IN THE HIGH COURT OF SOUTH AFRICA
[EASTERN CAPE DIVISION: MAKHANDA]
CASE NO. CA&R154/2025
In the matter between:
TSEPISO NGUNUZA Appellant
And
THE STATE Respondent
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JUDGMENT
___________________________________________________________________
JOLWANA J
[1] This appeal concerns the oft-controversial issue of whether or not a complainant’s
sexual intercourse with an accused person was with or without her or his consent.
Appellant was arraigned on two counts of rape for contravening various provisions of
the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007
(the Sexual Offences Act), read with sections 268 and 270 of the Criminal Procedure
Act 51 of 1977 (the CPA), further read with sections 51(1), 51(2), Part 1, Parts 2 and
3 of S chedule 2 of the Criminal Law Amendment Act 105 of 1997, (the Minimum
Sentences Act). It was alleged that on 16 April 2024 at or near Gqeberha the
appellant unlawfully and intentionally committed an act of sexual penetration with the
complainant by inserting his genital organs and/or his fingers into or beyond the
complainant’s genital organs without her consent. It was further alleged that on the
same date and place the appellant unlawfully and intentionally committed an act of
sexual penetration with the complainant by inserting his genital organs into the
complainant’s mouth without her consent.
[2] Appellant who was legally represented throughout his criminal trial pleaded not
guilty to the charges explaining that the sexual intercourse with the complainant’s
complainant was with her consent. He was, however, convicted on one count of
rape but was acquitted on the second count. He was thereupon sentenced to 15
years imprisonment. He appeals against both conviction and sentence with the
leave of this Court granted on petition to the Judge President subsequent to the
refusal of his application for leave to appeal by the trial court.
[3] The facts in this matter are largely uncontroversial, the only issues being whether
the complainant consented to vaginal sexual intercourse with the appellant. The
state relied largely on the evidence of the complainant and her friend, the so called
first report witness. Formal admissions in terms of section 220 of the CPA 1 were
agreed to and entered into the record. In those admissions, appellant admitted that
he placed his penis and his fingers into the complainant’s vagina and that he placed
his penis into the complainant’s mouth.
[4] The first witness for the state was a forensic nurse who completed the medico -
legal report on 17 April 2024. She testified that complainant’s injuries were tears on
1 Section 220 of the CPA provides that: An accused or his or her legal representative or the prosecutor
may in criminal proceedings admit any fact placed in issue at such proceedings and any such admission
shall be sufficient proof of such fact.
the perineum, the posterior fourchette and on the vestibule. She pointed out that
such tears were possible even if sexual intercourse was consensual. This means
therefore that such injuries are a neutral factor to the issue of whether or not the
sexual intercourse was with the complainant’s consent.
[5] The evidence of the complainant was that she first met the appellant on 14 April
2024 for the very first time in a vehicle driven by a woman who had come to fetch her
so as to take her to that woman’s house. On 16 April 2024 she was at that woman’s
house as she had been asked to look after that woman’s one year old baby. She
was alone with the baby in the house that evening when the appellant arrived. That
woman had intimated to her that appellant would come to the house just to check on
the baby and her. When she opened the door for him, she noticed that the baby was
excited to see him. When she was feeding the baby, and she was struggling to do
so, he offered to help feed the baby. They ended up sitting together on a sofa as he
helped her in feeding the baby.
[6] At some point she took the baby to another room to put him in bed. She was still
in that room when she overheard appellant speaking on the phone with someone
she assumed was his sister telling her that he would not be coming back home that
evening. She asked him about that, and he said that the baby’s mother usually
allowed him to sleep in her house. She felt a bit uneasy about this turn of events,
but she decided that she would raise it with the baby’s mother the following day.
She and the appellant had a conversation on the sofa and at some stage she put her
head on the pillow facing the side opposite to the appellant. He then invited her to lie
on his lap, and she put the pillow on his lap and lay on his lap as they continued with
their conversation.
[7] While they were talking, he kissed her and she told him that he was moving far
too quickly and sat up on the sofa. He said that he was sorry and they continued
with their conversation. At some stage she wanted to sleep, so she went to turn off
the lights in the house. He followed her to the spare room, and she sat on the bed in
that room. He closed the door and turned off the lights. Because it was dark she
could not see him, but she could hear that he was undressing himself. He came to
be with hi m on the bed and tried to touch and caress her. She told him to put his
clothes back on. At that stage he was only wearing his boxer shorts having removed
his other items of clothing. She thought of an excuse to leave that room as she felt
uneasy. She told him that she needed to go and check if the baby was still fine and
sleeping. However, he would not let her leave the room and told her to relax.
