Fortuin v S (838/2017) [2018] ZASCA 5 (13 February 2018)

Fortuin v S (838/2017) [2018] ZASCA 5 (13 February 2018)

The Supreme Court of Appeal found that the evidence did not conclusively establish beyond reasonable doubt that the appellant intended to penetrate the complainant. The incident was brief, the door remained open, and there was no attempt to undress the complainant or expose the appellant's private parts. These factors create a reasonable prospect that the appellant's conduct amounted to sexual assault rather than attempted rape. Consequently, the high court should have granted leave to appeal against the conviction, as there is a reasonable prospect of success on appeal.

Citation
[2018] ZASCA 5
Parties
Appellant: Christopher Fortuin; Respondent: The State
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
13 February 2018
Case Number
838/2017
Procedural Posture
Criminal Appeal / Appeal Against Refusal of Leave to Appeal Conviction
Outcome
Appeal upheld; leave to appeal against conviction granted.
Judges
Shongwe, Saldulker, Dambuza, Van der Merwe, Pillay
Legal Topics
Attempted Rape, Intention to Penetrate, Leave to Appeal, Sexual Offences Act
Criminal Law Attempted Rape Intention to Penetrate Leave to Appeal Sexual Offences Act

Case Brief

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Parties

Christopher Fortuin

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Refusal of Leave to Appeal Conviction

Legal Issues

  1. 1 Whether the high court should have granted leave to appeal against the conviction of attempted rape.
  2. 2 Whether there is a reasonable prospect of success that the intention to penetrate was not established beyond reasonable doubt.

Ratio Decidendi

The Supreme Court of Appeal found that the evidence did not conclusively establish beyond reasonable doubt that the appellant intended to penetrate the complainant. The incident was brief, the door remained open, and there was no attempt to undress the complainant or expose the appellant's private parts. These factors create a reasonable prospect that the appellant's conduct amounted to sexual assault rather than attempted rape. Consequently, the high court should have granted leave to appeal against the conviction, as there is a reasonable prospect of success on appeal.

Court Disposition

Appeal upheld; leave to appeal against conviction granted.

Orders

  • The appeal is upheld.
  • Leave is granted to the appellant to appeal to the Gauteng Division of the High Court, Pretoria against his conviction of attempted rape.