TUTORIAL IN RESPECT OF 12.

2 SEXUAL OFFENCES

QUESTION 1

SET OF FACTS:

A (16 year old girl) was walking home from school when a car stopped next to her.
The driver called her over and she naively thought the driver was lost and needed
directions. She was grabbed by one of the 4 occupants of the car. They took her to a
deserted open field where they allegedly raped her.

Answer the following questions regarding the given set of facts:

1. Which legislation governs the set of facts?

Regarding the given legislation, answer the following questions:
2. Which ‘new’ crimes have been created?
3. How does the act protect a victim of a sexual offence?
4. Discuss rape with reference to case law, namely Seedat or Tshabalala or Malaza.
5. Very briefly explain the legal position regarding the administration of post exposure
prophylaxis (PEP) and the compulsory HIV testing of the alleged accused as outlined in
chapter 5 of the Act. In your answer refer to the constitutional rights of the accused: the
testing infringes the right to privacy (section 10), the right of security of the body of the
accused (section 12), the right to dignity of the accused (section 14) as well as the right
of the accused to be assumed innocent until proven guilty (section 35).
6. Give a very brief outline of the position from the moment a crime has been committed to
the judgement.
7. Which sentence may be imposed if the accused is convicted?
8. Give the 6 categories of sexual offences and indicate under which category (categories)
the rape in this set of facts resort.
9. Do you think there should be national register for sexual offenders? Refer very briefly to
chapter 6 of the Act in your answer.
10. Give your own motivated opinion regarding the following:
o Do you think that rape is a problem in our society or is it an isolated incidence?
o Do you think the legal system protects the victim sufficiently against ‘secondary
victimization’?
 o Do you think gender influences the way sexual offences are perceived and dealt with?
11. Define the legal position where a spouse rapes the other spouse.
12. Assume the victim was killed by one of the 4 accused. The prosecutor charges all 4 for
the common law crime, murder of A. The defence objects to the prosecution of all 4
accused and states that the specific accused who had killed her, should be charged for
murder and not all 4. Discuss with reference to case law.
Ø You may consult chapter 8 again.
v As indicated earlier, more than one crime may be committed.
13. Assume one of the accused states that he was never involved in the rape but held the
victim while the others raped her. What type of participant was he and how will this
allegation affect his conviction to rape?
14. Assume the girlfriend of one the accused saw that his clothes were covered in blood. She
confronted him and he told her that he had been the ‘innocent bystander’ at a scene where
a crime was committed. She burnt the clothes but confessed to her mother that she had
her doubts regarding his ‘innocence’. Discuss her legal position by referring to the
following in your answer:
14.1 Did she commit a crime by burning the clothes?
14.2 Did she have a legal duty to disclose to the police her suspicion regarding the alleged
crime?
_________________________________________________________________________
QUESTION 2
• Regarding S v Malaza Case number A235/2018 (judgement delivered on 31 July 2020)
answer the following questions pertaining to the majority judgement:
a) Discuss the relevance of charging the accused with one charge of rape but multiple
penetrations or for example two counts? Refer to above-given case and legislation.
b) May an accused be charged with multiple charges (counts) at the start of the trial or is it
prohibited by the rule against multiple convictions?
o See the reference to the following cases: Seedat (relevant in respect of restorative justice)
and Tshabalala (relevant in respect of common purpose to commit rape).

• Regarding Tshabalala case (referred to at chapter 8):

i. Accused A raped the complainant while B was making lewd comments. Both A and B
are charged for rape. Discuss.
ii. Is rape a conduct crime (crime of instrumentality) or not? The position changed in
December 2019.
__________________________________________________________________________