); Munster Estates (Pty) Ltd v Killarney Hills (Pty) Ltd 1979
(1) SA  621(A) at 623H-624A);  Santam Bpk v Biddulph 2004 (5) SA 586 (SCA) para 5 and
Medscheme Holdings (Pty) Ltd v Bhamjee 2005 (5) SA 339 (SCA) para 14 .

that she said she had seen her ‘rapists’. The trial court did not take this
inconsistency into account. This complaint cannot be afforded any weight in the
light of the uncontested evidence of Belindie that she had seen only Cornick,
and had telephoned only him.

[28] The appellants argue further that the trial court misdirected itself when it
found that Zelna’s evidence corroborated that of Belindie when the latter said
that Louise had a bad reputation. In fact Belindie did not use those words. But
she did testify that Zelna had warned her not to go to Louise’s house. It is
reasonable to assume that Belindie knew of Zelna’s view of Louise. In the
context of the evidence the complaint is trivial and the finding certainly does not
amount to a misdirection.

[29] The appellants contend that the trial court misdirected itself in finding that
Belindie’s mother corroborated her evidence that Belindie would not, after
January 2003, visit her grandparents on her own. Belindie, however, testified
that she had visited them after school on occasions, taking the train to Kenwyn.
This is indeed an incorrect finding of fact, but again, it is of no significance and
is explicable by the 20 years that had lapsed between 1983 and the trial.
Belindie would probably have had a better recollection than did her mother, and
the error is of no relevance to the events at issue.

[30] There is only one respect in which I consider that Belindie’s evidence
was puzzling: this is her account of how she ascertained the telephone number
of Cornick. She testified that she had gone to a public phone and phoned the
directories enquiry number, 1023. She had been given both his telephone
number and his address. Much was made of this by the appellants’ attorney in
the trial court. Why use a public phone when she had a phone at home? And
why say that she was also given Cornick’s address when such information is
not given on the enquiries line? No good explanation for this was proffered.
She also testified that she had asked Cornick’s niece, her daughter’s friend, for
the address. But why do that when she already had it? The court below
considered that these implausible features were of a minor nature and did not
impact on Belindie’s credible account of the rapes. That is correct.

[31] Finally, and most importantly, the appellants argue that Belindie’s version
is improbable.   They contend that it was not possible for Belindie to have been
so inexperienced and naive as not to know about sex or not to realize (until in
her mid-twenties) that she had been raped. The story that she was raped in the
presence of her ‘friends’ without their intervening was also improbable, as was
the conduct of Louise’s mother in taking no note of an apparently hysterical girl.

[32] Yet Belindie gave plausible explanations for all these apparent
anomalies. She had been brought up by elderly and conservative grandparents.
They had never discussed matters of an intimate nature. She had a distant
relationship with her mother who had also not spoken to her ever about sex or
physiology. She had never had a boyfriend. It seems to me quite likely that in
these circumstances she did not realize what was happening to her when three
youths took turns forcibly to have sexual intercourse with her, despite her pleas
and protestations. She knew that she was being hurt, but she did not appreciate
that she was being raped. It does not seem to me improbable that a young
woman who has tried to bury memories of a traumatic event for many years
would not appreciate until her mid-twenties, at a time when discussion and
publicity about rape had become common, the full extent of what had happened
only later.

[33] The argument that it was improbable that none of Belindie’s friends came
to her rescue if her version were true is equally not convincing. It was Belindie’s
view that she had been ‘set up’ by her so-called friend, Louise. Indeed Zelna
confirmed that Belindie told her that Louise had instigated the attack on
Belindie, encouraged the youths, and urged them on. She did not know any of
the youths, although she had encountered three of them at Zelna’s house
previously, and she did not know the third girl. They were not friends and they
ignored her pleas. When Louise’s mother knocked on the door Louise had first
let the men escape through the window and only then opened the door. It may
be hard to understand the motives of the others given the vile manner in which
they behaved, but that does not make Belindie’s account of their conduct
improbable. They were on her version complicit in their friends’ conduct.

