R v M

• Jurisdiction: South Africa
• Judge: van Den Heever JA, Hoexter JA and De Beer AJA
• Judgment Date: 16 September 1953
• Citation: 1953 (4) SA 393 (A)
• Hearing Date: 04 September 1953
• Court: Appellate Division

H Van den Heever, J.A.:

In the Eastern District Local Division before SAMPSON, J., and assessors appellant was convicted of rape and sentenced to two years' imprisonment with hard labour and six strokes, the corporal punishment being suspended for three years on conditions. With the leave of the trial Court appellant appealed against that conviction and sentence.

The complainant is an unmarried woman, T. N., 20 to 22 years

Van den Heever JA

of age. She is slightly taller than appellant; she is well built and her physical development is normal. Some three years ago she had a lover with whom she had a child. That lover left and now, she says, 'in fact I did not want any husband or any children'.

The appellant is a man of about 30 years of age, small of build, who had A a marked shortening of the left leg as the result of an old compound fracture which caused osteomyelitis and left him with a chronic discharging sinus. The doctor put it that 'he has got a very bad leg'.

According to complainant's evidence her employers had gone away for the B day on the 6th February, 1953, leaving her alone in charge of the house. She was working in the kitchen at the sink shortly before five o'clock in the afternoon when appellant entered and asked her for a tin to get some water. Whilst she was drawing water from the tap appellant caught her from behind, drew her arms backwards over her head, tripped C her so that she landed on her back, fell upon her and had full intercourse with her against her will. While she was resisting he got a chance to put his legs in between hers and so had connection.

From the perusal of the record one gets the impression that in itself D her story is an extremely improbable one. She was not in any way stunned, overawed or threatened. With one hand he held both her wrists above her head and with the other he pulled up her dresses notwithstanding her resistance, took out his penis and inserted it in her private parts. Since he was shorter in stature than she this E suggests a contortionist's feat. According to her evidence the appellant commenced his attack upon her by pulling her arms backwards over her shoulders and head and holding her hands in his one hand. Yet her dress got torn when he was trying to pull up her dresses and she was trying to pull them down. Appellant must either have used his injured F leg as a lever to part her legs or used it as a fulcrum while separating her legs with his sound leg. Her description of her resistance is unimpressive in the extreme. When asked what she did to show her unwillingness, the...