[8] They started having a conversation during which she ended up opening up to him
about a previous experience in which her friend tried to sexually assault her about a
year previously. He seemed empathetic to her about it, and she allowed him to hug
her. After some time of talking about that experience, he then put his hands in her
pyjama pants. She told him not to touch her and told him that she had not shaved.
He proceeded to do it anyway saying that he had not shaved either. He took her
hand and pu t it in his pants, but she removed her hand. He put his hand in her
pyjama pants again and then proceeded to penetrate her with his fingers. He then
came on top of her and sat on her abdominal area. He told her to remove her top
not sounding nice about it as he asked her to do that. She just complied and
removed her top. He then caressed her breasts and kissed them while she just lay
there feeling uncomfortable. He pulled her pants down and also removed his boxers
and proceeded to penetrate her with his penis. She tried to move away and to resist
and proceeded to penetrate her with his penis. She tried to move away and to resist
but he had bent her over and penetrated her.
[9] She told him that it was painful and that it hurt to which he said that he was not
going to stop until he ejaculated. Thereafter he put her on top of himself and told her
to do sex acts on him which she was reluctant to do but he assisted her in doing
them which did not last long. He told her to perform oral sex on him to which she
told him she did not know how to do it. He then said that he would teach her. He
proceeded to force her head to his penis as a result of which she performed oral sex
on him. After that she lied to him saying that the baby was crying. She put on her
clothes and headed to where the baby was sleeping. He followed her to the baby’s
room and found her lying next to the baby and tried to finger her while she was with
the baby. She told him that he should not do that in front of the baby and so he
stopped for a while. He then tried to touch her again, but she removed his hand from
touching her. Eventually they slept but she was awake the whole time as she could
not sleep. T he next day she woke up and he tried to talk to her, but she did not
speak to him that much as she was confused about everything that had happened.
She was busy getting the baby ready for school when the baby’s mother called her
and asked her if everything was okay because she could sense that she was not
okay. However, she told her that everything was fine and did not tell her anything
because the appellant was still there. While she was still on that call with the baby’s
mother appellant had told her not to tell her that he was there.
[10] The transport for the baby came to fetch the baby to take him to school. She
then went to the other room at which stage the appellant had already left. She
stayed in that room and called her friend Manyano and told him what had happened.
She had first sent him a WhatsApp message and asked him if it was rape when one
let something happen that they did not want to happen. Manyano said yes, it was
let something happen that they did not want to happen. Manyano said yes, it was
rape and asked her what was going on. She did not answer him as a result he
called her. Manyano came by as he did not stay far and she then explained to him
what happened. She went to report the incident to the police that same morning of
the incident. Police took her to Dora Nginga Hospital where she was examined by a
forensic nurse.
[11] The complainant explained that she went to the spare room to show appellant
where he was going to sleep and in doing so, she was trying to be hospitable to him.
The reason she sat on the bad was because the appellant said he wanted them to
talk. She sat on top of the bed and not under the bedding. When he switched off the
lights and she heard him undressing, she knew that he was going to assault her.
She tried to stand up and leave the room. That is when he told her to relax and just
sit on the be d. She explained that the reason she told appellant about the previous
occasion in which her friend tried to sexually assault her was because she thought
that would make him stop what he was going to do to her. She had even told him
that she is a Christian and that she did not believe in sex before marriage while they
were sitting on a sofa. She testified that she never consented to him inserting his
fingers in her vagina even though when he asked her if it was okay she did not say
anything. When he tol d her to remove her top with a demanding tone of voice, she
became afraid even though he did not threaten her beyond the change in his tone of
voice. She never wanted him to touch her breasts even though she did allow him to
do it. She never said that it was okay for him to do it. At that stage she thought the
encounter would end with the touching of the breasts.
[12] When appellant penetrated her with his penis, he did not use a condom. She
did not consent to him penetrating her and even telling him that she did not want to
have a child was her way of trying to stop him. She did not just only want him not to
penetrate her without a condom, she did not want him to penetrate her at all. She
just raised the issue of not wanting a child as an excuse, but he proceeded to
penetrate her anyway. However, she never said that she did not want to be
penetrated. When she was in pain and hurting because of the penetration, she told
him to stop but he did not stop, saying that he would only stop after he would have
ejaculated. When appellant put her on top of himself, she did not want him to do that
and in fact she resisted by trying to get off but he held her down on top of himself.
