S v Ncanywa

• Jurisdiction: South Africa
• Judge: Heath J
• Judgment Date: 26 November 1991
• Counsel: M G Nzondo for the accused T R Tyler for the State
• Citation: 1992 (1) SACR 209 (Ck)
• Court: Ciskei High Court

Heath J:

The accused in this matter is charged with the crime of rape on J the first count and on the second count with attempted rape.

Heath J

A It appears from the indictment that as at the date of the alleged commission of the crimes, the complainant and the accused were husband and wife. They were married to each other in community of property on 3 July 1980, but the relationship between them had gradually deteriorated until they became estranged. At the time of the alleged commission of the crimes they were no longer staying together in the common home.

B The second count deals with an allegation that the accused had forced the second complainant to have intercourse with his wife, the first complainant, but the second complainant was unable to comply.

When the matter was called, Mr Nzondo, on behalf of the accused, objected to the charge-sheet and submitted that in terms of South African law (and for that matter, in terms of Ciskei law), a husband C cannot be convicted of rape of his wife.

I am grateful to Mr Nzondo for the well-prepared submissions made by him. I am also grateful to Mr Tyler for the thorough research that he has done with the limited resources at his disposal. He provided the Court with a detailed argument and with copies of the authorities, inter alia, that he deals with.

A summary of Mr Tyler's submissions appears at the end of his written heads of argument and I quote from para 8.2(a)-(i) and the last two D paragraphs on p 53:

'8.2 (a)

that the Roman-Dutch rule that a husband cannot rape his wife was abrogated when the husband's marital power over the person of his wife was abrogated;

(b)

that after Clarence's case supra and until Miller's case E supra the existence of the rule in England was extremely doubtful and that the latter case effectively, upon the basis of a mistaken reading of the applicable authority, reintroduced a legal position which had not existed in England for almost a century;

(c)

that it was during the above-mentioned period of doubt that certain obiter dicta of South African Courts created the F impression that the rule had been received in our law;

(d)

that the above-mentioned obiter dicta were ill-considered and given without authority, and are thus of themselves no binding precedents;

(e)

that the rule is fundamentally offensive to our law, being inconsistent with the law of husband and wife generally and with the law governing other marital rights (ie besides coition) in particular;

(f)

G that English authority cannot be taken to have displaced our established law, unless such displacement is clearly demonstrated to have occurred;

(g)

that the reception of the rule in our law was assumed by many, without any sufficient basis in precedent, to have occurred;

(h)

that the rule suffers universal opprobrium, as being H offensive to contemporary boni mores, while several distinguished lawyers doubt its existence in our law;

(i)

that the Scottish position, when the rule came to be considered in Duffy's case supra, was virtually identical to our own and that the approach adopted by the Court in that matter should serve as strong persuasive authority as to the I correct approach to be adopted in casu.

It is respectfully submitted that if the above findings are made, there is ample justification for this honourable Court to hold that the rule was never received into our law, but that its existence in South Africa was erroneously assumed, particularly by the Attorneys-General, who on that account declined to prosecute J husbands for the alleged rape of their wives.

Heath J

A It is respectfully submitted that this honourable Court should find that the husband's marital right to coition affords no more than a factual presumption that his wife consented to coition with him, which factual presumption may be displaced, depending on the circumstances of each case, if the facts prove an absence of consent (eg, if violence was used to effect coition, or if the spouses had been estranged for a considerable period before the B coition took place, or if the wife gives credible evidence which establishes absence of consent).'

Introduction

Various questions come to mind. Is it lawful for a husband to 'rape' his wife. Is the position that he is entitled to 'rape' his wife, whilst not being entitled to assault her or to commit any form of indecent assault? Does he have control over his wife's body by reason of their C marriage? Is it part of our law that he is entitled to enforce his marital privileges as long as he does not use violence? Has our system become so sophisticated that our courts can and are expected to draw a distinction between force or violence or a threat exercised (which would constitute a crime) up to the point of coition on the one hand, and the coition itself, on the other hand? The physical act of coition itself - does such an act constitute an assault? One of the natural consequences D of a marriage is the marital privilege to coition. Is the absence of consent by the wife to coition irrelevant? Does the husband's entitlement to this marital privilege remain intact notwithstanding a breakdown in the marriage or the relationship between the parties? Is the position that coition without consent becomes unlawful only when a court is persuaded that the marriage has come to an end and only when E the Court sanctions the termination of the marriage, or only when the parties by formal agreement terminate the marriage relationship?

