LEV3701 Assignment 2 (COMPLETE
ANSWERS) Semester 1 2026 - DUE 9
April 2026
For Further assistance contact
Email:
,Question 1: The Admissibility of Cross-Examination on Identity and Sexual History, and
the Calling of Witnesses
The scenario before us presents a quintessential tension within the law of criminal procedure: the
constitutional right of an accused to a fair trial, which includes the right to challenge evidence
and present a defence, versus the State’s duty to protect the dignity and privacy of a complainant
in a sexual offences case. The resolution of this tension is governed by the Criminal Procedure
Act 51 of 1977 (the CPA), particularly the provisions of section 227, as well as binding case law
from the Supreme Court of Appeal and the Constitutional Court. As the presiding officer in this
trial, I would be required to scrutinise each line of questioning and each proposed witness with
exacting care, balancing the interests of justice with the fundamental rights enshrined in the
Constitution.
The Framework of Section 227 of the Criminal Procedure Act 51 of 1977
The primary legislative mechanism governing this scenario is section 227 of the CPA. It serves
as South Africa’s "rape shield" provision. Its purpose is twofold: primarily, to prevent irrelevant
and prejudicial information from being admitted as evidence, and secondarily, to protect
complainants from secondary victimisation during the trial process. The historical rationale for
such a shield is rooted in the recognition that, prior to its enactment, complainants were often
subjected to invasive and humiliating cross-examinations about their sexual history that had no
logical bearing on the facts of the case but served only to stereotype and discredit the witness.
Section 227(2) is the operative sub-section. It provides that in criminal proceedings involving a
sexual offence, no evidence may be adduced, and no cross-examination may be conducted,
regarding the sexual experience of the complainant "save with the leave of the court."
Furthermore, the court may only grant such leave if it is satisfied that such evidence or
questioning is "relevant to the issue before the court" and that it is "in the interests of justice" to
permit it.
I will now apply this framework to the two distinct lines of attack pursued by the accused.
1. Cross-Examination Regarding the Complainant’s Ability to Observe the Assailant
The accused puts it to the complainant that she could not have identified him because there was
no moon and no lights on that part of the campus. On the surface, this line of questioning is not
, merely permissible; it is essential. An accused person has the constitutional right to challenge the
evidence led against him. The complainant’s identification of the accused is the *sine qua non*
of the State’s case. Without reliable identification, there can be no conviction.
The questions regarding ambient lighting, the presence of the moon, and the complainant’s
visual acuity are all directed squarely at the *probative value* of the complainant’s testimony.
They are designed to test the reliability of her observation, not to attack her character. This is the
very essence of legitimate cross-examination. The Supreme Court of Appeal has consistently
held that evidence relevant to an issue in the trial is likely to be admitted, as excluding it would
prevent the court from hearing something that might cause it to change its mind about the
evidence.
Therefore, I would allow the cross-examination regarding the poor lighting conditions and the
complainant’s ability to observe the assailant’s identity. No application under section 227 is
required for this line of questioning because it pertains to the *circumstances of the offence* and
the complainant’s sensory perception, not to her "sexual experience" or private life. It is a direct
attack on the reliability of the identification evidence, which is a central issue in the trial.
2. Cross-Examination Regarding the Complainant’s Sexual Relations with Other Men
This is a significantly more complex issue. The accused seeks to cross-examine the complainant
about her sexual relations with "various other men." The stated purpose appears to be to impugn
her credibility—to suggest that because she has had sexual relations with others, she is more
likely to be lying about this specific incident or that she is more likely to have consented. At
common law and prior to the enactment of section 227, such questioning was often permitted,
leading to grave injustices.
