S v H

• Jurisdiction: South Africa
• Judge: Van Heerden J and Nienaber J
• Judgment Date: 28 February 1985
• Citation: 1985 (2) SA 750 (N)
• Hearing Date: 12 February 1985
• Court: Natal Provincial Division

Nienaber J:

A husband cannot be convicted of raping his wife. That is said to be the law of the land. And if this is so, it was argued on behalf of the appellant in this case, he can likewise not be guilty of an assault on his wife if he uses physical force in order to have sexual intercourse with her against her will. Such force is part of rape or attempted rape. C What is condoned for purposes of rape cannot be condemned for purposes of the lesser offence of assault. Is that proposition sound? That is the issue in this appeal.

The appellant was charged with indecent assault:

"in that upon or about 16 November 1983 at or near Durban, the D said accused did wrongfully, unlawfully, indecently and lasciviously assault WH by throwing her to the floor and removing her shorts and panties, while holding her down".

He pleaded not guilty but was convicted, not of indecent assault, but of common assault, and sentenced to 60 days' imprisonment suspended for two years on appropriate conditions. E This is an appeal against his conviction.

There is general agreement about the broad outline of events - the differences concern detail and shading. The appellant and the complainant, it is common cause, had been married for some four years when the incident took place, although they F were living apart at the time and the complainant had commenced divorce proceedings against the appellant. On the day in question the complainant accompanied the appellant on a shopping expedition. They returned to her flat. The appellant made advances to her. She repulsed them and attempted to evade him. He persisted. She threatened that she would have him charged with rape. The appellant accused her of having a lover G and pressed her for his name. She yelled and warned him that the police would arrive. The appellant tried to stifle her scream by putting his hand over her mouth. She landed on the floor near the front door of the flat. He removed her trousers and panties and lay on top of her. She was, however, able to H divert him by a ruse and made good her escape. The police then arrived. The complainant accused the appellant of attempting to rape her. None of that is in dispute.

The complainant's version is that she managed to ask a neighbour, who was alerted by her screams and came to the door, to call the police. This happened while the appellant was I elsewhere for a moment. Afterwards he threw her on the floor, put a foot on her chest and ripped off her clothing. She screamed again and kicked at him, injuring her toes.

According to the appellant, on the other hand, the complainant was agreeable to sexual intercourse. When she uttered a scream and threatened him with rape and the police, he thought that she was joking and trying to prolong foreplay. She slipped on J to the floor when he tried to

Nienaber J

A pick her up. According to the appellant she only became agitated when he started enquiring about her lover. Nevertheless she responded to his caresses and co-operated fully when he removed her trousers and panties.

The magistrate, rightly in my opinion, rejected the appellant's version. It is riddled with vast improbabilities. If the B complainant was so amenable to the appellant's attentions as he claimed, why did she refuse intercourse initially? Why did she suddenly yell? Why threaten him with rape and the police? Why complain to the police and rush to see her attorney afterwards? The explanation advanced by the appellant that this was part of a carefully conceived conspiracy to fabricate C material to be used against him in the dispute between them about his rights of access to their child is, to say the least, far fetched. Counsel for the appellant sensibly did not challenge the magistrate's finding on credibility. The matter must accordingly be approached on the basis of the complainant's evidence.

Two preliminary points arise. The first, which is in the appellant's favour, is that, notwithstanding the invocation by D the appellant of the complainant's supposed lover, the assault was directed solely at overcoming her resistance to intercourse. Had it been otherwise it would have been irrelevant that the complainant happened to be the appellant's wife. Assault by a husband on his wife in a non-sexual context is an undoubted and frequently punished offence. The second E point, which is against the appellant, is that the appellant was perfectly aware that the complainant was not consenting to intercourse with him. Consequently it was not open to him to claim absence of dolus on the grounds that he genuinely believed that he was entitled to act as he did. It was never his defence that he thought that he was acting within his F rights when he attacked his wife. Before the magistrate his defence was that he did not attack her at all. Before us his only defence was that she was his wife.

Counsel on both sides argued that it is a solidly established principle of our law that rape by a husband on his wife is a legal impossibility. Direct authority for the proposition in G Roman-Dutch...