S v Coetzee

• Jurisdiction: South Africa
• Judge: Koen J
• Judgment Date: 24 June 2008
• Docket Number: AR348/07
• Court: Natal Provincial Division
• Hearing Date: 05 June 2008
• Citation: 2008 JDR 0803 (N)

Koen J:

[1] The appellant was convicted in the court a quo of four counts of indecent assault and two counts of crimen iniuria:

(a)

Count 1 relates to the indecent assault of Natasha Lamprecht ("Natasha"), at the time a 19 year old female, during August 2002, by rubbing/caressing her on her thigh and touching her vagina with his fingers and smacking her on her bottom;

(b)

Count 3 relates to the indecent assault of Adele Taljaard ("Adele"), at the time a 16 year old female, on or about 21 January 2003, by forcing her to sit on his thighs and then touching and groping her vagina;

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(c)

Count 4 relates to the indecent assault of Adele on or about 22 January 2003 by rolling up her skirt over her thighs exposing her underwear and thighs;

(d)

Count 5 is one of crimen iniuria arising from the appellant having questioned Adele on or about 21 January 2003 about her sexual relationship with her boyfriend and her preferences in regard to certain sexual acts;

(e)

Count 8 relates to the indecent assault of Lee Ann van Rensburg ("Lee Ann"), at the time a 21 year old female, during or about January 2005, by rubbing/squeezing her thighs, rubbing her vagina with his fingers, exposing her breasts by pulling open her blouse and lifting her skirt causing her underwear to become exposed;

(f)

Count 9 is one of crimen iniuria arising from the appellant asking Lee Ann about her sexual relationship with her boyfriend and telling her that he wanted her to see how nice her breasts were.

In respect of each of the counts of indecent assault, the appellant was sentenced to "six (6) years imprisonment, two (2) years of which were suspended for four (4) years on condition that he was not again

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convicted of indecent assault and crimen iniuria during the period of suspension".

In respect of each of the counts of crimen iniuria, the appellant was sentenced to "eighteen (18) months imprisonment, half of which was suspended for three (3) years on condition that he was not again convicted of crimen iniuria and indecent assault during the period of suspension".

It was ordered that the sentences imposed on counts 1,3,4,5 and 9 run concurrently with each other and with the sentence imposed on count 8.

The appellant appeals with the leave of the Court a quo against the convictions and sentences imposed.

[2] The learned magistrate delivered a comprehensive and considered judgment in which he accurately summarised the material evidence of the various witnesses. I do not intend repeating or summarizing the evidence or the magistrate's reasons for coming to the conclusions he did, in this judgment. This judgment deals only with the arguments advanced on appeal. It should be read in conjunction with and as supplementary to the judgment of the court a quo.

[3] On appeal the primary attack on the magistrate's judgment convicting the appellant is that the evidence implicating him on the

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various charges is in each instance that of the individual complainants, who are single witnesses in relation to those charges, that their evidence was not approached with sufficient caution and that had that been done, their evidence would have been found to be insufficiently reliable to sustain the convictions.

Mr Marais SC, who appeared on behalf of the appellant, was also critical of the time which elapsed before the conduct complained of by Natasha and Adele was elevated to the level of a formal complaint, which was only after the events involving Lee Ann became known, that is during or about February 2005. Accordingly, he submits that with the exception of Lee Ann (counts 8 and 9) there was no "hue and cry" raised by Natasha and Adele and that their evidence must thus be approached with considerable "circumspection" as they may have been "swept along" in the gulf of allegations against the appellant. There is, of course, no longer any cautionary rule which applies in sexual offences. The onus is simply that the State has to prove the guilt of an accused beyond a reasonable doubt – see S v M 1999(2) SACR 548 SCA at 554 – 555.

[4] The need for circumspection in approaching the evidence of the complainants, it was argued, arises from the following facts:

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(a)

the complainants, more particularly Natasha and Lee Ann, were no longer of very tender years, but maturing adults, whom one might expect not to be paralysed by shock and stunned when the appellant allegedly acted in the way he did, but who would, in no uncertain terms voice and indicate their strongest disapproval of the appellant's alleged conduct;

(b)

that it was strange that Natasha and Adele had not previously complained of the appellant's conduct shortly after it occurred;

(c)

that there was a faction in the appellant's church community which wished to get rid of the appellant, and that the charges or details thereof might therefore have been contrived;

(d)

that after the complaint by Lee Ann had been made public, Natasha and Adele might have become influenced by and caught up in the wave of accusations against the appellant and they either deliberately or inadvertently over-stated the seriousness and degree of physical contact the appellant engaged in with them.

The judgment of the learned magistrate has dealt with the thrust of the above argument either expressly or by necessary implication. I will however deal with the specific submissions made by Mr Marais in respect of each of the complainants.

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[5] In respect of Natasha, Mr Marais drew attention to an incident recorded on the record, which he submitted suggests possible undue influencing of her testimony, where the learned magistrate during her evidence remarked:

"I am seeing that you have a tendency of talking to the witness. Are you talking to the witness? I think I noticed that and I think I need to say something about it that you should not talk to the witness. The witness is alone in the box and you should not be coached by anybody – okay."

It is not clear from a reading of the record whom this comment was addressed to. If anything, the prosecutor in the next line comments "just a friend from looking at the stenographer". There certainly does not appear to be any basis to conclude, from that exchange alone, that Natasha was unduly influenced to give the evidence she did.

[6] It was also suggested that Natasha was neither an impressive nor unimpressive witness, but that a closer examination of her evidence reveals indications of dishonesty, improbabilities, inconsistencies and other features of concern. It was specifically submitted that at 19 years of age, she was virtually an adult capable of independent thought and action, and that her response to the advances by the appellant, by sitting unmoved and stunned during the entire incident, is improbable. It was also submitted that it was highly improbable that the appellant would have behaved in the fashion alleged, with his wife in the same house, more so where she at one stage walked into the study to fetch

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something. More details and particulars of the extent of the indecent assault also only came to the fore as time passed. Mr Marais was also critical of the fact that initially Natasha claimed she could not remember whether or not she had told her boyfriend Willie de Beer that the appellant had touched her vagina. Earlier she had claimed that she had in fact told Willie that the appellant had touched her. Willie de Beer's evidence was that Natasha had not said that the appellant touched her on her vagina but just that he had touched her. At the disciplinary hearing at the Church, she had made no reference to the appellant touching her vagina. She admitted also that she had also not told the Police the full story when first approached. She also did not tell her parents everything, nor Pastor van Niekerk when he was investigating the complaint on behalf of the Church against the appellant. She first made a disclosure to her parents on the night when the Police took down her statement, which was some years after the event. It was also contended that the true factual position might have been distorted by the experiences of Natasha's mother who had apparently experienced some form of abuse, but who had not taken it further. This submission was based upon a comment by Natasha that:

"Because my mother understands, because she also went through it, but she did not open her mouth because she was too scared …"

On the basis of that statement it was suggested that Natasha, having made reference to an otherwise innocent gesture on the part of the

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appellant became compelled to go with the flow and advance the version she did in evidence, falsely implicating the appellant in the commission of the crime. Further criticisms raised are that on Natasha's version the appellant not only committed the acts with his wife present in the house, but that he felt sufficiently comfortable to commit these acts without locking the door (there being a dispute as to whether the door to the study was open or closed). It was also submitted that if Natasha was telling the truth, it is improbable that she would have visited the appellant...