Fortuin v The State

The appellant, a member of SAPS, was convicted in the regional court of attempted rape and sentenced to four years imprisonment. Both the appellant and complainant were attending a course at SAPS Academy in Hammanskraal. On 2 June 2013 at about 23h30, the heavily intoxicated appellant knocked on the complainant's door at the female living quarters. When she opened the door, he entered, removed his jacket and slip-on shoes, and said he intended to sleep there. Despite her repeated requests to leave, he grabbed her by both upper arms, pushed her down on the bed, and while holding her down touched her breast with one hand over her clothes. The complainant yelled, fought back, and kneed him between the legs, after which he jumped up, grabbed his jacket and left. The incident lasted only a few seconds. The door remained open throughout. The appellant made no attempt to undress the complainant or expose his private parts. The regional court dismissed his application for leave to appeal against conviction and sentence. The high court granted leave to appeal against sentence only but refused leave regarding the conviction.

• Whether the high court should have granted leave to appeal against the conviction of attempted rape
• Whether there was a reasonable prospect of success on appeal against the conviction
• Whether the prosecution proved beyond reasonable doubt that the appellant had the intention to perform an act of penetration
• Whether the appellant had a 'finally formulated intention' to penetrate the complainant
• Whether on the evidence the appellant should have been convicted of sexual assault rather than attempted rape

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.

For a conviction of attempted rape under s 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, the prosecution must prove beyond reasonable doubt that the accused had a finally formulated intention to penetrate the complainant (applying R v B 1958 (1) SA 199 (A) and S v Du Plessis 1981 (3) SA 382 (A)). Where the incident is of very brief duration, the door remains open, the accused only touches the complainant's breast over clothing, and makes no attempt to undress the complainant or expose his own private parts, there may be a reasonable prospect of a finding that it was not proved beyond reasonable doubt that the accused's intention was aimed at penetration rather than sexual assault. Leave to appeal should be granted where there is a reasonable prospect of success on appeal (per Mdluli v S [2015] ZASCA 178).

The court observed that disposing of the appeal without oral hearing in terms of s 19(a) of the Superior Courts Act 10 of 2013 was appropriate where both parties agreed to this course and where a full hearing before the Supreme Court of Appeal would result in unnecessary employment of scarce judicial resources, unnecessary costs, and delay in the determination of the appeal. The court characterized the appellant's conduct as a 'drunken transgression' in the context of assessing his intention.

This case is significant in South African criminal law as it clarifies the evidentiary requirements and proof of intention necessary for a conviction of attempted rape as opposed to sexual assault. It illustrates the application of the established principles from R v B and S v Du Plessis requiring proof beyond reasonable doubt of a 'finally formulated intention' to penetrate for attempted rape. The case demonstrates that brief duration of an incident, absence of attempts to undress the victim or expose private parts, and the limited nature of the sexual contact may create reasonable doubt as to whether the accused intended penetration. The judgment also shows the Supreme Court of Appeal's willingness to dispose of appeals without oral hearing under s 19(a) of the Superior Courts Act where appropriate, to conserve judicial resources. It provides guidance on the distinction between attempted rape and sexual assault based on the accused's proven intention.