Brief Summary

Criminal Law — Rape — Conviction and appeal — Appellants convicted of three counts of rape involving minors, sentenced to 18 years imprisonment — Application for condonation for late appeal granted due to unconstitutionality of previous provisions — Evidence from multiple complainants established a consistent modus operandi by the appellants — Appellants' denials deemed implausible and unsupported by credible evidence — Convictions upheld.

Comprehensive Summary

Summary of Judgment

Introduction

This was an appeal to the Western Cape High Court (Cape Town) against convictions and sentences imposed in the regional court on three counts of rape. The appellants were Valerie Wolfaardt (first appellant) and Derek Wolfaardt (second appellant), who were tried and convicted as co-accused. The respondent was the State.

In the regional court, both appellants were convicted on three charges of rape and, on 30 October 2000, each was sentenced to an effective term of 18 years’ imprisonment. Applications for leave to appeal against the convictions were heard and refused on 30 November 2000 under the then-applicable section 309B of the Criminal Procedure Act 51 of 1977. A petition in terms of section 309C was later submitted out of time, but the petition documents could not be produced before the High Court because they appeared to have been mislaid.

As a result, the appellants brought an application for condonation for the late prosecution of the appeal, which the State did not oppose. The High Court granted condonation, noting (among other considerations) that sections 309B and 309C had subsequently been declared unconstitutional and that there appeared, prima facie, to be merit in the appeal.

The dispute concerned sexual acts said to have occurred over a number of years involving three complainants who were, at the time of the alleged incidents, children, and who described a consistent pattern of conduct by the appellants. While the trial court had accepted that the sexual intercourse occurred as described, the appeal ultimately focused on whether the proven facts supported convictions for rape, or whether the correct outcome on some counts was conviction for a statutory sexual offence based on the complainants’ ages and the legal effect of their ostensible consent.

Material Facts

The appellants were a married couple (married in 1986). The complainants on counts 2 and 3 were the sisters of the first appellant, respectively 10 and 20 years younger than her. The complainant on count 1 was a friend of the younger sister (the complainant on count 3). At the time of the alleged incidents, the complainants were minors: on count 1 (DK) the complainant was 13; on count 2 (RL) the complainant was 13; and on count 3 (SL) the complainant was 9.

The three complainants gave accounts that the courts regarded as showing a high degree of similarity in the appellants’ alleged modus operandi. In summary, the first appellant would arrange for a complainant to come to the appellants’ home (sometimes staying over), and would tell the complainant that she and her husband struggled to have children and that doctors had indicated the problem could be solved if the second appellant could “sleep” with the complainant. After the complainant agreed, the first appellant would have the complainant undress, leave the bedroom, and the second appellant would enter, undress, and have sexual intercourse with the complainant. Afterward, a white substance would be collected into a container and handed to the first appellant. The complainants described being given gifts after these incidents.

On count 1, DK’s evidence included that during 1995 her mother took her to a doctor because her mother noticed something wrong, and DK was found to be pregnant. DK then disclosed the alleged sexual conduct; she underwent an abortion; and the matter was reported to the police. The second appellant was identified as the cause of the pregnancy. The matter was not prosecuted at the time, according to DK, because someone at the magistrates’ court indicated there were no merits in the charge. DK’s mother confirmed the circumstances of discovering the pregnancy and that DK disclosed the alleged conduct in the doctor’s presence.

On count 2, RL testified that the same pattern occurred. She said she agreed because she felt sorry for the appellants due to their inability to have children. She described sexual intercourse on two occasions, and testified that during the second occasion she told the second appellant at some stage that she did not want to continue. Before her 21st birthday, she disclosed the events to her parents; a family meeting was held; and the appellants denied the allegations. RL obtained counselling for a period before the trial. A further witness (RL’s sister-in-law) testified that she believed RL’s account and stated that the first appellant had previously approached her on the same basis to have intercourse with the second appellant, but she refused.

On count 3, SL testified that the same approach was used when she was nine. She said she did not disclose it at the time because she felt guilty, and only disclosed it after RL’s experiences were discussed within the family and RL questioned her directly. After disclosure, another family meeting took place in which the appellants were given an ultimatum to seek psychological treatment within three weeks, failing which the complainants would report the matter to the police. The appellants refused, and RL and SL made police statements. The police, through computer-stored data, became aware of the earlier complaint by DK, and the prosecution proceeded on all three counts.

The appellants’ defence at trial was a denial of the alleged sexual conduct. In relation to DK, the appellants claimed she had never been to their home and that she had arrived at their home claiming she was pregnant by a cousin (named A) and seeking help, but then ran away when told her mother would need to be approached; later the police arrived and arrested the second appellant for rape. In relation to RL and SL, the appellants advanced the contention that their evidence was the product of a family conspiracy.

