S v Moipolai

• Jurisdiction: South Africa
• Judge: Mogoeng JP and Gura AJ
• Judgment Date: 20 August 2004
• Citation: 2005 (1) SACR 580 (B)
• Hearing Date: 11 June 2004
• Docket Number: 53/2004
• Counsel: R Duvenage for the appellant. V D Mdabula for the State.

Mogoeng JP:

Introduction

[1] The appellant in this matter was convicted of rape and sentenced to undergo an effective term of ten years' imprisonment by the regional J

Mogoeng JP

court. This is an appeal against both conviction and sentence. The factual background relevant to this appeal follows below. A

Factual background

[2] The following facts are either common cause or not disputed:

(a)

This appeal relates to the sexual intercourse (the B intercourse) that actually took place between the appellant and the complainant in this matter;

(b)

It took place during the night of 27 July 2002 at Mayayane village in the Molopo district;

(c)

As at the time of the incident, the appellant and the complainant had two children together. The complainant was then eight months' pregnant with their third child. They had been lovers C for about seven years.

(d)

Complainant was at the appellant's parental home at the instance of the appellant.

(e)

The intercourse between the appellant and the complainant took place at the time when these two and a lady called D Matron were sharing the same bed.

(f)

Complainant had already been beaten up when the intercourse took place.

(g)

At about 05h00 on 28 July 2002, the complainant went to the nearby police station to lay a charge of rape against the appellant. What follows are the versions of the complainant and of the E appellant.

[3] Complainant's version is that at some stage during the night of 27 July 2002, whilst she was at the appellant's parental home, she told the appellant that she wanted to sleep. The appellant F then advised her to go into the house and sleep. Sometime thereafter, the appellant and Matron entered the house in which she was sleeping. The complainant was made aware that all three of them were to share the same bed. She refused to be party to the arrangement. Consequently, she then dismounted the bed and told the appellant that she was leaving for her parental home. The appellant punched her between her cheek and chin G on the right hand side. She fell down and also sustained a laceration on the right arm. The appellant then ordered her not to go anywhere. She gave up leaving and slept.

[4] Thereafter, the appellant undressed the complainant of her pair of pants and of her panties. He then had intercourse with her H against her will. Matron was still on the same bed with them. The presence of Matron in the same room and on the same bed with her and the appellant made the idea of intercourse between her and the appellant repugnant to her. The complainant also said that she could not have consented and did not consent to intercourse with the appellant shortly after she had been beaten up by the appellant. The I appellant testified as set out below.

[5] The complainant arrived at his parental home, where liquor was being consumed, at the time when there were only about three patrons J

Mogoeng JP

remaining. One of these people was a man who wanted to forcibly take Matron away from the appellant's parental home. Eventually, the A appellant intervened. His intervention exasperated the complainant, who did not appreciate why the appellant had to make the issue between Matron and that other man any of his business. The complainant then struck Matron with an open hand. Matron hit back and this is how the complainant sustained her injuries. B

[6] Complainant then entered the house, followed by the appellant. She locked Matron out of the house. After a while, the complainant suddenly opened the door and pulled Matron into the house. A quarrel ensued between the two women. The appellant commanded both of them to leave the house since they were quarrelling. In response, the complainant said that she was not going anywhere. After the quarrel had C ended, the appellant entered the blankets, followed by the complainant and then Matron, who was instructed by the complainant to join in. All three of them shared the same bed.

[7] Appellant then had intercourse with the complainant. He denied that he raped her. His reason for this denial was basically that D the complainant is the mother of his children and he cannot, therefore, be said to have raped her. I understood this to mean that the nature of their relationship is such that it renders their intercourse incapable of being legally categorised as rape. E

The issues

[8] The question that falls for determination in respect of the conviction is, whether or not the complainant consented to the intercourse with the appellant. With regard to sentence, the question is whether or not the sentence imposed induces a sense of shock or whether it is substantially heavier than the one we would have imposed F had we originally been seized of the case.

The conviction

[9] Counsel for the appellant submitted that the State cannot be said to have proven the absence of consent to the intercourse beyond a G reasonable doubt. This was based on the fact that the appellant and the complainant were lovers for some seven years, they had two children together, the complainant was expecting their third child and at no stage did the complainant offer any resistance whatsoever to the intercourse. She neither verbalised her opposition thereto nor did she H act, at the crucial moment, in a manner which could reasonably be said to have conveyed her opposition to the intercourse, to the appellant. The State contended that the totality of the circumstances clearly demonstrate that the complainant could not have consented to the intercourse with the appellant and that the guilt of the appellant was proved beyond a reasonable doubt. I

[10] It is correct that the complainant did...