Mr Nzondo, on behalf of the accused, submitted that the principle has been established in the South African law that a husband cannot be convicted of rape of his wife. Mr Tyler, on behalf of the State, submitted that the Courts in a number of judgments and other authorities F in South Africa have assumed, subject to qualification, that in terms of South African law, a husband cannot rape his wife. See Hunt South African Criminal Law and Procedure vol 11 at 40, 398, 402, 435, 437, 441; Snyman Criminal Law 2nd ed at 445, 446, 489, 490; Hahlo The South African Law of Husband and Wife 4th ed at 100 and 113; Joubert (ed) Law of South Africa vol 6 at 247 para 280; Smith and Hogan Criminal Law 6th ed at 430; Labuschagne 'Nie-Konsensuele Geslagsmisdade: 'n G Misdaadsistematiese Herwaardering' (1981) 44 THRHR 18 at 19; R v M 1953 (4) SA 393 (A); R v K 1958 (3) SA 420 (A); S v H 1988 (2) SA 750 (N).

By reason of the approach that this principle is derived from Roman-Dutch law and from the English law, I find it necessary to consider and analyse both the Roman-Dutch law and English law to establish what the legal position was and is in those two systems. This H is particularly important in view of the fact that it would appear that the origin of this rule and the existence or introduction of this rule in South African law has up to now not been considered in much detail by any Court in South Africa.

Roman-Dutch law

As far as it could be established from available sources, it would appear that the crime of 'rape' did not exist eo nomine as a crime in I the Roman-Dutch law. The rule, as such, did not exist in Roman-Dutch law.

Raptus, which would appear, etymologically, to supply the basis of modern rape, actually corresponds to what we would term 'abduction' and was treated by both Voet and Van der Keessel as a species of public violence (vis publicae). It would appear that in general the offence consisted of the violent 'carrying away' of, inter alia, women of certain classes. See De Wet and Swanepoel Strafreg 3rd ed at 242 et seq; J Voet Commentarius ad Pandectas 48.6.4; Van der

Heath J

A Keessel Praelectiones ad Jus Criminale (1809) 48.6.7 (Beinart and Van Warmelo's translation (1972) at 883 et seq).

It also would appear that the Roman-Dutch authorities treated the actus reus of rape as a form of stuprum being one of a whole group of offences based on illicit sexual intercourse. Stuprum, on the other hand, was regarded as seduction, ie, coition with women of certain B classes, but apparently married women and prostitutes were excluded.

From stuprum as such, stuprum violentum was distinguished as a form of seduction against the will of a woman. This was regarded as closely related to violent raptus and was punished as such.

Some writers treated coition against the will of a woman as a species of vis. From this developed the concepts of 'vrouenkracht' (Damhouder) C or 'verkrachting' (Moorman). See De Wet and Swanepoel (op cit at 249 et seq); Snyman (op cit at 489 para 2); Voet (op cit 48.5.2); Van der Keessel (op cit 48.5.21 and 25 (especially at 817, 829 and 833 et seq of the translation)); Nathan The Common Law of South Africa vol IV (1907) at 2592 (rape a species of vis).

The Roman-Dutch crime which corresponds with the modern crime of rape, D required violence as an element of the crime. In terms of South African law, violence is not an element of the crime. The generally accepted definition of rape is the (a) intentional (b) unlawful (c) sexual intercourse with a woman (d) without her consent. The element of unlawfulness is based essentially on the absence of consent. See R v K (supra at 423B); De Wet and Swanepoel (op cit at 253); Labuschagne (op cit at 21).

E I will deal later with the development, that in terms of the South African law violence is no longer required as an element of the crime, but merely the absence of consent. However, as far as the Roman-Dutch law is concerned, 'rape' consisted of a crime involving violence.

Direct authority for the exemption of a husband from rape on his wife in Roman-Dutch law is scant. I refer to a number of authorities dealing F with the position in the Roman-Dutch law:

(a)

Damhouder Pracktycke in Crimineele Sake (1650) 95.16 states that a husband cannot rape his wife because he has 'vol Recht in den Persoon van sijnen Wijve daer hy Huwelijck...