Recent Case: General principles and specific

• Jurisdiction: South Africa
• Citation: (2013) 26 SACJ 186
• Author: Shannon Hoctor
• Date: 16 August 2019
• Pages: 186-196
• Published date: 16 August 2019

RECENT CASES

General principles and

specic offences

SHANNON HOCTOR

University of KwaZulu-Natal

1. General principles

1.1 Consent

In S v SM 2013 (2) SACR 111 (SCA) the Supreme Court of Appeal was

required to hear an appeal relating to a conviction on charges of rape,

indecent assault and crimen injur ia f‌lowing from the appellant’s sexual

abuse of his adopted minor daughter. The facts were not in dispute,

and thus the appeal was conf‌ined to the following legal issues: whether

the complainant had consented to the acts in question, and whet her

the appellant believed that she had consented (putative consent).

The court carefu lly reviewed the facts of the case in order to

evaluate the merit of the consent defence. Having been abandoned by

her parents, the complainant had been fostered, and later adopted, by

the appellant, a senior pastor of a church, and his wife. At 14 years

of age, the complainant f‌irst became aware that the appella nt had

installed a hidden video ca mera to f‌ilm her whilst in t he bathroom.

The appellant then started to g room the complainant, giving her gif ts

and special privileges, before progressing to inappropriate touching,

sexual touching and ultimately sexu al intercourse, after the appellant

had plied her with liquor. The complainant denied that she consented

at any stage of this process, but contended that through fear, coercion

and, in respect of the intercourse, inebr iation, the appellant forced her

into acquiescence.

From this point the complainant did not resist the appellant ’s

sexual advances, believing that she had no choice but to accede to

his suggestions. When the fam ily came to know about the appellant’s

relationship with the complainant, she continued to do as the appellant

instructed, for fear of consequences for the fami ly or herself. The

appellant then involved the complainant in drug-fuelled sex ual activity

with a prostitute before she f‌inally broke away from the relationship

and reported all to her mother, and ultimately to the police.

186

(2013) 26 SACJ 186

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