Rape accused’s guilt “conclusively proven without any doubt” – Advocate Gerrie Nel

A recent groundbreaking judgment which firmly establishes the requirements for consent to sexual intercourse was the thrust of the argument that Isaac Andile Memese should be convicted of rape. Memese appeared in Somerset East Magistrates Court on Friday, where AfriForum’s Private Prosecution Unit made its closing argument. The unit represents Celeste Gouws, who approached it after the National Prosecuting Authority (NPA) declined to prosecute Memese, despite compelling evidence against him.

“Rape is an utterly despicable, selfish and horrendous crime. It gains nothing for the perpetrator, save for fleeting gratification, and yet inflicts lasting emotional trauma and, often, physical scars on the victim,” said Advocate Gerrie Nel, quoting from the Supreme Court of Appeal’s judgment in the Coko matter, which he described as brilliant.

Memese allegedly raped Gouws at her guesthouse on 2 September 2017. Surveillance footage presented in court as crucial evidence reveals how Memese and Gouws consumed alcohol together over several hours. She, however, asked a friend to come over to the house when she became suspicious of Memese’s behaviour. At one point, Memese emerges from the bathroom with a glass of wine and swaps it with Gouws’. Her state of sobriety deteriorates significantly thereafter. The prosecution argued that Memese spiked her drink.

Later, Memese is seen leaving the house with Gouws’ friend, but he returns shortly afterward. The surveillance footage depicts Memese leading the heavily intoxicated Gouws from the kitchen to the bedroom, where he is accused of raping her.

Nel argued that Memese’s defence never questioned Gouws’ state of sobriety. “As far as consent is concerned, the Supreme Court of Appeal found that consent is defined as voluntary and uncoerced agreement to have penetrative sex. Consent is excluded where the complainant is in an altered state of consciousness, including under the influence of any medicine, drug or alcohol. It’s excluded. It doesn’t exist. There’s no chance of it. We say the court is bound to accept that the accused understood that Gouws was severely intoxicated and in no state of mind to consent or agree to penetrative sex.”

Nel also argued that Memese’s decision not to testify means the court does not have his version of events to consider. “The accused did that despite his defence that he had sexual intercourse with the complainant with her consent, thereby failing to prove any evidence to corroborate his defence of consent. There is no evidence before this court indicating the when, where and how he obtained consent.”

Nel then cited the Coko judgement once more, and reminded the court of Gouws’ neighbour, who heard a woman screaming out on the night of the alleged rape for someone to “please stop”. “If there’s consent to penetrative sex and during the penetrative sex, the consent is withdrawn, to proceed is rape. That’s what the court said.”

During defence advocate Mike Maseti’s argument, he did not address the critical question of consent, instead he argued that the video footage was tampered with, a claim not supported by his own expert witness; that it showed Gouws flirting and drinking alcohol with Memese; and that the criminal case was in fact orchestrated by one of Gouws’ friends.

Nel concluded by describing the private prosecution witnesses Gavin Donnally, Marita de Lange and Dafrey Trotskie as community heroes for their support of the victim and their resolve to testify in the matter. “This is one of those rare occasions in a prosecutor’s career when the argument is not that the prosecution proved a matter beyond reasonable doubt, but that the accused’s guilt was conclusively proven without any doubt.”

Barry Bateman, spokesperson for the unit, said “in spite of all the available evidence the NPA decided not to prosecute, stating that Memese ‘saw an opportunity and used it’.”

The matter was postponed to 26 November for judgment.