Under the current statutory framework, I would be required to refuse this line of questioning
unless the accused can satisfy the court on two grounds: relevance and the interests of justice.
a) Relevance to an Issue in the Case
The first hurdle is whether this evidence is relevant to an issue before the court. The accused has
pleaded not guilty. The material issues are: (i) whether sexual intercourse occurred (likely
conceded or proven by other evidence), (ii) whether it occurred without the complainant’s
consent, and (iii) whether the accused was the perpetrator. The mere fact that a complainant has
ANSWERS) Semester 1 2026 - DUE 9
April 2026
For Further assistance contact
Email:
,Question 1: The Admissibility of Cross-Examination on Identity and Sexual History, and
the Calling of Witnesses
The scenario before us presents a quintessential tension within the law of criminal procedure: the
constitutional right of an accused to a fair trial, which includes the right to challenge evidence
and present a defence, versus the State’s duty to protect the dignity and privacy of a complainant
in a sexual offences case. The resolution of this tension is governed by the Criminal Procedure
Act 51 of 1977 (the CPA), particularly the provisions of section 227, as well as binding case law
from the Supreme Court of Appeal and the Constitutional Court. As the presiding officer in this
trial, I would be required to scrutinise each line of questioning and each proposed witness with
exacting care, balancing the interests of justice with the fundamental rights enshrined in the
Constitution.
The Framework of Section 227 of the Criminal Procedure Act 51 of 1977
The primary legislative mechanism governing this scenario is section 227 of the CPA. It serves
as South Africa’s "rape shield" provision. Its purpose is twofold: primarily, to prevent irrelevant
and prejudicial information from being admitted as evidence, and secondarily, to protect
complainants from secondary victimisation during the trial process. The historical rationale for
such a shield is rooted in the recognition that, prior to its enactment, complainants were often
subjected to invasive and humiliating cross-examinations about their sexual history that had no
logical bearing on the facts of the case but served only to stereotype and discredit the witness.
Section 227(2) is the operative sub-section. It provides that in criminal proceedings involving a
sexual offence, no evidence may be adduced, and no cross-examination may be conducted,
regarding the sexual experience of the complainant "save with the leave of the court."
Furthermore, the court may only grant such leave if it is satisfied that such evidence or
questioning is "relevant to the issue before the court" and that it is "in the interests of justice" to
permit it.
I will now apply this framework to the two distinct lines of attack pursued by the accused.
1. Cross-Examination Regarding the Complainant’s Ability to Observe the Assailant
The accused puts it to the complainant that she could not have identified him because there was
no moon and no lights on that part of the campus. On the surface, this line of questioning is not
, merely permissible; it is essential. An accused person has the constitutional right to challenge the
evidence led against him. The complainant’s identification of the accused is the *sine qua non*
of the State’s case. Without reliable identification, there can be no conviction.
The questions regarding ambient lighting, the presence of the moon, and the complainant’s
visual acuity are all directed squarely at the *probative value* of the complainant’s testimony.
They are designed to test the reliability of her observation, not to attack her character. This is the
very essence of legitimate cross-examination. The Supreme Court of Appeal has consistently
held that evidence relevant to an issue in the trial is likely to be admitted, as excluding it would
prevent the court from hearing something that might cause it to change its mind about the
evidence.
Therefore, I would allow the cross-examination regarding the poor lighting conditions and the
complainant’s ability to observe the assailant’s identity. No application under section 227 is
required for this line of questioning because it pertains to the *circumstances of the offence* and
the complainant’s sensory perception, not to her "sexual experience" or private life. It is a direct
attack on the reliability of the identification evidence, which is a central issue in the trial.
2. Cross-Examination Regarding the Complainant’s Sexual Relations with Other Men
This is a significantly more complex issue. The accused seeks to cross-examine the complainant
about her sexual relations with "various other men." The stated purpose appears to be to impugn
her credibility—to suggest that because she has had sexual relations with others, she is more
likely to be lying about this specific incident or that she is more likely to have consented. At
common law and prior to the enactment of section 227, such questioning was often permitted,
leading to grave injustices.
Under the current statutory framework, I would be required to refuse this line of questioning
unless the accused can satisfy the court on two grounds: relevance and the interests of justice.
a) Relevance to an Issue in the Case
The first hurdle is whether this evidence is relevant to an issue before the court. The accused has
pleaded not guilty. The material issues are: (i) whether sexual intercourse occurred (likely
conceded or proven by other evidence), (ii) whether it occurred without the complainant’s
consent, and (iii) whether the accused was the perpetrator. The mere fact that a complainant has
