THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

CASE NO: 244/04
Not Reportable

In the matter between

HENZEN WILSNACH DE KOCK

Appellant

AND

THE STATE

Respondent

Coram:
Mthiyane, Lewis, Heher JJA

Heard:
21 February 2005

Delivered: 18 March 2005

Summary   Credible and reliable evidence of indecent assault and assault
constitutes prima facie proof of guilt which calls for an answer: appeal against
conviction for indecent assault, and sentence in respect of assault, dismissed.

JUDGMENT

LEWIS JA

[1] The appellant was charged and convicted in the Regional
Court, Upington on two counts – indecent assault, and assault. He
was sentenced to eight years’ imprisonment on the charge of
indecent assault, and to two years’ imprisonment on the charge of
assault. Both sentences were ordered to run concurrently. In an
appeal to the High Court (Northern Cape) the convictions were
confirmed, as was the sentence for indecent assault, but the
sentence for the assault was reduced to six months’ imprisonment.
The appeal to this court against the conviction on the first count,
and against the sentence on the second count, lies with the leave
of the High Court.

[2] In his plea explanation in terms of s 115 of the Criminal
Procedure Act 51 of 1977 the appellant denied guilt on both
charges. But on the charge of assault with intent to do grievous
bodily harm he admitted that he had assaulted the complainant
with a ‘plastiek pyp’, thus admitting that he was guilty of common
assault. Consequently there is no appeal against the conviction on
the second count. The charge sheet itself mentioned assault with a
‘plastiek pyp’ only, despite the fact that in his statement to the

police, made the day after the assaults, the complainant had
indicated that he had been assaulted with various other
implements as well.

[3] In the appeal before us, the essence of the appellant’s attack
on the conviction on the charge of indecent assault is that the
complainant was not a credible witness in so far as the second
charge of assault was concerned. He had, it was argued, grossly
exaggerated the extent of that assault, and there were
contradictions in his evidence, such that his account of the
indecent assault was also to be disbelieved. The state, had not,
argued the appellant, established a prima facie case against him,
and accordingly there was no case to answer – this despite a
doctor’s evidence in which he confirmed the contemporaneous J
88 report prepared by him on examining the complainant the day
after the alleged assaults. Both that statement and the evidence of
the doctor were consistent with that of the complainant, but the
appellant argues that there were shortcomings in the medical
examination. The argument is thus that the defects in the
complainant’s evidence and the deficiencies in the doctor’s
examination were such as to justify the appellant’s failure to testify.
There was thus, it was contended, no prima facie case to meet. I

shall deal with the argument in this regard after briefly setting out
the relevant portions of the evidence.

[4] The complainant, the doctor who examined him, Dr Meyer,
and another employee of the appellant, Mr Rodgers Mohlai,
testified for the state. A forensic pathologist, Dr Wagner, was the
only witness for the appellant. The appellant did not testify in his
own defence.

[5] The evidence of the complainant, borne out almost
completely by the statement made by him to the police the day
after the assault, was to the following effect. He was employed as
a labourer by the appellant on a farm in Kakamas. The appellant
had requested him to assist with building work on the farm on
Saturday 10 March 2001. He had commenced work in the
morning, sifting sand. The appellant had plied him with alcohol
throughout the course of the morning. He had been given, and had
drunk, first some nameless spirit, then six small bottles of beer
(‘dumpies’), and then brandy. The appellant had also drunk the
same quantity of beer. Not surprisingly, after a while the
complainant felt unable to work and asked if he could go back to
the compound where he lived. The appellant suggested instead

that he just lie on the lawn next to his house and sleep. The
complainant did so.