He proceeded to h ave oral sex with her which she did not want to do even saying
she did not know how to do it and backed away but he said he would teach her. She
testified that when the incident occurred, she was 21 years old and was a student at
Nelson Mandela University. As a result of the incident, she stopped going to church
and she had nightmares, she would be angry with her parents, had become more
reserved and self -aware even though she was a bubbly person before the incident
and she does not trust men.
[13] The complainant’s evidence under cross -examination was largely dominated by
the assertion that she did not say no, do not do that to the appellant or failing to
stand up and walk out of that room. Mainly because of this, it was then suggested
that she was not raped, that her reasons for saying that she was raped was her guilt
conscience for having compromised her values as a Chirstian. It was put to the
complainant that the appellant’s version would be that she agreed to each and every
one of those sexual acts and that she never told him to stop. Furthermore, it was put
to her that he never threatened her. She confirmed that he never threatened her or
forced her to have sexual intercourse with him. She explained that she did not agree
to those sexual acts. She did not know that he was going to come and take
advantage of her. She had a problem with him kissing her which was why she told
him he was moving too fast. Her excuses and her body language should have been
enough for him to see that she was uncomfortable. He should have known because
even while they were sitting on the couch, she had told him that as a Christian there
are certain thing she would not be doing, not just with him but not with anybody. She
asserted that he knew what her values are. When she heard him removing his
clothes she tried to get up and as she was getting up, he told her to calm down and
relax.
[14] The next state witness was Manyano, a friend of the complainant. His evidence
was that on 17 April 2024 he received a WhatsApp message from the complainant.
That message, as recorded in a statement he made to the police was as follows:
“She asked me, what do I think about the situation whereby someone insisting doing
something whereby a person will tell the insisting person no, and because of the fear
for the person you end up doing it.”
Manyano testified that he later went to the house in which the complainant was.
When he got there, he could see that the complainant was not alright and she could
not even control her tears. The complainant told him what happened. After their
conversation he accompanied her to report the incident to the police.
[15] After the state closed its case appellant’s attorney made an application for the
appellant to be discharged in terms of section 174 of the CPA. The court a quo
delivered a judgment refusing the appellant’s application to be discharged. The
appellant’s attorney thereafter indicated to the court that her instructions were to
close the appellant’s case without testifying or tendering any evidence. I will come
back to this issue later in this judgment.
[16] The court a quo later delivered a judgment in which it found that the appellant
made the complainant comfortable by telling her to relax. It further found that
complainant could not be blamed for thinking that the sexual acts would not go
beyond kissing and cuddling. The appellant gained the trust of the complainant after
assisting her when she was struggling in feeding the baby and he invited her to put
her head on his lap. It further found that she was honest to say that she was a nice
person. The court found that appellant was aware of the complainant’s belief in
abstinence before marriage and that during the vaginal sexual intercourse she told
him to stop, and he refused to stop and continued to have sexual intercourse with
her.
[17] The court concluded that appellant did not present any evidence in rebuttal
especially of him being aware of the complainant’s religious values and how he
understood her body language and her telling him to stop when he was penetrating
her. It further found her evidence to have been consistent with what she told the
nurse who examined her as well as with the questions she had asked Manyano. It
also found that Manyano’s response that what had happened to her was rape was
not him making any suggestions to her. In the final analysis, it concluded that the
complainant was an honest and reliable witness who told the truth and further
concluded that it had no reason not to accept such evidence especially as there was
no countervailing evidence. It concluded that the facts were indicative of the
complainant not having consented to vaginal penetration. It further concluded that
even if it could be said that there was consent at some stage, complainant’s verbal
expressions and body language showed the withdrawal of such consent and that the
appellant being aware of the withdrawal of such consent, nevertheless persisted with
his act of vaginally penetrating the complainant.
[18] The appellant’s case on appeal was anchored on two main submissions. First, it
was submitted that the state did not prove that the intercourse between the appellant
and the complainant was without complainant’s consent. The appellant’s alternative
submission was that even if it were accepted that the complainant did not consent to
sexual intercourse, the state did not prove the appellant’s mens rea to justify his
conviction. It was further submitted that appellant had no evidential burden to testify
because of the reasonable doubt besetting the case of the state.
[19] The state contended that it was apparent from the evidence of the complainant
that she never consented to sexual intercourse and that the appellant had mens rea
to rape her. Appellant forcefully pushed her head towards his penis and told her to
perform fellatio on him. She told him she did not know how to perform fellatio, and
he told her that he would teach her. She then proceeded to perform fellatio on him.
