S v Coetzee

• Jurisdiction: South Africa
• Judge: Mpati P, Mthiyane JA and Mhlantla JA
• Judgment Date: 30 September 2009
• Citation: 2010 (1) SACR 176 (SCA)
• Docket Number: 502/2008
• Hearing Date: 31 August 2009
• Counsel: J Marais SC for the appellant. PC Bezuidenhout SC for the State.
• Court: Supreme Court of Appeal

Mhlantla JA:

[1] The appellant was convicted in the regional court, Richards Bay, on four counts of indecent assault and two counts of crimen injuria. He was G sentenced to an effective term of four years' imprisonment. An appeal against conviction and sentence was dismissed by the Pietermaritzburg High Court (Koen J, Gorven AJ concurring). The present appeal is against sentence only and is before us with the leave of the court below.

[2] The essence of the attack on the regional magistrate's decision on H appeal is that he misdirected himself or failed to properly exercise his discretion in that the sentence he imposed is excessive and induces a sense of shock.

[3] The facts relevant to sentence are briefly the following. The appellant I was employed as a pastor. All the complainants and their parents were members of the appellant's church. The appellant also provided counselling sessions to members of his church. There was, however, a dispute as to whether the constitution of the church permitted him to do so. A youth pastor, Mr Francois van Niekerk, testified that the appellant was not entitled to conduct counselling sessions. The parents of two of the J

Mhlantla JA

A complainants had nevertheless requested the appellant to provide counselling to them. The incidents forming the subject of the appeal occurred during the period between August 2002 and January 2005.

[4] The first incident, being count 1, occurred in August 2002 and involved Ms NL, who was then 19 years old. Her mother had discovered B a diary which revealed that NL had begun to have sexual relations with her boyfriend. Her parents, probably disapproving of what was going on, arranged for NL to consult the appellant. The counselling session took place in the appellant's house in his study.

[5] The appellant's wife was present in the house when he indecently C assaulted NL. The counselling session commenced with what appeared to be a normal discussion. Out of the blue the appellant began to stroke her leg, moving his hands up and down, and then rubbed her thigh. Despite her objection, he pulled up her dress and touched her vagina. He then asked her if she ever imagined having a relationship with a pastor D and began to ask searching questions about her sexual relations with her boyfriend. NL felt shocked, stunned and nervous and did not know what to do about this intrusion. She cried and felt traumatised. Soon after leaving the appellant's home, she reported the incident to her boyfriend.

[6] The second complainant, Ms AT, then 16 years old, was indecently E assaulted on two occasions. The relevant counts are counts 3, 4 and 5, respectively. AT's father had assaulted her for spending a weekend with her boyfriend. Because of the seriousness of the assault a social worker, to whom the matter had been reported, referred her to the appellant for counselling. The first incident occurred on 21 January 2003 at AT's home. She was alone with her brother when the appellant arrived for the F counselling session. He asked her brother to leave the house as he wanted to talk to her alone. The so-called counselling session commenced with him inspecting the weal marks on her legs. He then applied a cream high up on her thigh after he had pulled up her skirt. He touched her vagina saying that he was 'closing it'. These incidents relate to G count 3. The appellant forced her to sit on his lap. He asked her about her sexual relations with her boyfriend and about her preference in relation to sexual acts. He pushed open her blouse, as he put it, in order to see her brassiere. These incidents relate to count 5. He then asked her to come to his house the next day when he would discuss her case with H her parents.

[7] The incident in regard to count 4 occurred on 22 January 2003. AT arrived at the appellant's house and was met by his wife who showed her to the appellant's study. Her parents were not present. The appellant sat very close to her and lifted her skirt, thus exposing her underwear. She testified that she was shocked and felt ashamed. She left immediately I thereafter and later reported both incidents to her boyfriend.

[8] Counts 8 and 9 relate to incidents involving Ms LR, then 21 years old. Her parents were concerned about her self-esteem and wellbeing and referred her to the appellant for counselling during January 2005. The two families had a close relationship and LR regarded the appellant J as a father figure and a person to whom she could talk about anything.

Mhlantla JA

On the day in question the appellant arrived at LR's parental home for A the counselling session after he had telephoned her. As with the other complainants, the appellant behaved oddly. He began with lifting LR's skirt and went on to rub her thighs and then touched her vagina. Subsequently he put his hands inside her bra and looked at her breasts. He then asked her to take a shower and stated that he would choose B underwear for her. After she had had a shower, he asked her about her sexual relationship. LR testified that she felt...