[6] A while later the appellant woke him up and asked him to
assist with some work in a storeroom some 30 to 40 metres away
from the appellant’s house. They went to the storeroom together.
The appellant closed the door. There the appellant grabbed the
complainant by the neck and ordered him to pull down his shorts
and underpants. The complainant refused but his shorts and
underpants were forcibly taken off by the appellant, leaving him
clad only in a T-shirt. The appellant then forced him to bend over a
barrel and, against the complainant’s will, penetrated his anus with
his penis. The complainant testified that this went on for some
time: the appellant was sweating and the complainant experienced
much pain. He pleaded with the appellant to stop.  Eventually the
appellant turned the complainant over, grabbed his penis and
ejaculated on the complainant’s stomach.  He then left the
storeroom, locking the door behind him. The complainant lay on
the floor naked but for his T-shirt.

[7] Later in the day, at about 13h00, the appellant appeared in
the storeroom with another employee, Mr Mohlai, and told the

latter to look at a man who had said that he did not easily get
drunk.  The complainant testified that Mohlai had told him to put
his clothes on. Mohlai gave evidence for the state and confirmed
that he had looked at the complainant in the storeroom, and had
seen that he was naked. He denied, however, that he had told the
complainant to put his clothes on, saying that he assumed that he
was lying on the floor naked because he was drunk.  Mohlai had
then left the storeroom.

[8] The complainant told the appellant that he was going to lay a
charge against him. In response, the appellant took the
complainant to a garage on the property and  accused him of
stealing various items. He locked him in the garage and then
called another employee, Thys, and his wife, Maria, to the garage,
where, testified the complainant, the three of them assaulted him.
The appellant hit him with a ‘kabel’ (presumably the plastic pipe
referred to in the charge sheet), and Maria had hit him with a
wooden plank. He had also been hit with a wire brush. Under cross
examination the complainant claimed also to have been struck with
an ‘yster’ (possibly the same wire brush or a pipe) and punched
and kicked.

[9] Counsel for the appellant submitted that the inconsistencies
in the complainant’s account of the assault, and the fact that the
charge sheet had mentioned only an assault with a plastic pipe,
indicated that the complainant was an unreliable and untruthful
witness. I shall return to the alleged contradictions later. But at this
stage I reject the appellant’s submission that the failure to describe
the assault more fully in the charge sheet can be attributed to the
untruthfulness of the complainant. The very fact that the statement
made by him to the police the day after the assault was far more
detailed about the nature of the assault shows that the suggestion
is unwarranted.

[10] The complainant fell asleep after the assault on him, and
was woken by police whom the appellant had called. There was of
course no evidence as to why the police had been summoned
since the appellant did not testify. The complainant was taken to
the local police station and kept there overnight. He did not lay any
charges at that stage, but did ask to be taken to a doctor. He was
in pain from both the indecent assault and the beatings. His anus
had bled a great deal and he experienced  difficulty walking, he
testified.

[11] The following morning, Sunday 11 March, he had been taken
by the police to see Dr J H Meyer in Kakamas. The report of Dr
Meyer (the J 88 form) is consistent with the complainant’s account
of the indecent assault and the other assault.  Although he did not
examine the complainant’s trousers or underpants (for which no
explanation was given) he did note that there were blood stains on
his shirt.

[12] He noted also cuts on the face, grazes on the shoulder, the
calf, grazes and bruising on his back, and marks consistent with
being assaulted with ‘’n elektriese of ander draad’. There were cuts
and swelling on his left hip, bruising on his chest and injury to his
left tibia. The back of the complainant’s head was also injured.

[13] Meyer’s examination of the complainant’s anus is consistent
with the latter’s evidence. He noted two tears on the skin, variously
described as ‘skeure’ and ‘velonderbrekings’ (and as ‘skeurkies’
when being cross-examined), and noted their sizes. He also noted
that there was dry blood in the region of the anus. In giving
evidence Dr Meyer confirmed his report and said that he believed
the anal injuries to be consistent with penetration or at least an
attempt at penetration of the complainant’s anus.