The High Court accepted that the regional magistrate was entitled to find the complainants credible, to reject the appellants’ denial as inherently improbable and contrived, and to find that the sexual conduct described by the complainants had indeed occurred. The central factual controversy was therefore resolved against the appellants, and the appeal turned on the legal characterisation of the complainants’ apparent agreement to intercourse (particularly on counts 1 and 2) and the legal consequences of age (particularly on count 3).

Legal Issues

The central legal questions were whether, on the facts accepted by the trial court, the appellants were correctly convicted of rape on all three counts, or whether (at least on counts 1 and 2) the State had failed to prove absence of valid consent because the complainants’ agreement was obtained by misrepresentation and emotional manipulation rather than by force.

The appeal raised issues of both law and the application of law to fact. The factual findings on credibility and occurrence of intercourse were treated as essentially settled in favour of the State, but the appeal court had to determine the legal effect of the complainants’ ostensible consent, including whether it was negated by (i) alleged lack of wilsvermoë (capacity to consent) and (ii) fraud/misrepresentation as to the purpose or consequences of intercourse. In addition, the court had to apply a rule of law relating to a child under a certain age being incapable of consenting, which affected the rape conviction on count 3.

A consequential issue concerned the appropriate outcome once rape convictions on counts 1 and 2 were found to be unsustainable: whether convictions could be substituted for a competent verdict under the statutory sexual offences regime, and what sentences should then follow.

Court’s Reasoning

The High Court began by dealing with condonation. It took into account that the petition process under sections 309B and 309C had subsequently been declared unconstitutional, that the State did not oppose condonation, and that there appeared to be prima facie merit in the appeal. Condonation was therefore granted and the appeal was heard.

On the merits, the High Court emphasised the established appellate restraint in interfering with credibility findings made by a trial court that had the advantage of seeing and hearing witnesses, particularly in a long and emotionally charged trial. The court noted that the complainants were at times emotionally affected while testifying, that the sisters of the first appellant found it particularly difficult to testify against her, and that the trial court was impressed by their credibility and consistency. The High Court held there was no proper basis to interfere with the trial court’s acceptance of the complainants’ accounts and rejection of the appellants’ conspiracy explanation and denial as far-fetched and fabricated.

However, the court separated the question whether intercourse occurred from the question whether the elements of rape were established. It considered the trial court’s approach to consent, which relied on findings (in relation to counts 1 and 2) that there was no consent because the complainants were misled and lacked wilsvermoë, and (in relation to count 1) that DK initially refused when she realised what was going to happen. The High Court held that this approach could not be sustained on the record.

As to DK’s alleged refusal, the High Court pointed to portions of her evidence (including references to her earlier police statement) indicating she had said she “agreed” to help the appellants, and that she did not report earlier because she had agreed and believed she would not be believed. The court held that the context of these passages was not explored sufficiently at trial to justify a finding beyond reasonable doubt that consent was factually absent in the relevant sense. The High Court therefore treated the issue as requiring a more precise legal inquiry into capacity and fraud.

The High Court then addressed the trial court’s reliance on Snyman’s discussion of wilsvermoë (will-capacity to consent). It held that the concept concerned whether the complainant had the mental capacity to understand the nature of the act. On the evidence, there was no basis to conclude that the 13-year-old complainants on counts 1 and 2 lacked the mental capacity to understand that sexual intercourse was intended; the circumstances described (being told to undress, wait in the bedroom, and “sleep” with the second appellant) indicated they understood the nature of what would occur. The court held that it would be surprising to find, in the absence of specific evidence, that normal 13-year-old girls did not comprehend that intercourse was intended. Accordingly, the High Court held there was no proof beyond reasonable doubt that DK and RL lacked wilsvermoë.

The remaining question was whether consent procured by the first appellant’s misrepresentations (that intercourse would assist the appellants to have a child) amounted in law to no consent for rape. The High Court considered authority indicating that some forms of fraud can vitiate consent for rape (such as deception as to the identity of the person or the nature of the act), while deception relating to the consequences or supposed benefits of intercourse does not necessarily negate consent to the act itself. Applying this distinction, the High Court held that the complainants’ agreement—though obtained by manipulation and a false narrative about fertility—was consent to intercourse with the second appellant and was not a mistake about the identity of the partner or the nature of the act. The misrepresentation related to the result or purpose of intercourse (a supposed medical/fertility benefit for the appellants), which, on the authorities discussed, did not convert the intercourse into rape on the basis of lack of consent.

On that reasoning, the High Court held that the rape convictions on counts 1 and 2 could not stand because there had been “real” consent in law despite the deception. Nonetheless, because DK and RL were under 16 at the time, the second appellant’s conduct amounted to a contravention of section 14(1)(a) of the Sexual Offences Act 23 of 1957, and the first appellant’s involvement rendered her an accomplice. The court held this offence was a competent verdict on a rape charge under section 261(1)(e) of the Criminal Procedure Act 51 of 1977, permitting substitution of convictions rather than outright acquittal.

