Fortuin v The State

The appellant, a member of the South African Police Service, was convicted in the regional court of attempted rape under s 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 and sentenced to four years’ imprisonment. The conviction arose from an incident at the SAPS Academy in Hammanskraal where, late at night, the intoxicated appellant entered the complainant’s room, pushed her onto the bed, held her down, and touched her breast over her clothing. The complainant resisted and kicked him, after which he left. The regional court refused leave to appeal against conviction and sentence. On petition, the High Court granted leave to appeal against sentence only and refused leave against conviction. The appellant obtained special leave to appeal to the Supreme Court of Appeal on whether leave to appeal against conviction should have been granted.

The appeal was upheld and leave was granted to the appellant to appeal to the Gauteng Division of the High Court, Pretoria against his conviction of attempted rape.

The case reaffirms the strict requirements for a conviction of attempted rape in South African law, particularly the need to prove a finally formulated intention to penetrate. It also illustrates the threshold for granting leave to appeal and clarifies that conduct amounting to sexual assault does not automatically justify a conviction for attempted rape.