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[2018] ZASCA 5
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Fortuin v S (838/2017) [2018] ZASCA 5 (13 February 2018)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
reportable
Case
No: 838/2017
In
the matter between:
CHRISTOPHER
FORTUIN
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Fortuin
v S
(838/2017)
[2018] ZASCA 5
(13 February 2018)
Coram:
Shongwe ADP and
Saldulker, Dambuza and Van der Merwe JJA and Pillay AJA
Heard:
No oral hearing in
terms of
s 19(a)
of the
Superior Courts Act 10 of 2013
.
Delivered:
13 February 2018
Summary:
Appeal –
whether the high court should have granted leave to appeal to it
against a conviction of attempted rape – reasonable
prospect of
a finding that the intention to penetrate was not established beyond
reasonable doubt – appropriate to dispose
of appeal without
oral hearing – appeal upheld and leave granted to appeal to
high court.
ORDER
On
appeal from:
Gauteng
Division of the High Court, Pretoria (Kubushi J and Chesiwe AJ as
court of appeal):
1
The appeal is upheld.
2
Leave is granted to the appellant to appeal to the Gauteng Division
of the High Court, Pretoria against his conviction of attempted
rape.
JUDGMENT
Van
der Merwe JA (Shongwe ADP and Saldulker and Dambuza JJA and Pillay
AJA concurring):
[1]
The appellant was convicted in the regional court of attempted rape
in contravention of
s 3
of the
Criminal Law (Sexual Offences and
Related Matters) Amendment Act 32 of 2007
. He was sentenced to four
years imprisonment. The regional court dismissed his application for
leave to appeal against the conviction
and sentence. On petition to
it, the Gauteng Division of the High Court, Pretoria (Kubushi J and
Chesiwe AJ) granted leave to appeal
against the sentence but refused
leave to appeal against the conviction. This court subsequently
granted special leave to appeal
to the appellant in respect of the
conviction.
[2]
It follows that the issue before this court is whether the high court
should have granted the appellant leave to appeal to it
against the
conviction as well. The test is whether the appellant has shown a
reasonable prospect of success on appeal against
conviction.
See
Mdluli v S
[2015]
ZASCA 178
para 3.
[3]
The parties were requested to indicate whether the appeal should be
disposed of without the hearing of oral argument in terms
of
s 19(a)
of the
Superior Courts Act 10 of 2013
. Both parties submitted that
that course be followed. I agree. For the reasons that follow, leave
to appeal to the high court against
the conviction must be granted. A
hearing before this court would result in unnecessary employment of
scarce judicial resources,
unnecessary costs and delay of the
determination of the appeal.
[4]
The regional court accepted the evidence of the complainant and
rejected the denial thereof by the appellant as false beyond
reasonable doubt. These findings are not challenged before us. The
argument on behalf of the appellant is that on the evidence
of the
complainant, he should have been convicted of sexual assault in
contravention of
s 5(1)
of Act 32 of 2007.
[5]
The relevant evidence of the complainant may be summarised as
follows. The appellant and the complainant were both members of
the
South African Police Service (SAPS). At the relevant time they both
attended a course at the SAPS Academy in Hammanskraal.
For this
purpose, the complainant stayed at the female living quarters at the
academy. At about 23h30 on Sunday 2 June 2013, the
complainant heard
a knock on her door. She opened the door, thinking that it was
a friend who had returned after the weekend.
However, it was the
appellant that stood in front of the door. He was strongly
intoxicated. He entered the room and took off his
jacket and slip-on
shoes. He said that he intended to sleep there. The complainant
repeatedly asked the appellant to leave.
However, he grabbed her by
both her upper arms and pushed her down on the bed. Whilst holding
her down he touched her breast with
one hand. The complainant yelled
and fought and kicked the appellant between his legs with her knee,
whereafter he jumped up, grabbed
his jacket and left.
[6]
In order to secure a conviction of attempted rape it was incumbent on
the prosecution to prove beyond reasonable doubt that
the appellant
intended to perform an act of penetration. See
R
v B
1958 (1) SA 199
(A) at 203H-204D. In
accordance with
S v Du Plessis
1981
(3) SA 382
(A) at 400B-D, the appellant must have had a ‘finally
formulated intention’ to penetrate the complainant. The
essential
question, therefore, is whether there is a reasonable
prospect of a finding by the high court that there is a reasonable
doubt
as to whether the appellant intended to penetrate the
complainant, rather than to commit sexual assault.
[7]
The incident lasted for a few seconds. The door of the complainant’s
room remained open at all times. The appellant touched
the
complainant’s breast over her clothes and made no attempt to
undress her or to expose his private parts. In my view there
is a
reasonable prospect of a finding that it was not proved beyond
reasonable doubt that the appellant’s drunken transgression
was
aimed at penetration.
[8]
In the result the following order is made:
1
The appeal is upheld.
2
Leave is granted to the appellant to appeal to the Gauteng Division
of the High Court, Pretoria against his conviction of attempted
rape.
__________________
C
H G van der Merwe
Judge
of Appeal
Appearances:
For
Appellant:
J O van Schalkwyk
Instructed
by:
BDK Attorneys (David H
Botha, Du Plessis & Kruger Incorporated), Johannesburg
Symington
& De Kok, Bloemfontein
For
Respondent:
S Scheepers
Instructed
by:
The Director of Public
Prosecutions, Johannesburg
The
Director of Public Prosecutions, Bloemfontein