S v Ncanywa

• Jurisdiction: South Africa

S v Ncanywa
1992 (2) SA 182 (CK)

1992 (2) SA p182

Citation	1992 (2) SA 182 (CK)
Court	Ciskei General Division
Judge	Heath J
Heard	August 12, 1991; September 13, 1991; September 16, 1991
Judgment	November 26, 1991

Flynote : Sleutelwoorde F

Criminal law — Rape — By husband of wife — No justification for marital exemption to crime of rape — Husband may be charged with and convicted of raping his wife — Court should approach cases of alleged G rape of wife by husband with caution to avoid trial becoming forum for settling of marital grievances — This not meaning that onus to prove absence of consent in such case more burdensome than in any other case of rape — Each case to be decided on own facts.

Headnote : Kopnota

H There is no justification for the old marital exemption to the crime of rape. The fiction of consent and even irrevocable consent by a wife to intercourse with her husband has no foundation in law and offends against the boni mores of any civilised society. The absence of consent to intercourse cannot and should not be ignored. Husband and wife have in modern society become equal partners with full dominion over their own bodies. To withhold consent to sexual intercourse, unilaterally, may I be contrary to marital obligation to allow intercourse by the other partner in the marriage and may affect the continued existence of the marriage relationship between the parties. The marital obligation does not, however, entitle the husband to take the law into his own hands by having intercourse with his wife against her will. He may, however, have civil redress against his wife, but then obviously in terms of the legal remedies at his disposal.

The Court added a cautionary remark to the effect that the instant judgment should not be treated by wives as a licence to avenge or to J convert their grievances against their

1992 (2) SA p183

A husbands into charges of rape. A Court will probably have to approach a case of alleged rape by a husband with caution because of human failings and in order to avoid a situation where the trial develops into a forum to settle marital grievances. This does not mean, however, that the onus on the State to prove rape and, in particular, the element of absence of consent in such cases is more cumbersome than in any other rape case. Proof of the existence of a marriage between the parties will not create a presumption, let alone an irrebuttable presumption, of the existence B of consent or lawfulness, but, depending on the facts of the case, it may constitute strong evidence of the existence of consent or lawfulness. Each case will have to be decided on its own particular facts as to the question whether the coition was lawful or unlawful, or, to put it differently, whether the element of consent was absent or present. C

Case Information

Objection to an indictment on a charge of rape. The nature of the objection appears from the reasons for judgment.

M G Nzondo for the accused.

T R Tyler for the State.

Cur adv vult.

D Postea (November 26).

Judgment

Heath J:

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

It appears from the indictment that as at the date of the alleged E 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.

F 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 G African law (and for that matter, in terms of Ciskei law), a husband 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 H 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 paragraphs on p 53:

'8.2 (a)

That the Roman-Dutch rule that a husband cannot rape his wife I 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 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 J England for almost a century;

1992 (2) SA p184

Heath J

(c)

A that it was during the above-mentioned period of doubt that certain obiter dicta of South African Courts created the 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 B inconsistent with the law of husband and wife generally and with the law governing other marital rights (ie besides coition) in particular;

(f)

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)

C that the rule suffers universal opprobrium, as being 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 D our own and that the approach adopted by the Court in that matter should serve as strong persuasive authority as to the 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 husbands for the alleged rape of their wives.

E 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 (for example, if violence was used to effect coition, or if F the spouses had been estranged for a considerable period before the 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' G 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 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 H 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 of a marriage is the marital privilege to coition. Is the absence of consent by the wife to coition irrelevant? Does the husband's I 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 the Court sanctions the termination of the marriage, or only when the J parties by formal agreement terminate the marriage relationship?

1992 (2) SA p185

Heath J

A 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 in South Africa have assumed, subject to qualification, that in terms of B 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 and 441; Snyman Criminal Law 2nd ed at 445, 446, 489 and 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 C 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 1985 (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 D is particularly important in view...