Rex v Mosago and Another

• Jurisdiction: South Africa
• Judge: Wessels CJ, Curlewis JA, Beyers JA and De Villiers JA
• Judgment Date: 09 October 1934
• Citation: 1935 AD 32
• Hearing Date: 26 September 1934
• Court: Appellate Division

Rex Respondent v Mosago and Another Appellants
1935 AD 32

1935 AD p32

Citation	1935 AD 32
Court	Appellate Division
Judge	Wessels CJ, Curlewis JA, Beyers JA and De Villiers JA
Heard	September 26, 1934
Judgment	October 9, 1934

Flynote : Sleutelwoorde

Criminal law — Rape — Mens rea — Woman inducing reasonable belief that she consents — Justus error.

Headnote : Kopnota

The consent of a woman can be inferred from her acts, and if her acts induce the accused honestly to believe that she consents then he has no mens rea, and if he has connection with her he is not guilty of rape.

Quaere, whether in a case where, apart from any words or conduct of the complainant, the accused believes that the complainant consents, he may avail himself of the defence of justus error.

Case Information

Appeal on a question of law reserved by DE WET, J., presiding with a jury in the Transvaal Provincial Division. The facts appear from the judgment of WESSELS, C.J.

E. C. Niemeyer (with him A. H. Macintosh) for the accused: In common law crimes a reasonable and honest belief on the part of the accused constitutes in general a defence.

[WESSELS, C.J.: There is no need to quote authorities on that general proposition.]

As the Roman-Dutch authorities do not exclude rape from the operation of the general rule, it must be taken to apply. The old authorities specifically mention mistake of fact as a defence in the similar crimes of adultery and incest. See Matthaeus de Crim. p. 382; Voet 22.6.6; Code 5.5.4.

The English cases specifically mention a mistaken belief that the woman consented as constituting a defence to a charge of rape. See R v Mayers (12 Cox C.C. 311); R v Flattery (13 Cox C.C., per DENMAN, J., at p. 392); R v Young (14 Cox C.C. 114) and Dutch Penal Code arts. 242 and 243.

[WESSELS, C.J.: Russell in latest edition on Crimes does not refer to R v Young.]

A. A. Bain, for the Crown: The statement in R v Flattery (supra) which was followed subsequently in R v Huddleston, was only a dictum by DENMAN, J. As to ignorance or mistake see R v Prince (13 Cox C.C. 138) and R v Tolson (23 Q.B.D. 168 at p. 201), which was opposed to the dictum in R v Flattery. Gardiner and Lansdown on S.A. Criminal Law (3rd ed vol. 1, p. 30) particularly in regard to the position where the act was morally blameworthy. A mistake of fact is no defence if the act

1935 AD p33

is (a) morally blameworthy or (b) illegal even if in case of incest there is ignorance of the relationship. See R v Wallendorf (1920 AD 383 at pp. 397 and 406).

Cur adv vult.

Postea (October 9).

Judgment

Wessels, C.J.:

The two accused were charged together with two other natives with the crime of rape, in that on 21st January, 1934, near Pretoria they ravished a native girl Anna Molibale. They were tried before a judge and jury. Evidence was called in support of the charge. Anna Molibale, a nursegirl at the Mental Hospital, deposed that she met two natives (not the accused). They spoke to her, caught hold of her and led her to a spruit. There she saw eight people whom she did not know. They took off her bloomers and had connection with her forcibly. She could only identify three. These were not the accused. It was dark. She shouted and screamed. After this assault she went home and told her...