Van der Bank v S (245/2015) [2016] ZASCA 10 (9 March 2016)

Van der Bank v S (245/2015) [2016] ZASCA 10 (9 March 2016)

The Supreme Court of Appeal held that, even if the complainant's evidence was inadmissible due to the intermediary issue, the remaining evidence, including expert testimony and admissions by the appellant, was sufficient to sustain the convictions. The appellant admitted to sexual intercourse and indecent assault with the complainant, whose intellectual capacity was far below her biological age. Expert evidence established that the complainant was incapable of giving informed consent. The appellant was aware of her mental impairment and must have known she could not legally consent. The defence of consent was rejected, and the convictions for rape and indecent assault were upheld.

Citation
[2016] ZASCA 10
Parties
Appellant: Daniël Johannes Stephanus van der Bank; Respondent: The State
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
9 March 2016
Case Number
245/2015
Procedural Posture
Criminal Appeal / Appeal From Gauteng Division, Pretoria, Against Convictions for Rape and Indecent Assault
Outcome
Appeal dismissed; convictions for rape and indecent assault confirmed.
Judges
Majiedt, Pillay, Fourie, Victor, Baartman
Legal Topics
Rape, Consent in Criminal Law, Mental Capacity, Admissibility of Evidence, Intermediary Testimony
Criminal Law Rape Consent in Criminal Law Mental Capacity Admissibility of Evidence Intermediary Testimony

Case Brief

Summary, issues, holding and outcome

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Parties

Daniël Johannes Stephanus van der Bank

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal From Gauteng Division, Pretoria, Against Convictions for Rape and Indecent Assault

Legal Issues

  1. 1 Whether the complainant's evidence was inadmissible because it was given through an intermediary contrary to s 170A of the Criminal Procedure Act as applicable at the time.
  2. 2 Whether, excluding the complainant's evidence, the remaining evidence was sufficient to sustain the convictions.
  3. 3 Whether the complainant was capable of giving valid consent to sexual intercourse and indecent assault.

Ratio Decidendi

The Supreme Court of Appeal held that, even if the complainant's evidence was inadmissible due to the intermediary issue, the remaining evidence, including expert testimony and admissions by the appellant, was sufficient to sustain the convictions. The appellant admitted to sexual intercourse and indecent assault with the complainant, whose intellectual capacity was far below her biological age. Expert evidence established that the complainant was incapable of giving informed consent. The appellant was aware of her mental impairment and must have known she could not legally consent. The defence of consent was rejected, and the convictions for rape and indecent assault were upheld.

Court Disposition

Appeal dismissed; convictions for rape and indecent assault confirmed.

Orders

  • The appeal is dismissed.