S v Ncanywa

• Jurisdiction: South Africa
• Judge: Galgut JA
• Judgment Date: 02 February 1993
• Citation: 1993 (1) SACR 297 (CkA)
• Hearing Date: 12 October 1992
• Counsel: M Ndzondo for the appellant TR Tyler for the State
• Court: Ciskei Appellate Division

Galgut JA:

The appellant was convicted, by a Judge sitting in the General Division, of rape and attempted rape. He was sentenced to eight years' imprisonment. The two counts were taken as one for purposes of sentence. E The sentence was wholly suspended for five years on certain conditions. He now appeals only against the convictions. [*]

In the rape charge, which was count 1, it was alleged that he, on 26 March 1990, had sexual intercourse with his wife without her consent. They were at the time not living together. Divorce proceedings were in progress. In count 2 it was alleged that he had on the same date attempted F to force one Mzowoxolo Mqinwana to have sexual intercourse with his, appellant's, wife.

Appellant pleaded not guilty to both charges. His version of the events appears from what he said in terms of s 115 of Act 51 of 1977 and as amplified when he gave evidence. He stated that he arrived at his wife's house; that he asked their child where his mother was and was told she was in the bedroom; that he forced the door of the bedroom open; that he there G found her and Mqinwana in the same bed; that he concluded that she was committing adultery; that he then left the house. He denied that he had intercourse with her or that he tried to force Mqinwana to do so.

I need set out the wife's evidence only very briefly. She testified that Mqinwana was playing a tape in her bedroom, on her radio; that the child and a friend were in the next room; that appellant arrived and called her H out of the room; that he accused her of having an affair with Mqinwana; that she denied this; that appellant then accused Mqinwana of so doing; that the latter denied the allegation; that appellant then assaulted him; that she then screamed; that appellant then assaulted her; that he then told them that he was going to force them to do what they had been planning; that he instructed them both to undress and told her to lie on the bed; that he instructed Mqinwana to lie on top of her to have I intercourse; that he did so but was unable to have an erection; that appellant then instructed him to fondle himself and when this produced no result appellant fondled him, but again with no result; that appellant then took him out of the bedroom. The wife further stated that she remained lying naked on the bed; that appellant then undressed and

Galgut JA

A had intercourse with her; that she did not consent thereto, but did not resist because she was afraid to do so and because he was her husband and she was therefore not entitled to resist. In reply to a question by counsel whether appellant had assaulted her prior to the intercourse she said that he did not do so because 'I was doing all what he wanted me to do'.

An important aspect of her evidence is that he thereafter instructed her B to bring a pair of scissors; that she did so; that he then cut hair from her head and also some of her pubic hair; that Mqinwana's hair and pubic hair was also cut; that he put their hair into a tissue and said he was taking it to a witch-doctor to ensure that she did not persist in her excessive financial claims in the divorce.

I pause to say that the evidence is that although the divorce proceedings were on foot, appellant did on occasion visit the house and they then had intercourse. C

Although there were differences in their evidence, Mqinwana corroborated the wife on the relevant issues.

The wife's mother, aged 76, testified that her daughter came to her that day in a shocked and downhearted state. Her daughter told her that appellant had instructed Mqinwana to have intercourse with her; that her husband had had intercourse with her; that he had cut hair from her head D and her pubic hair. The mother said she saw where the hair had been cut from her daughter's head.

The above summary of the evidence set out the direct clash between the two versions. The learned trial Judge, having carefully examined all the E aspects, rejected the appellant's version. He accepted the evidence of the wife and Mqinwana. Despite counsel's urgings, we have not been persuaded that he erred in so doing. The mother's evidence of the above report, made to her very shortly after the events, corroborates the evidence of the wife and Mqinwana. Her evidence about the hair and that she saw where it had been cut off is, as already stated, significant.

When the matter was called in the Court a quo, the defence, acting in terms of s 85(1)(c) of the Criminal Procedure Act 51 of 1977, raised an objection to count 1. It was submitted that the charge did not disclose an F offence. The submission was that the rule of the Roman-Dutch law, that a husband could not be found criminally liable of raping his wife, still applied in the Republic of South Africa (the RSA) and in the Ciskei; that accordingly, as the parties were still married when the intercourse took place, the appellant should have been acquitted on count 1.

The learned trial Judge dismissed the objection. His reasons for so G doing are set out in detail in a 70-page judgment. He stated that he was assisted by the research done by counsel. I, however, pause to say that the research done by the Judge himself cannot be overstressed. He granted leave to appeal to this Court.

In R v Mosago and Another 1935 AD 32 at 34 Wessels CJ said:

'Now by our law a person commits the crime of rape if he has carnal connection with a woman (not his wife) without her consent'.

H In R v K 1958 (3) SA 420 (A) Schreiner JA at 421 set out (to use his words) 'the established definition of rape'. He stated:

'The offence consists in having connection with a woman, other than a man's wife, without her consent.'

At 423 Steyn JA stated that the cases quoted at 215-216, in the then edition of Strafreg by De Wet and Swanepoel, showed that:

I 'Ons reg ontwikkel het in die rigting dat geweld en die daarmee gepaardgaande positiewe strydigheid met die wil van die slagoffer, nie meer as 'n onontbeerlike bestanddeel van die misdaad beskou word nie. Afwesigheid van toestemming is voldoende. So word bv in R v Mosago and Another 1935 AD 32 op 34 verklaar:

". . . by our law a person commits the crime of rape if he has J carnal connection with a woman (not his wife) without her consent."

Galgut JA

A Dit is die geldende opvatting wat in ons hedendaagse reg ingang gevind het.'

(See also the 3rd edition of Strafreg at 242ff.)

In R v Z 1960 (1) SA 739 (A) Ramsbottom JA at 745 repeated the definition of rape given by Schreiner JA in R v K (supra).

In R v Gumede 1946 (1) PH H68 (N) Hathorn JP stated: B

'Although a husband cannot be found guilty of raping his wife, by reason of her consent in marriage, no wife agrees when she marries that her husband may indecently assault her.'

Counsel for the State correctly suggests that the Judge President's statement of the law was influenced by the English law as stated in R v C Clarence (1888) 22 QBD 23 - to which I refer later.

In S v H 1985 (2) SA 750 (N) Nienaber J, who delivered the judgment of the Court, is reported, at 752, as saying:

(a)

that direct authority for the rule in the RSA was scant. He referred to various text book writers to this effect;

(b)

that present day circumspection of the crime of rape with its D shift in emphasis from sexual intercourse with force to sexual intercourse without consent is a conception of English and not of Roman-Dutch origin;

(c)

that South African text book writers appear to accept the rule;

(d)

that there are some scattered obiter dicta to the same effect, viz the Mosago case supra; R v K (supra); the Gumede case supra.

(e)

E that -

'if that (the rule) is indeed the state of our law - on which I prefer to express no view - there is little cause for complacency about it. The rationale for the rule is, to say the least, suspect, its support in authority is thin and...