The State v Sibusiso Mbali

The accused was charged with raping a 17-year-old complainant on 27 December 2023 at the home of her boyfriend, Athenkosi Tshete, and with trafficking in persons under the Prevention and Combatting of Trafficking in Persons Act 7 of 2013. Tshete had earlier assaulted and raped the complainant and forced another man to rape her. Later that night, Tshete offered the complainant to the accused for sex in exchange for money. The accused paid Tshete R12. The complainant alleged that the accused raped her without consent and that she resisted. The accused maintained that the complainant explicitly consented to transactional sex. After the encounter, the accused assisted the complainant, took her to his home for safety, cared for her injuries, chased Tshete away when he came looking for her, and accompanied her to a clinic the next day, where rape allegations were reported.

The accused was found not guilty on the charge of rape and not guilty on the charge of trafficking in persons.

The case illustrates the application of consent and mens rea principles in rape prosecutions, particularly in the context of transactional sex and third-party coercion. It reaffirms that submission induced by another person does not automatically establish that an accused foresaw non-consent, and that a bona fide and reasonable mistaken belief in consent may exclude criminal liability. It also clarifies the dependency of trafficking charges for sexual exploitation on proof of an underlying sexual offence.