She displayed her disapproval by telling him that she did not know how to perform
fellatio while backing away. She lied to the appellant saying that the child was crying
in order to escape. She put her clothes back on and went to the room in which the
child was sleeping and lay next to the child. The appellant followed her to that room
in which she was now sleeping with the child and tried to finger her again. She told
him not to do that in front of the child. He stopped and tried to finger her again but
she removed his hand and he then stopped and fell asleep. She, however, could not
fall asleep.
[20] In the morning she was withdrawn and did not speak with the appellant because
she was confused because of what had happened. When the child’s mother phoned
her as she was preparing the child for school, the appellant asked her not to tell her
he was still there. After the appellant left, she sent a text message to her friend
Manyano asking him if it was rape when she allowed someone to do something to
her which she did not consent to and her friend said that it was rape. That friend
came over to the house, and she reported the rape to him and ultimately a rape case
was opened with the police that very morning.
[21] It is common ground that sexual intercourse did take place between the
appellant and the complainant. This case turns on whether or not, on the evidence
before the court a quo , such sexual intercourse took place with the complainant’s
consent. Not surprisingly, this issue tends to be more difficult especially in situations
in which there is a relationship or familiarity between a complainant and the alleged
assailant. The issue of consent is central in most rape cases. Its centrality flows
directly from the Sexual Offences Act2 which, in section 3 defines rape as follows:
“Any person (A) who unlawfully and intentionally commits an act of sexual
penetration with a complainant (‘B’) without the consent of B, is guilty of the offence
of rape.”
[22] Put simply, any sexual penetration of one person by another without the other
person’s consent is rape. Sexual penetration is defined in the Sexual Offences Act
as including “any act which causes penetration to any extent whatsoever by – (a) the
genital organs of one person into or beyond the genital organs, anus, or mouth of
another person; (b) any other part of the body of one person or any object, including
any part of the body of an animal, into or beyond the genital organs or anus of
another person; or (c) the genital organs of an animal, into or beyond the mouth of
another person.”
[23] The complainant’s evidence, considered as a whole, together with her actions
after the incident are inconsistent with her having willingly engaged in sexual
intercourse with the appellant. Complainant’s evidence struck me as that of
someone who did not harbour any anger against the appellant to the point of lying for
2 32 of 2007.
purposes of ensuring the conviction of the appellant. On the contrary, it appears that
she was determined to and did give as correct recollection of events as possible
while giving the benefit of doubt in some instances to the appellant. She openly
gave aspects of her evidence which were clearly to the benefit of the appellant in her
effort of being candid with the court and even conceding that in some instances she
did not express an unequivocal no and gave excuses instead of saying no to what
appellant was doing. This is exactly what led to the acquittal of the appellant on the
second count of rape relating to oral sex. This is to her credit as an honest and
credible witness. What was clear throughout though was that she did not expect the
appellant to ignore her various intimations and ways of saying no to him which were
by no means unclear indications of discomfort about what was taking place and her
attempts to move away and leave the room at some stages of their encounter. All
these considered tog ether which she took at various times and stages were not
headed by the appellant.
[24] There is nothing in the complainant’s evidence to suggest that she consented to
sexual intercourse. At best for the appellant, she did not run away from the house in
which she was just with the appellant and nobody else except the one year old baby.
She also did not scream or try to reach for her phone to phone somebody. The idea
that the complainant should be faulted for not unequivocally saying no to all what
was done to her is wrong for many reasons. It is the kind of the unfortunately not so
uncommon mindset of expecting victims of sexual assault to all respond in the same
way to acts of sexual violence. That is the expectation that a victim should vocally
say no, or scream or try to fight back, the expectation that all victims must verbalise
their refusal or disapproval and do so in the same way. The absence of a vocalised
their refusal or disapproval and do so in the same way. The absence of a vocalised
objection to sexual intercourse on the part of a complainant, it tends to be argued,
point to or entitles the assailant to assume consent. Consent to sexual intercourse
cannot be assumed, it is either there or it is not there.
[25] In this case, no basis whatsoever was laid for any contention that there was
implied consent much less express consent. This would have required the appellant
to testify and candidly give to the court an explanation of his own understanding of
what the complainant did or did not do that would have led him to assume that there
was consent, express or implied. I may mention that it was never put to the
complainant that for whatever reason or for whatever she allegedly did, the appellant
understood her to be consenting. It was never put to her that the complainant said
or did anything herself as an alleged active participant to the sexual intercourse.