[34] Belindie’s account of Louise’s mother’s behaviour is also said to be
improbable.  Why would a mother who saw a hysterical girl, bleeding and in a
state of semi-undress, take no action? Belindie’s explanation is entirely
plausible.  Mrs Meyer stood at the door of Louise’s bedroom. The bed on which
Belindie sat was at the far end of the room. When she wanted to speak out
Louise kept her quiet by saying that Belindie wanted to go home. In any event,
Belindie was unable to speak because of her hysterical state. There appears to
be no reason why the mother would not accept such an explanation. And it is
likely that, standing at the door, she did not see the blood that Belindie said was
on her clothing and the bedlinen.  Moreover, why would Belindie fabricate the
appearance of Louise’s mother and her failure to speak out when this might
weigh against her?

[35] The appellants argue also that it is improbable, if the rapes occurred, that
Belindie would not have told her grandparents or her mother about the rapes.
They point out also that she gave various answers about why she had not laid
charges: that she could not tell anyone, that she did not know where the
appellants lived and that she did not know that she had been raped. However,
none of these is inconsistent with the others. In my view, Belindie’s explanation
is credible. She did not appreciate the magnitude of what had happened to her.
She did not realize that she had been raped. She knew only that something
terrible had happened to her, and felt in some way responsible, complicit. She
had let it happen and was therefore ashamed. The threat by Cornick the
following day exacerbated her feelings of shame and humiliation. She was not
in a position to discuss personal matters with her elderly and very conservative
grandparents. She also felt she could not tell her mother. Sex was not openly
spoken about in the community in which she lived. Rapes were not reported
and discussed daily by the media as they are now. The only people in whom
she could confide were friends, and she had spoken to two of them, though she
had not been explicit. The trial court and the court below accepted these
explanations, as do I. In my view it is highly likely that a young girl who goes to
sleep over at the home of a person against whom she had been warned, both
by a friend and her own mother, and then spends time in a locked bedroom with
five youths whom she barely knows, would believe that she was at fault. In her
naive mind Belindie had done wrong. The situation was partly of her own

making. She would clearly then not want to relate her ordeal to her mother or to
her conservative, strict grandparents.

[36] Related to the misdirections alleged is the appellants’ complaint that the
regional magistrate did not heed the cautionary rule. Counsel for the appellants
concedes that there is no longer a special cautionary rule relating to sexual
offences.  In S v J2 this court held that when evaluating the evidence of an
alleged victim in rape or sexual assault cases a court need do no more than
exercise the caution that is necessary when there is only one witness to the
offence alleged. But he argues that the trial court did not take into account
sufficiently that, because she was a single witness, Belindie’s account had to be
treated with particular care, especially in light of her history of depression. She
is argued to fit the ‘psychological profile’ of the complainant in S v F3 who was
disbelieved. I fail to see any analogy, for in that case the appellant admitted to
sexual intercourse with the complainant but claimed it was consensual. It is in
any event a decision that precedes that of this court in S v J4 and the finding
was made on the basis that the trial court had not heeded the cautionary rule
specific to sexual offences. The point that is sought to be made is that because
Belindie suffered from bouts of depression (the extent of which was not
established), she ‘deviated’ from the norm such that her evidence should be
treated with additional caution.   This submission is made without any factual
basis and thus must be rejected.

[37] In my view the trial court was very careful in assessing the evidence. The
regional magistrate expressly stated that it was incumbent on her to approach
Belindie’s evidence with caution. It is for this reason that she sought to find
corroboration in the evidence of other witnesses, such as Zelna and Van
Niekerk. She also found some of the evidence of the appellants to be
corroborative: thus, for example, they confirmed that Michael was Louise’s
boyfriend; that they had spent an evening at Louise’s house when Belindie was
present and that they had met Belindie at Zelna’s house previously. As the court
below found, the regional magistrate exercised all the caution that was required.

2 1998 (2) SA 984 (SCA).
3 1989 (3) SA 847 (A).
4 See also S v M 2006 (1) SACR 135 para 272.

[38] There is additional reason for rejecting the argument that Belindie’s
version was a fabrication. She was, as the trial court found, frank about having
lied to her mother about her stained clothes and the reason for her early return
to Parow, and to her husband about being a virgin. She was also frank about
her failure to say anything to Mrs Meyer when she came to find out about the
noise in Louise’s room. And, most significantly, she did not implicate Kinnear in
a second rape. If her version were a fabrication, why invent the appearance of
Mrs Meyer, and why not say that Kinnear too had raped her a second time? I
consider that these are features of a genuine and credible account of the
appellants’ conduct.

