Case Review: Specific crimes

• Jurisdiction: South Africa
• Pages: 232-239
• Published date: 16 August 2019
• Citation: (2006) 19 SACJ 232
• Author: Shannon Hoctor
• Date: 16 August 2019

RECENT CASES

Specif‌i c crimes

SHANNON HOCTOR

University of KwaZulu-Natal

Rape

In S v Swartbooi 2006 JDR 0036 (C) the court was required to consider

an appeal against a rape conviction, on the grounds that the presiding

magistrate in the trial court had erred in holding that the complainant had

not consented to intercourse, and further had erred in not accepting that

the appellant had bona f‌i de believed that the complainant had consented

to sexual intercourse (at para [2]).

On the night in question the complainant had been drinking with two

friends, until she became so drunk that it was necessary for her friends

to carry her to another room where they left her on a bed. The friends

continued drinking, and later that evening discovered the appellant and

his co-accused having sexual intercourse with the complainant. The

complainant appeared to be entirely passive, and it was unclear whether

she was awake. When the complainant enquired the next day from her

friends what had happened to her, they informed her, but she could not

remember anything. The complainant fell pregnant as a result of the

intercourse.

Counsel for the appellant argued that lack of consent on the part of the

complainant was not the only reasonable inference that could be drawn

from the facts of the case, and that it could be that the complainant had in

fact agreed to intercourse in her drunken state, or that the appellant bona

f‌i de believed that the complainant had consented to intercourse because

she did not resist (at para [8]). In either event, it was argued that the

appellant should receive the benef‌i t of the doubt.

The court (per Goso AJ, Dlodlo J concurring) held that although the

complainant had not offered resistance, this could be explained by the fact

that she had not been awake at the time of the intercourse (at para [14]):

‘In my view lack of resistance on the part of the complainant in the circumstances

of the present case due to a state of drunkenness is to be distinguished from

mere acquiescence. The former cannot be equated with consent for purposes

of establishing whether the complainant was raped or not. Explicit opposition

232

(2006) 19 SACJ 232

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