Instead, her alleged active participation seemed to be founded on no more than her
submissiveness to what were all unrelenting acts or actions of the appellant that took
over a period of time. It was never even alleged that the complainant’s consent was
ever sought or obtained and expressly or tacify granted for any of the things that
were done to her. It was never suggested that she did anything on the basis of
which it could reasonably be said that appellant was led to believe rightly or wrongly
that she consented to sexual intercourse.
[26] Consent in the context of sexual intercourse where a complainant and the
alleged rapist know each other and there was no violence or threats thereof
unfortunately is often misunderstood in the legal discourse. In my exposition of
consent, I can do no better than refer to the judgment of Erasmas AJA in SM3 in
which the Supreme Court of Appeal expressed itself as follows:
“The law requires further that consent be active, and therefore mere submission is
not sufficient. In R v Swiggelaar, Murray AJA commented as follows:
3 S v SM 2013 (2) SACR 111 (SCA) 120 d-g.
‘The authorities are clear upon the point that though the consent of a woman
may be gathered from her conduct, apart from her words, it is fallacious to
take the absence of resistance as per se proof of consent. Submission by
itself is no grant of consent, and if a man so intimidates a woman as to induce
her to abandon resistance and submit to intercourse to which she is unwilling,
he commits the crime of rape. All the circumstances must be taken into
account to determine whether passivity is proof of imp lied consent or whether
it is merely the abandonment of outward resistance which the woman, while
persisting in her objection to intercourse, is afraid to display or realises is
useless.’
While it follows that consent would encompass submission, the converse is not
always true. One has to have regard to the totality of facts in order to determine
whether acquiescence to certain sexual conduct also constitutes consent.”
[27] It should be emphasised that even to the extent that it could, be said that the
evidence of the complainant was unclear on certain aspects, it was never cogently
challenged. Furthermore, appellant made an informed choice after being giving an
opportunity to make the decision, as his attorney placed on record, not to give his
own version to explain himself candidly to the court. This is more so as someone
who, no doubt, should have been surprised by the rape charges being laid against
him by the compl ainant the very morning of the incident, if he believed he did not
rape the complainant. There is no evidence of him having sought to explain himself
to the complainant, the complainant’s friend for whom the complainant was looking
after the baby and who knew both of them. His own version of events to date,
remains buried in his belly despite his allegation that the sexual intercourse was with
complainant’s consent. Surprisingly he elected not to back that up with any evidence
whatsoever. I say regretta bly because the court a quo was denied an opportunity to
whatsoever. I say regretta bly because the court a quo was denied an opportunity to
weigh any evidence he could have given evidence, consider his credibility as a
witness and indeed make an assessment of the entirety of the factual matrix.
[28] This has to be juxtaposed amongst other evidence with the evidence of the
complainant that when the baby’s mother phoned that morning, she could tell that
she was not okay. The appellant, for some reason which he never sought to explain
nor did he challenge that evidence, indicated to the complainant who was talking
over the phone with the baby’s mother that she should not tell her that he was still
there. That evidence was also not challenged. The complainant sending a text to
his friend, Manyano s eeking another person’s understanding of what had happened
to her in circumstances in which she was clearly blaming herself for allowing certain
things to happen thinking that they would not escalate to non -consensual sexual
intercourse. The complainant ultimately laying rape charges against the appellant
the very morning after the incident but in its entirety. All of this evidence considered
together with the rest of the complainant’s evidence, not as individual
compartmentalised pieces of evidence, is c onsistent with the complainant having
been raped by the appellant who knew full well that he did not have complainant’s
consent.
[29] The contention that appellant lacked mens rea is stillborn. It is stillborn because
for it to have any chance of making any sense on the facts of this case, it would still
have necessitated the appellant to give evidence that would negate mens rea in light
of the clear, honest and credible evidence of the complainant pointing to the
contrary. The basis for the contention that appellant lacked mens rea is thrown into
the arena with no factual foundation. It seeks to suggest, without any basis, that t he
appellant must have understood the complainant to be consenting without him laying
the basis of that understanding. Mens rea is the state of the mind of the appellant
when he acted as he did. This required him to explain that which was in his mind
which could have negated an intention to engage in non -consensual sexual
intercourse with the complainant. This is important because in its very nature, for
consent to be a sustainable defence, it must have been given consciously and
voluntarily, either expressly or tacitly. This begs the question, absent evidence from
the appellant, what is it that the complainant did which would have led the appellant
to believe that she was giving her express consent or that she tacitly consented to
engage in sexual intercourse with him. The appellant presented no facts or evidence
before the court a quo which allegedly led him to believe that he was entitled to
engage in sexual intercourse with the complainant at all and to continue doing so
even when the complainant told him that he was hurting her.