[39] It remains to consider whether the appellants’ versions, weighed against
Belindie’s credible account, were reasonably possibly true. They both denied
guilt. They both claimed that on the one evening when they had met Belindie at
Louise’s home they had done nothing more than chat to Louise and Belindie.
But neither could explain why Belindie, 19 years after the alleged rapes, had
laid a charge against them. It was put to Belindie that Louise and her mother
would deny her version. Yet neither was called. Nor were Michael and Gary
called although they were at court when the trial commenced and the attorney
appearing for the appellants put to Belindie that they would testify that nothing
had happened and that her account was a complete fabrication. Yet they did
not, in the end, testify. At the close of the defence case the attorney
representing the appellants said only that other witnesses were not available. Of
course it is not for the appellants to establish their innocence. And acceptance
of the State’s evidence does not in itself establish the guilt of an accused.5  But
there was a case for them to meet.

[40] Kinnear’s evidence as to his arrest is also of note. He testified that he
had received a telephone call from Cornick who had been arrested and asked
him to come to the police station where he was being held. Kinnear did not ask
why Cornick had been arrested: he simply drove to the station to ‘hand himself
over’. Why do that if he did not know that he too would be arrested and what the
probable charges were?  Moreover, when questioned by the regional

5 S v Van Aswegen 2001 (2) SACR 97 (SCA).

magistrate, Kinnear’s version of why he had gone to the police station and what
he had said was entirely different.

[41] The trial court was not impressed by the appellants. Their version of
events was scanty and they could not explain the improbability of Belindie
fabricating a complex story about their raping her some 19 years after the
offences were committed. Accepting that the evidence of Belindie was credible
and consistent, and corroborated in several respects, the appellant’s conflicting
version, unsupported by any evidence but their own, cannot stand. In S v Van
der Meyden6 Nugent J said
‘It is difficult to see how a defence can possibly be true if at the same time the State’s
case with which it is irreconcilable is “completely acceptable and unshaken”. [The
quotation is from S v Munyai,7 a case the learned judge said was to be regarded with
circumspection.] The passage seems to suggest that the evidence is to be separated
into compartments, and the “defence case” examined in isolation, to determine whether
it is so internally contradictory or improbable as to be beyond the realm of reasonable
possibility, failing which the accused is entitled to be acquitted. If that is what was
meant , it is not correct. A court does not base its conclusion, whether it be to convict or
to acquit, on only part of the evidence. The conclusion which it arrives at must account
for all the evidence. . . .
The proper test is that an accused is bound to be convicted if the evidence establishes
his guilt beyond reasonable doubt, and the logical corollary is that he must be acquitted
if it is reasonably possible that he might be innocent.’

[42] This is a case where the State evidence is so convincing that it excludes
the possibility that the appellants are innocent ‘no matter that [their] evidence
might suggest the contrary when viewed in isolation’.8 I consider that the State
proved the appellants’ guilt beyond reasonable doubt.

[43] I turn then to the appeals against the sentences imposed. Belindie gave
evidence in aggravation of sentence, repeating her testimony about the anguish
that she had suffered during and after the rapes, and the way in which her life
had been detrimentally affected. In cases such as these a heavy sentence is

6 1999 (1) SACR 447 (W) at 449f-450a, cited and approved in S v Van Aswegen at 101a-f.
7 1986 (4) SA 712 (V).
8 S v Van der Meyden above at 449d-e.

warranted. At the time of the rapes the jurisdiction of the regional court was
limited to the imposition of a maximum term of imprisonment of ten years.

[44] Sentencing in this matter is particularly difficult given that the appellants
were charged 19 years after they had committed the offences and convicted
more than a year later. Evidence was led, and reports handed in by a
correctional supervision officer, and by a clinical psychologist, which showed
that both appellants have led apparently exemplary lives since 1983. Both men
were 39 at the time of sentencing. They both have stable jobs, a regular
income, wives and children. They are regarded as decent people by the
communities in which they live.

