Kgatla v S (A494/14) [2015] ZAGPPHC 437 (29 May 2015)

80 Reportability

Criminal Law

Brief Summary

Criminal Law — Rape — Consent — Appellant convicted of rape of his stepdaughter, claiming the sexual intercourse was consensual — Evidence presented by complainant established lack of consent, corroborated by appellant's own admissions — Court held that submission does not equate to consent and that the State proved beyond reasonable doubt that the complainant did not consent to the sexual acts — Appeal against conviction dismissed.

Comprehensive Summary

Summary of Judgment

1. Introduction

This was an appeal against conviction in the Gauteng Division of the High Court, Pretoria. The appellant, Ephraim Thibedi Kgatla, appealed against his conviction for rape, with the State as the respondent.

The appellant had been convicted on 8 August 2012 and sentenced on 10 October 2012. He sought leave to appeal only on 19 February 2013 (out of time), and the trial court granted leave to appeal in respect of the conviction on 12 June 2014. Before the appeal could be entertained, the High Court was required to consider condonation for the late prosecution of the appeal. The State did not oppose condonation, and the High Court granted it in the interests of justice.

The general subject-matter of the dispute concerned whether the State had proved, beyond reasonable doubt, that the complainant did not consent to sexual intercourse with the appellant, and whether the appellant had the required mens rea (in particular, knowledge of lack of consent, or recklessness as to consent) for the offence of rape.

2. Material Facts

The appellant was charged in connection with events alleged to have occurred on 7 July 2011 at Sekukune, Limpopo, where he allegedly raped the complainant P K by inserting his penis into her vagina without her consent. The complainant was the appellant’s seventeen-year-old stepdaughter, the appellant being married to her mother.

It was common cause that sexual intercourse took place between the appellant and the complainant on the night in question. It was also not in dispute that the appellant had been intoxicated, having consumed a mixture of alcoholic drinks (beer and whiskey), and that he had returned home during the evening and eaten food prepared at home.

The facts in dispute centred on consent. The complainant’s version, relied upon by the court, was that the appellant entered her bedroom while she was asleep, woke her, fondled her, pushed her back onto the bed, and had sexual intercourse with her without her consent. She testified that she was afraid, feared for her life, and cried while he undressed her. She further stated that, later that same evening, the appellant returned twice, removed her from her room to another room, and raped her two further times.

The appellant’s defence at trial (and on appeal) was that the sexual intercourse was consensual. However, the High Court highlighted that on the appellant’s own version he had, on two occasions, admitted that he had sexual intercourse with the complainant without her consent and that he was sorry—once at a family meeting and again during the trial proceedings. The court also referred to corroborative features accepted by the trial court, including evidence that the complainant said she had scratched the appellant and the complainant’s mother observed scratch marks on him.

3. Legal Issues

The central legal questions were whether the State had proved beyond reasonable doubt that:

The complainant did not consent to sexual intercourse; and that the appellant possessed the necessary mens rea for rape, namely that he knew she did not consent or was reckless as to whether she consented.

The dispute primarily concerned the application of legal principles to the facts, particularly how to evaluate evidence relevant to consent and the accused’s state of mind. The appeal also engaged with evaluative questions about whether aspects relied on by the defence—such as alleged absence of explicit verbal refusal, lack of resistance, or later submissive conduct—could negate proof of absence of consent or mens rea.

4. Court’s Reasoning

The court approached the appeal by emphasising that, in rape cases, the question of consent or lack thereof is fundamental and must be established for a conviction. It referred to the principle that intention is an element of rape, and that the State bears the burden to prove that the accused had the requisite mens rea, including knowledge of non-consent (or recklessness as to consent), beyond reasonable doubt.

In assessing the complainant’s evidence, the court identified specific aspects of her testimony indicating lack of consent, including her evidence that she was scared, cried when undressed, and that intercourse was forced “against my wish.” The court treated these as direct indicators of non-consent.

A central feature of the court’s reasoning was the appellant’s own statements, accepted by the court as admissions, that he had sexual intercourse with the complainant without her consent and was sorry. The court considered these admissions, together with the complainant’s reaction and conduct described in evidence, as demonstrating that the appellant had knowledge (from her reactions and actions) that she was not consenting, yet proceeded to have intercourse with her repeatedly.

The court also addressed the defence submission that the complainant did not resist, or that after the first incident she was submissive. Applying the principle that submission is not consent, the court held that submissive behaviour after an initial rape could not be treated as consent to subsequent intercourse. On the court’s evaluation, the complainant’s conduct could not properly be confused with consent, and the appellant’s conduct met the mental element described in the cited authority, including recklessness as to whether she consented.

In the result, the court concluded that the State had proved beyond reasonable doubt that the complainant did not consent and that the appellant raped her, including during the second and third episodes even if she appeared submissive.

5. Outcome and Relief

Condonation for the late prosecution of the appeal was granted in the interests of justice, there being no opposition by the State.

On the merits, the appeal against conviction was dismissed. The judgment recorded no separate or express costs order in relation to the appeal.

Cases Cited

R v Z 1960 (1) SA 739 (A)

Legislation Cited

Criminal Procedure Act 51 of 1977 (sections 256 and 261 referred to in the charge sheet as recorded)

Criminal Law Amendment Act 105 of 1997 (section 51(2))

Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (section 3 read with sections 1, 56(1), 58, 59, 60 and 61)

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The High Court held that the State proved beyond reasonable doubt that the complainant did not consent to sexual intercourse with the appellant, and that the appellant possessed the required mens rea for rape, including in circumstances where the complainant’s later conduct could be characterised as submissive. The court further held that the appellant’s own admissions that intercourse occurred without consent corroborated the State case. The appeal against conviction was accordingly dismissed.

LEGAL PRINCIPLES

Consent is an essential element in rape cases, and the State must prove lack of consent beyond reasonable doubt.

Rape is a crime requiring mens rea; the State must prove that the accused knew the complainant did not consent, or that the accused was reckless as to whether the complainant consented.

Submission is not consent. A complainant’s submissive conduct, including after an initial act of rape, does not constitute consent and does not preclude a finding of rape if lack of consent and the required mens rea are established beyond reasonable doubt.