[30] Z4, which was decided more than six decades ago, laid a very firm
jurisprudential foundation for a proper understanding of consent to sexual
intercourse and mens rea. The court stated this legal position which still obtains to
date as follows:
“Rape is a crime in which intention is an element; there must be an intention to have
unlawful carnal connection with a woman without her consent. That intention must
be proved as an essential element in the Crown case. If the accused believed that
the woman had consented, the guilty intent or mens rea is lacking. The onus is on
the Crown to prove that the accused had the necessary mens rea and therefore the
Crown must prove that the accused knew that the woman had not consented.
Submission, of course, is not consent. That the accused had that knowledge may be
proved in many ways and proof that the accused was aware of the possibility of non -
consent and was reckless whether the woman consented or not will suffice, but the
necessary mens rea, like the other elements in the crime must be proved beyond all
reasonable doubt.”
[31] At worst for the state, on the evidence of the complainant, whose credibility was
not cogently assailed even when she was cross -examined quite rectlessly, intention
not cogently assailed even when she was cross -examined quite rectlessly, intention
at least in the form of dolus eventualis was established beyond reasonable doubt.
4 R v Z 1960 (1) 739 at 745 D-F
The evidence of the complainant actually proved a sequence of events that
established a well -planned and relentlessly pursued stratagem of having sexual
intercourse with the complainant, without violence or threats thereof. This was
designed to get the complainant into submission to what she clearly did not want to
do, engaging in sexual intercourse with the appellant. The complainant’s refusal or
reluctance to engage in sexual intercourse was clearly communicated to the
appellant a short while before the unlawful vaginal penetration by the appellant a
number of times and in various ways. Complainant gave him three reasons. First,
that she did not believe in sex before marriage. The appellant ignored the
complainant’s clearly communicated plans for her life as a young woman in this
regard. Second, complainant told appellant that she is a religious person, a
Christian who did not want to engage in sexual intercourse with someone she was
not married to contrary to her personal Christian conviction. Third , she told the
appellant when he inserted his hands under her pyjama pants that she would not like
to be touched there as she was not shaved. This was also ignored by the appellant
who went on to penetrate her vagina with his fingers against her will. It was also the
appellant who, without the complainant having done anything, climbed on top of her
and inserted his penis in her vagina. The complainant protested that it was painful.
True to his intention, appellant was undeterred and did nothing to allev iate the
complainant’s pain, choosing instead, to continue with his actions telling the
complainant that he would not stop until he would have ejaculated. He indeed did
exactly that, ignored the complainant’s protestation that he was hurting her and
continued with his unlawful actions. None of this evidence was gainsaid. These
were all actions of a direct intention to engage in sexual intercourse with the
complainant without her consent which was neither sought nor obtained either
expressly or tacitly.
[32] The legal position as articulated in Z5 was recently confirmed in Coko6 in which
Petse DP and Mabindla–Boqwana JA, unwriting jointly, a unanimous judgment of the
Supreme Court of Appeal said:
“As to the element of mens rea, it is beyond question that intention is a prerequisite
for a conviction as it is an integral part of the definition of the statutory crime of rape.
A must know that B had not consented to a penetrative sexual act. Therefore, the
accused may ‘escape [criminal] liability on the ground of absence of knowledge of
unlawfulness of his conduct if he [or she] believed the complainant … was in fact
consenting’. Even dolus eventualis suffices, which means that it is sufficient to prove
that A foresaw the possibility that B’s free and conscious consent might be lacking,
but nevertheless continues to act [recklessly] appreciating that [he/she may be acting
without her/his consent], therefore “gambling” as it were [with the security, bodily
integrity and dignity of the person organist whom the act is directed.”
The evidence of the complainant, with all the necessary caution applied as a single
witness, established the guilt of the appellant beyond reasonable doubt and he was
therefore correctly convicted. The appellant’s appeal against conviction must
therefore fail.