[45] The trial court did take these factors into account in imposing sentence. It
also had regard to the fact that the appellants were only 18 at the time they
raped Belindie. But the regional magistrate considered that correctional
supervision in terms of s 276A(1) of the Criminal Procedure Act 51 of 1977 was
not appropriate despite the recommendation of the correctional supervision
officer. She considered that the punishment of the appellants should send a
serious message to the public about the horror of rape. She regarded it as
aggravating that the appellants showed no remorse; that they had taken
advantage of a girl whom they knew, and that Cornick had threatened her the
day after he had brutalized her. They had both raped her despite her pleas, her
suffering, her weeping. They took turns in participating in this savage conduct.
In the words of the regional magistrate, they were ‘cruel, callous and
contemptible’. Their savagery had an impact on the life of Belindie which cannot
be undone. The serious nature of the crime thus persuaded the trial court that
correctional supervision was not an appropriate sentence for either of the
appellants.

[46] In the absence of any misdirection on the part of the trial court an appeal
court should not interfere with the sentence imposed. In any event, in my view,
sentences of five years’ imprisonment for Cornick (who raped Belindie twice)
and four years’ imprisonment for Kinnear, are entirely appropriate. While there
is some cogency in the argument that men who have for twenty years led
decent lives should not be sent to prison, I consider that the extreme cruelty of

their behaviour warrants more than correctional supervision. Only direct
imprisonment is sufficiently serious to constitute a deterrent and retributive
sentence.

[47] The appeals of both appellants against both convictions and sentences
are dismissed.

C H Lewis
Judge of Appeal

Concur: Ponnan JA and Theron AJA
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

PRESS RELEASE

20 March 2007

STATUS: Immediate

C and K v The State
Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal

In January 1983 the appellants, then 18, participated in a gang rape of a 14 year old girl,
B. B, who was staying with her elderly and conservative grandparents in Kenwyn, Cape
Town, at the time, had gone to spend the night with a friend, L. There three youths
including the appellants had raped her despite the presence in the room of L and three
other teenagers. One of the youths had also threatened her with a knife. L had
encouraged the youths, and lied to her mother, who came to find out why B was crying
hysterically, about what was happening. B had not told her parents or her grandparents
about the gang rape: she had not appreciated what had actually happened to her and felt
ashamed and humiliated. She also felt complicit as she had been warned by another
friend, Z, not to go to L’s house, and B’s mother had asked her to end her friendship with
L. Indeed when she told Z about what had happened, Z’s reaction had been one of anger
with B for going to L‘s home when she had warned her against it.

B also did not tell her husband, when she married years later, about the rape. She
remained silent until she fortuitously encountered C at the home of his sister 19 years
later. The encounter revived memories of her ordeal and she became hysterical on her

return home. After telling her husband what had happened years previously, she broke
down and had to be hospitalized.  On her discharge she laid charges against the two
appellants.

C and K both pleaded not guilty to the two charges of rape laid against each of them. They
testified in the regional court, Wynberg, that although they had spent an evening with B at
L’s home about 20 years previously, nothing had happened. The regional magistrate
rejected their evidence. She found that B’s detailed, consistent account of what had
happened was entirely credible. She also accepted the explanations of B as to why she
had told no one but a friend, and she accepted that B had been naïve and ignorant of
sexual matters such that she had not appreciated that she had been raped until she was in
her mid-twenties.

C, who was convicted on two counts of rape, was sentenced to five years’ imprisonment.
K, who was convicted on one count, was sentenced to four years’ imprisonment. The trial
court considered that correctional supervision was not an appropriate sentence for either
of them, given the cruelty of their behaviour, and the impact that it had had on B’s life.

An appeal to the Cape High Court failed. The court considered that the appellants had
been rightly convicted and that the trial court had not misdirected itself in the imposition of
sentences.

The SCA today dismissed the further appeal against both convictions and sentences. It
found (per Lewis JA, Ponnan JA and Theron AJA concurring) that B’s evidence in the trial
had been consistent and credible, and was corroborated in various respects. She had
provided plausible explanations for her failure to tell her family about the rapes, and for
remaining silent for so many years. The court accepted her explanation that she had not
appreciated exactly what had happened to her, and that she had felt complicit because
she had disregarded warnings against L. It considered that the conflicting evidence of the
appellants could not be believed in the light of the compelling State case. The SCA also
regarded the sentences as appropriate and held that it could not in any event interfere in
the absence of a misdirection on the part of the trial court.

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