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