[33] Something more needs to be said about the choice of the appellant to testify and
challenge the complainant’s evidence. That decision, while it is an exercise of a
constitutional right to silence, great care needs to be taken in exercising it as an
accused person may first him or herself in an invidious position with no point of
return should the court conclude that the complainant’s evidence established the
guilt of the accused beyond reasonable doubt. In Boesak7 the Constitutional Court
5 Note 5 supra.
6 Director of Public Prosecution, Eastern Cape, Makhanda v Coko 2024 (2) SACR 113 (SCA) para 62.
7 S v Boesak 2001 (1) SA 912 (CC); 2001 (1) SACR 1 (CC)
expressed the principles and considerations involved in that choice better than I
would ever do. It said:
“[24] The right to remain silent has application at different stages of a criminal
prosecution. An arrested person is entitled to remain silent and may not be
compelled to make any confession or admission that could be used in evidence
against that person. It arises again at the trial stage when an accused has the
right to be presumed innocent, to remain silent, and not to testify during the
proceedings. The fact that an accused person is under no obligation to testify
does not mean that there are no con sequences attaching to a decision to
remain silent during the trial. If there is evidence calling for an answer, and an
accused person chooses to remain silent in the face of such evidence, a court
may well be entitled to conclude that the evidence is sufficient in the absence
of an explanation to prove the guilt of the accused. Whether such a conclusion
is justified will depend on the weight of the evidence. What is stated above is
consistent with the remarks of Madala J, writing for the Court, in Osman and
Another v Attorney-General, Transvaal, when he said the following:
‘Our legal system is an adversarial one. Once the prosecution has produced
evidence sufficient to establish a prima facie case, an accused who fails to
produce evidence to rebut that case is at risk. The failure to testify does not
relieve the prosecution of its duty to prove guilt beyond reasonable doubt. An
accused, however, always runs the risk that, absent any rebuttal, the
prosecution’s case may be sufficient to prove the elements of the offence.
The fact that an accused has to make such an electio n is not a breach of the
right to silence. If the right to silence were to be so interpreted, it would
destroy the fundamental nature of our adversarial system of criminal justice.’”
[34] This brings me to the appellant’s appeal against his sentence of 15 years
[34] This brings me to the appellant’s appeal against his sentence of 15 years
imprisonment. Bearing in mind the seriousness, the prevalence and the damaging
effect rape has on its victims and the fear engulfing society due to the fact that it
shows no signs of abating, I consider it appropriate to start with the words of our
former Chief Justice, Mohamed CJ when he, in my view, explained with the
eloquence only he could have done, what rape is and what it does to its victims. In
Chapman8, almost 30 years ago he said:
“Rape is a very serious offence, constituting as it does a humiliating, degrading and
brutal invasion of the privacy, the dignity and the person of the victim. The rights to
dignity, to privacy and the integrity of every person are basic to the ethos of the
Constitution and to any defensible civilization. Women in this country are entitled to
the protection of these rights. They have a legitimate claim to walk peacefully on the
streets, to enjoy their shopping and their entertainment, to go and come from work
and to enjoy the peace and tranquillity of their homes without fear, the apprehension
and the insecurity which constantly diminishes the quality and enjoyment of their
lives. The appellant showed no respect for their rights. He prowled the streets and
shopping malls and in short period of one week he raped three young women, who
were unknown to him. He deceptively pretended to care for them by giving them lifts
and then proceeded to rape them callously and brutally, after threatening them with a
knife. At no stage did he show the slightest remorse. The courts are under a duty to
send a clear message to other potential rapist and to the community: We are
determined to protect the equality, dignity and freedom of all women and we shall
show no mercy to those who seek to invade those rights.”
[35] The undisputed evidence of the complainant was that after she opened up to the
appellant telling him about a friend of hers who nearly sexually assaulted her, the
appellant offered her a hug. That was clearly pretentious of him as he went ahead
and did exactly what logic dictate appellant should have avoided and the
complainant hoped to avoid when she told him about her previous encounter with a
friend. Instead, it appears that the hug was offered as a ruse to lull her into a false
friend. Instead, it appears that the hug was offered as a ruse to lull her into a false
belief that she was in safe hands. He thereafter had sexually intercourse with her
with no compunction whatsoever about what he had just been told by the
complainant about her previous near sexual assault. While the appellant may not
have used violence or threats of violence as the assailant did in Chapman, the
8 S v Chapman 1997 (3) SA 34 (SCA).
difference between them is the manner in which the appellant acted to achieve the
same result, having sexual intercourse with the complainant without her consent.
[36] Cases of these types of rapes are not uncommon in our courts and one often
wonders how many victims of these types of sexual assaults do not report their
terrible experiences for fear that they might not be believed and would be subjected
to further humiliation in which their experiences and their feelings invalidated, and
being accused of feeling guilty for succumbing to their sexual nature as was done to
the complainant. They are usually asked why they did not say no as if keeping quiet
is the equiv alent of consent. This kind of attitude cannot and should not be
countenanced. Victims of rape are entitled to respond to the traumatic
circumstances they find themselves in true to who they are as human beings first
and as women in particular. They cannot and should not be expected to follow a
prescribed script of running away or screaming or verbally shouting no, failing which
they will be accused of lying about the what they went through.