[14] Under cross examination Dr Meyer conceded that he had
done no internal examination, nor taken any samples. He had not
followed the general procedures normally undertaken when a
sexual assault was alleged. Nor had he noticed that the
complainant had walked with difficulty. Much was made of these
shortcomings by the only witness for the defence, a forensic
pathologist, Dr L Wagner. Again, this is an issue to which I shall
revert.

[15] After the examination by Meyer, the complainant made a
statement to the police through an interpreter. It is largely
consistent with the evidence given in court. Charges were then laid
against the appellant.

[16] Dr Wagner was the only witness for the defence. His
testimony consisted in the main of a lecture on how an ideal
examination would be carried out by a doctor following a charge of
rape. It had little bearing on the complainant’s condition and
indeed Wagner had never examined him, although he had listened
to the evidence of the complainant and Dr Meyer. Although
Wagner attempted to suggest that penetration could not have

taken place in the position described by the complainant (while he
was bent over a raisin barrel) he had to concede that he could not
exclude the possibility that, given the injuries described by Meyer,
the appellant might have penetrated the anus of the complainant.

[17] The essential question before this court is whether the state
had established a prima facie case against the appellant that
necessitated an explanation. While an accused has the right to
remain silent, a right now also entrenched in the Constitution,
where the evidence for the state is such that it calls for an answer,
and none is forthcoming, the state’s case will be found proved
beyond a reasonable doubt. The classic statement of this principle
is to be found in S v Mthetwa 1972 (3) SA 766 (A) at 769D-F, per
Holmes JA:
‘Where . . .  there is direct prima facie evidence implicating the accused in the
commission of the offence, his failure to give evidence, whatever his reason
may be for such failure, in general ipso facto tends to strengthen the State’s
case, because there is then nothing to gainsay it, and therefore less reason
for doubting its credibility or reliability; . . .’

[18] This statement was adopted by this court in S v Chabalala
2003 (1) SACR 134 (SCA) at 142e-f, where Heher AJA pointed out

that the principle was consistent with ‘the constitutional position
elucidated’ in para 22 of Osman v Attorney-General, Transvaal
1998 (2) SACR 493 (CC); 1998 (4) SA 1224 (CC) at 1232 and S v
Boesak 2001 (1) SACR 1 (CC); 2001 (1) SA 912 para 24. In
Chabalala, said Heher AJA, the appellant had been faced with
direct and credible evidence which made him ‘the prime mover in
the offence’, and that his failure to face the challenge raised by the
evidence was damning.

[19] In Osman Madala J said (para 22):
‘Our legal system is an adversarial one. Once the prosecution has produced
evidence sufficient to establish a prima facie case, an accused who fails to
produce evidence to rebut that case is at risk. The failure to testify does not
relieve the prosecution of its duty to prove guilt beyond reasonable doubt. An
accused, however, always runs the risk that absent any rebuttal, the
prosecution’s case may be sufficient to prove the elements of the offence. The
fact that an accused has to make such an election is not a breach of the right
to silence. If the right to silence were to be so interpreted, it would destroy the
fundamental nature of our adversarial system of criminal justice.’
And in  Boesak Langa DJP said (para 24):
‘The fact that an accused person is under no obligation to testify does not
mean that are no consequences attaching to a decision to remain silent
during the trial. If there is evidence calling for an answer, and an accused

person chooses to remain silent in the face of such evidence, a court may well
be entitled to conclude that the evidence is sufficient in the absence of an
explanation to prove the guilt of the accused. Whether such a conclusion is
justified will depend on the weight of the evidence.’

[20] It is the appellant’s contention, as I have indicated, that the
evidence presented by the state is not such as to establish a prima
facie case, and that there is thus no reason for the appellant to
provide any answer. The only basis for that contention is that the
complainant was not a consistent, satisfactory witness. It was
submitted that he had exaggerated the extent of the assault on him
by the appellant and Thys and Maria, and that he had described
that assault somewhat differently in evidence-in-chief and in cross-
examination. Moreover, it was argued, his evidence as to what
was said when Mothlai came to see him and that of Mothlai was
not entirely consonant, as indicated previously. A further
inconsistency relied upon related to whether the door to the
storeroom had been locked. The complainant said it had been.
Mothlai said it was not. In my view nothing turns on this.

