S v Mavhungu

• Jurisdiction: South Africa
• Judge: Le Roux CJ and Van Der Spuy AJ
• Judgment Date: 13 July 1987
• Citation: 1988 (3) SA 67 (V)
• Hearing Date: 13 July 1987
• Court: Venda Supreme Court

Le Roux CJ:

The accused, a 24 year old male, was charged with two contraventions of s 15(1) of the Preservation of Good Morals Act 14 of 1980 (V) in that he had sexual intercourse with girls under 16 years of age. He pleaded not guilty but was found guilty on both counts and sentenced to undergo two years' imprisonment, both counts being taken J together for that purpose.

Le Roux CJ

A When the matter came before me on review, I requested the magistrate to indicate on what evidence he had based his finding that the two complainants were under the age of 16 years, as there appeared to be very little on record regarding their age apart from a statement in the charge sheet that both were 'approximately' nine years of age and a statement by one complainant that she was nine years old. Although their B mothers were called as witnesses, they were not asked what the ages of the complainants were or when they were born.

The magistrate's reply to my query amounts to this: that although the accused pleaded not guilty he never contested the alleged age of the complainants as stated in the charge sheets, nor did he direct any questions to the complainants or their mothers during the trial which C might have given the slightest indication of disagreement with the State's allegation that both were approximately nine years old. Furthermore, says the magistrate, the complainants were so obviously under the age of 16 years that no one in court even gave it a thought that their age might become a dispute in the case. That is why he D admonished them to speak the truth in terms of s 164 of the Criminal Procedure Act 51 of 1977 rather than to impose the oath when they gave evidence.

The Attorney-General, who has favoured me with his opinion, submits that the medical reports which were handed in in respect of the complainants afford prima facie proof in terms of s 212(4) of Act 51 of 1977 of the age of the girls which becomes conclusive if not challenged. E In any event, if insufficient evidence of the age of the complainants was before court, the presiding officer could have estimated their ages in terms of s 337 of the Act.

In terms of s 15(1)(a) of the Preservation of Good Morals Act 14 of 1980, the proof of the age of the girl in a charge of this nature forms F part of the onus resting on the State and is an indispensable element of the offence. It means that it is a fact that must be proved beyond a reasonable doubt before a...