Mere presence during rape and appearing to approve thereof not sufficient to constitute liability as accomplice

S v PHETOE 2018 (1) SACR 593 (SCA)

Rape — Accomplice to — What constitutes — Mere presence during rape and appearing to approve thereof not sufficient to constitute liability as accomplice.

The appellant was convicted in the High Court of, inter alia, being an accomplice to rape. The evidence on which the conviction was based was that he, together with other men, had broken into the complainant’s home at night. He was present when the other men raped the complainant and her sister. When the complainant asked the appellant why they were doing that to them, he just laughed.

Held, that, for a conviction of being an accomplice to the crime of rape, the accused had to have done something to facilitate, assist or encourage the commission of the rape. In the present case, the complainant’s evidence did not disclose any assistance rendered by the appellant and his conduct accordingly did not amount to the aforesaid facilitation, assistance or encouragement. The fact that he laughed might be conduct that showed his approval of what was happening, but that was not enough to establish his liability as an accomplice. (See [15].) The appeal was upheld and the conviction of being an accomplice to rape was set aside.

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