R v K

• Jurisdiction: South Africa
• Judgment Date: 05 June 1958
• Citation: 1958 (3) SA 420 (A)

R v K
1958 (3) SA 420 (A)

1958 (3) SA p420

Citation	1958 (3) SA 420 (A)
Court	Appellate Division
Judge	Schreiner JA, Steyn JA, Malan JA, Van Blerk JA and Reynolds AJA
Heard	May 6, 1958
Judgment	June 5, 1958

Flynote : Sleutelwoorde E

Criminal law — Rape — What amounts to — Complainant under influence of liquor.

Headnote : Kopnota

The Court set aside a conviction of rape where the evidence showed that the complainant was untruthful and it was not possible to say beyond reasonable doubt whether in her condition, brought about by the liquor she had consumed, she possessed sufficient understanding to be able to F consent to intercourse, or whether she was able to and did convey her consent to the appellant in such a way as to lead him to think that she was mentally fit to consent.

Case Information

Appeal from a conviction on a charge of rape. Facts not material to this report have been omitted.

E. Morris, for the appellant: The trial Court devoted the greater portion of its judgment to an analysis, criticism and rejection of appellant's evidence and from that rejection drew the inference that the complainant had not consented, relying also upon other inadequate H evidence. In this approach the trial Court erred; see R v Macaba, 1939 AD at pp. 67 - 8, 70. As to complainant's evidence that she was suffering amnesia at the time, there are so many indications of improbability in this story that she ought to have been found untruthful; cf. R v Oosthuizen, (A.D. March 1954 (not reported)). Had the trial Court given due weight to the untruthfulness of the complainant, the inadequacy of the supporting evidence as to intoxication and the factors showing that complainant was able to perform voluntary acts, G

1958 (3) SA p421

it would, at least, have had a reasonable doubt on the issue of consent; see R v M., 1953 (4) SA at p. 398.

J. Smeath Thomas, for the Crown: On the evidence, the liquor consumed by complainant was such as to render her insensible and to deprive her of her power over her will. Appellant knew that prior to falling into that A condition, she was averse from having intercourse with him. Appellant therefore committed rape in taking advantage of her condition and having intercourse with her; see R v Camplin, 169 E.R. at p. 164. There is ample corroboration of complainant's version in its crucial aspects and on those issues the trial Court found correctly in her favour. This B Court will be slow to interfere with the trial Court's findings; see R v Dhlumayo and Another, 1948 (2) SA 677. In the circumstances the fact that she made only an incomplete report to her mother is understandable. At the proper time she commenced a complaint and then relapsed into an hysterical condition. The report is therefore admissible; see R v Gannon, 1906 T.S. 114. As to the sentence imposed, C no wrong principle was applied by the trial Court nor did it exercise its discretion improperly. This Court will therefore not order the reduction of the sentence; see R v Ramanka, 1949 (1) SA at pp. 419 - 20.

Morris, in reply.

Cur adv vult.

Postea (June 5th). D

Judgment

Schreiner, J.A.:

I have had the opportunity of reading the judgment of E my Brother STEYN and I agree with his conclusion and in general with his reasons for reaching it. I find it difficult, however, to fix any more precise legal test of when a person who has connection with a drunken woman is guilty of rape than the one to be extracted from the language of the established definition of rape. The offence consists in having connection with a woman, other than the man's wife, without her F consent, from which it follows that if the Crown proves that there was no consent, and also, of course, that the accused knew this, it has established his guilt. In the ordinary kind of case the absence of consent is proved by the complainant's evidence that she did not consent, supported by proof that her will was overborne by force or by G such a threat of force as produced submission but not consent. In such cases the complainant is in possession of her faculties and even when she submits she normally leaves the accused in no doubt that she is unwilling. The position is more difficult in cases where the woman has been defrauded into consenting and more difficult still when her mind is affected not by the accused's threats or fraud but by a pre-existent H disability, such as that produced by mental disease, hypnosis, drugs or intoxicating liquor. In such cases there may be, and in the case of intoxication there certainly is, a wide range of degrees of disability. At the one end of the scale, if the woman is insensible from any cause she clearly cannot be a consenting party, nor is it easy to see how the impression could arise that she was consenting. At the

1958 (3) SA p422

Steyn AR

other end of the scale is the case where the woman is only slightly affected by liquor. It may be that her judgment, moral as well as intellectual, is in a measure impaired, but it would be going too far to say in such cases that, although by words or conduct she could convey A the impression of consent, such impression was really false, and consent must be taken to have been absent. It is no doubt reprehensible for a man to have connection with a woman if he has reason to think that her consent to intercourse is in any degree the result of her having taken intoxicants, and it is certainly more reprehensible if he has induced B her to take the intoxicants with the object of making her more pliant...