[37] Even in mitigation of sentence, appellant elected not to testify, even if just to
express his regret about having unintentionally sexually violated the complainant as
it was claimed on his behalf. His personal circumstances on which it was argued on
appeal that the sentence imposed by the trial court was not one which a reasonable
court would have imposed, that it was disproportionate and therefore interference
with it was justified were the following. He was 22 years old with a grade 12 level of
education. He was unemployed, unmarried with no children. He came from a
stable family background with no history of criminal or problematic behaviour and
that he has no previous convictions. All of this was submitted to make a case for a
deviation from the prescribed minimum sentence of 15 years imprisonment. In the
deviation from the prescribed minimum sentence of 15 years imprisonment. In the
appellant’s heads of argument, nothing was said about the pain and trauma that
appellant went through as was the case when submissions were made before the
trial court. Instead, a lot was said about the complainant not having sustained any
major physical injuries.
[38] The submission about the absence of physical injuries is fundamentally flawed.
It is fundamentally flawed for two reasons mainly. First, it assumes that because a
victim of rape did not sustain physical injuries, no harm was done to her or him. In
this case it was the complainant’s evidence that subsequent to the incident she
stopped going to church. She would have nightmares and would just be angry with
her parents. She became more reserved and more self -aware and does not trust
men anymore. The depth of the trauma leading to these manifestations may never
be known but the consequences can never be denied. Surely it cannot be
suggested that a rape victim who has no physical injuries did not suffer any unknown
psychological effects subsequent to the horrifying experience of being violated by
being raped. Secondly, it is fundamentally flawed because it ignores the fact that the
legislature, in its wisdom, enacted that there are certain factors which it determined
that they shall not constitute substantial and compelling circumstances justifying a
departure from a prescribed minimum sentence and therefore the imposition of a
lesser sentence.
[39] Section 51(3) (aA) of the Criminal Law Amendment Act9 reads:
“When imposing a sentence in respect of the offence of rape the following shall not
constitute substantial and compelling circumstances justifying the imposition of a lesser
sentence:
(i) The complainant’s previous sexual history,
(ii) an apparent lack of physical injury to the complainant,
9 Criminal Law Amendment Act 105 of 1997.
(iii) an accused person’s cultural or religious belief about rape; or
(iv) any relationship between the accused person and the complainant prior to the
offence being committed.)”
It cannot therefore be correctly submitted that the court sentencing the appellant
should also have, while it may be relevant, taken into consideration the fact that the
complainant had had no physical injuries on the face of the legislature’s injunction
that that shall not be a consideration as a substantial and compelling circumstance
for deviation from a prescribed minimum sentence.
[40] There is no basis for this Court to, an appeal, interfere with the discretion of the
lower court on the facts of this case. It correctly found that the appellant failed to
establish substantial and compelling circumstances justifying a departure from the
prescribed minimum sentence of 15 years imprisonment. In Bogaards10 the
Constitutional Court restated the legal position at it relates to interference with the
discretion of the sentencing court as follows:
“Ordinarily, sentencing is within the discretion of the trial court. An appellate court’s
power to interfere with sentences imposed by courts below is circumscribed. It can
only do so where there has been an irregularity that results in a failure of justice; the
court below misdirected itself to such an extent that its decision on sentence is
vitiated; or the sentence is so disproportionate or shocking that no reasonable court
could have imposed it.”
[41] In the written submissions of the appellant the factors enumerated in Bogaards
were listed with no attempt at engaging with them or showing that they were present
or applied. This is hardly surprising because none of them is present or applicable.
No real basis was shown for this Court to, on appeal, interfere with the sentencing
discretion of the court a quo. Therefore, the appellant’s appeal against his sentence
of 15 years imprisonment must fail.
10 S v Bogaards 2013 (1) SACR 1 (CC) at page 14 d-e.
[42] In the result, the following order is issued.
1. The appeal against conviction is dismissed.
2. The appeal against sentence is dismissed.
________________________
M.S. JOLWANA
JUDGE OF THE HIGH COURT
I agree:
______________________
N. NTLAMA-MAKHANYA
ACTING JUDGE OF THE HIGH COURT
Appearances
Counsel for the appellant : D.P. Geldenhuys
Instructed by : Legal Aid South Africa
Makhanda
Counsel for the respondent: H. Mondliwa
Instructed by : Director of Public Prosecutions
Makhanda
Date heard : 25 February 2026
Date delivered : 17 June 2026