[21] All the discrepancies alluded to by the appellant are of a
trivial nature, and can be explained to a considerable extent by the

fact that when the complainant was assaulted he had been very
drunk (for which the appellant was responsible) and his
recollection was understandably affected by that. More importantly,
the complainant’s evidence was corroborated by that of Dr Meyer.
The likelihood of anal penetration was confirmed by Meyer. The
account of the assaults with a cable or plastic pipe, with a wire
brush, with a plank and with fists are consistent with the injuries
noted by Meyer the day after the assaults. The fact that Meyer did
not notice that the complainant’s underpants were soaked with
blood (as the complainant had said), could be explained by several
factors: that he had not taken note of the underpants or the
complainant’s trousers at all; that the examination occurred a day
after the indecent assault; that the complainant (as he had
testified) might have cleaned himself and his pants. None of this
was put to Meyer. The fact is that Meyer found dried blood in the
region of the complainant’s anus, and injuries consistent with
penetration.

[22] The trial court did not regard the complainant as untruthful
although it accepted that he had not been an entirely satisfactory
witness. The court said:

‘Hy was aan volledige kruisondervraging onderwerp, en daar kan nie sover dit
hierdie Hof aanbetref, gesê word dat daar op enige wyse afbreek aan sy
getuienis gedoen is, sodat hy as ongeloofwaardig aangemerk kan word nie.’
That is borne out by the record of the evidence. The court also
took into account the fact that the complainant is an
unsophisticated man with little education. That he had not
apparently mentioned in his statement, as he had done in his
evidence, that he had been kicked and punched, is explicable on
the basis that he made the statement through an interpreter, and
that he had not been able to read it, nor was it read, and
translated, to him. Any omissions or inaccuracies would inevitably
have gone unnoticed by him. It is clear that the magistrate was
alive to these apparent discrepancies in the evidence but did not
consider that they detracted from his reliability or credibility. It is as
well to remind oneself that an appellate court will not ordinarily
interfere with the findings of fact by a trial court in the absence of
misdirection. (See Rex v Dhlumayo 1948 (2) 677 (A) at 698.)
None has been shown to have occurred in the present case and
any invitation to interfere with the factual findings by the magistrate
must accordingly be declined.

[23] The complainant’s evidence, his statement to the police the
day after the assaults, and the evidence of Dr Meyer called out for
an explanation. In my view, the state established a strong prima
facie case of indecent assault and the appellant’s failure to answer
it is damning. I find that the cumulative effect of the evidence
presented by the state proves beyond reasonable doubt that the
appellant did indecently assault the complainant. I consider it
appropriate to add that were the common law to be changed, as
indeed it should be, such that forced penetration of a man were to
be regarded as rape, the appellant would have been charged with
and convicted of rape. The question was not argued before us,
and since it would be germane particularly to the sentence, against
which there is no appeal, I shall not deal with it further.

[24] In so far as the appeal against the sentence in respect of the
second count – assault – is concerned, my view is that it is without
any merit. Six months’ imprisonment for an assault committed in
the most humiliating of circumstances is, if anything, rather lenient.
It is to be recalled that the appellant, who as the complainant’s
employer was in a position of power, had first plied the
complainant with alcohol; then indecently assaulted him, leaving
him to sleep naked on a floor; then falsely accused him of theft,

and then called in other people to assist in a brutal assault which
resulted in the injuries described by Dr Meyer.

[25] In the result the appeal against conviction on the charge of
indecent assault is dismissed; and the appeal against sentence in
respect of the charge of assault is dismissed.

____________
C H Lewis
Judge of Appeal

Concur: Mthiyane JA
Heher JA