In relation to count 3, the High Court held that SL was 9 years old at the time. Applying the rule that a girl under the age of 12 is irrebuttably presumed incapable of consenting to sexual intercourse, the court held that proof of intercourse with such a child sufficed to sustain the rape convictions. The appeal against conviction on count 3 was therefore dismissed.

On sentence, the High Court noted that there was no appeal against sentence as such, but that substitution of convictions on counts 1 and 2 necessitated interference with the sentences on those counts. The court referred to the statutory maximum penalty under section 22 of the Sexual Offences Act 23 of 1957 for a contravention of section 14(1), and, having regard to the appellants’ personal circumstances, the facts, and the cumulative effect of sentences, imposed three years’ imprisonment on each of counts 1 and 2, and ordered these sentences to run concurrently with the 15-year sentence on count 3.

Outcome and Relief

The appeal against conviction on count 3 was dismissed. The convictions and sentences on count 3 were confirmed.

The convictions and sentences on counts 1 and 2 for rape were set aside and replaced. The second appellant’s convictions on counts 1 and 2 were substituted with convictions for contravening section 14(1)(a) of the Sexual Offences Act 23 of 1957, and the first appellant’s convictions were substituted with convictions of accomplice liability in respect of those contraventions. Each appellant was sentenced to three years’ imprisonment on each of counts 1 and 2.

It was ordered that the sentences imposed on counts 1 and 2 would be served concurrently with the sentence of 15 years’ imprisonment imposed on count 3 for each appellant.

No distinct costs order is reflected in the judgment (consistent with the ordinary approach in criminal appeals).

Cases Cited

S v Steyn 2001 (1) SA 1146 (CC).

S v Francis 1991 (1) SASV 198 (A).

R v M 1953 (4) SA 394 (A).

R v C 1952 (4) SA 117 (O).

R v Wiliiams 17 PH.H 38.

R v K 1966 (1) SA 366 (RA).

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

Legislation Cited

Criminal Procedure Act 51 of 1977 (sections 309B, 309C, 261(1)(e)).

Sexual Offences Act 23 of 1957 (sections 14(1)(a), 22).

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The High Court held that the trial court’s factual findings that the sexual intercourse occurred as described by the complainants should not be disturbed on appeal, given the trial court’s credibility findings and the inherent improbability of the appellants’ denial and conspiracy defence.

It held further that, in respect of the complainants aged 13 on counts 1 and 2, the State had not proved beyond reasonable doubt that they lacked the mental capacity to consent to the nature of the act, and that deception as to the alleged fertility-related purpose of intercourse did not negate consent in law where the complainants were not mistaken about the identity of the sexual partner or the nature of the act. The convictions for rape on counts 1 and 2 were therefore unsustainable, but were properly replaced with convictions for contravening section 14(1)(a) of the Sexual Offences Act 23 of 1957 (and accomplice liability for the first appellant), as competent verdicts on the rape charges.

In respect of the complainant aged 9 on count 3, the High Court held that, because a girl under 12 is irrebuttably presumed incapable of consenting, the rape convictions on count 3 were correctly entered and were confirmed. The sentences on counts 1 and 2 were replaced with three-year terms ordered to run concurrently with the confirmed 15-year sentence on count 3.

LEGAL PRINCIPLES

An appellate court will be slow to interfere with a trial court’s findings on credibility and factual acceptance of witness testimony, particularly where the trial was protracted and emotionally charged, unless a material misdirection is shown.

For purposes of rape, consent may be vitiated by fraud in limited categories, particularly where deception relates to the nature of the act or the identity of the person with whom intercourse occurs. Where the deception relates instead to the anticipated consequences, benefits, or purpose of intercourse, the consent may remain legally effective consent to sexual intercourse, even though induced by misrepresentation.

The question of a child complainant’s wilsvermoë (capacity to consent) is a factual enquiry focused on whether the complainant had the mental capacity to understand the nature of the act. In the absence of evidence indicating incapacity, the mere youthfulness of a 13-year-old complainant does not, without more, establish lack of such capacity beyond reasonable doubt.

A girl under the age of 12 years is, by an irrebuttable presumption, incapable of consenting to sexual intercourse; proof of intercourse with such a child supports a rape conviction because consent is legally impossible.

Where rape is not proved, but the complainant was under the statutory age of consent at the time, a conviction for contravening section 14(1)(a) of the Sexual Offences Act 23 of 1957 may be substituted as a competent verdict on a charge of rape under section 261(1)(e) of the Criminal Procedure Act 51 of 1977.

Wolfaardt en n Ander v S (A26/2002) [2003] ZAWCHC 38 (26 August 2003)