S v Pretorius
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | TA Maumela J and PD Phahlane AJ |
| Judgment Date | 05 October 2021 |
| Court | North Gauteng High Court, Pretoria |
| Hearing Date | 13 February 2020 |
| Docket Number | A 526/2017 |
Maumela J:
This is an application brought in terms of Section 19 of the Superior Courts Act [1] . The applicant is Wouter Pretorius, a male who was 64 years of age at the time he was arraigned.
THE CHARGE:
Before the Regional Court for the District of North-West, sitting in Potchefstroom, the Applicant, who was legally represented throughout the trial, was charged with the offence of: Indecent Assault, read with the provisions of Section 51 (2) (b) of the Criminal Law Amendment Act 1997: Act No 105 of 1997 - CLAA.
THE ALLEGATIONS.
The allegations against the Applicant are that upon or about October 2004 and at or near Witpoort Farm in Ventersdorp in the Regional Division of North-West, the Applicant did unlawfully and intentionally commit an assault of an indecent nature upon Ilone Van der Westhuizen, a female aged 10, by touching her private parts and inserting his finger into her vagina.
The Applicant pleaded Not Guilty to the charge. He opted to exercise his right to remain silent and therefore did not disclose his basis of the defence. Evidence was led by both the state and the defence. At the close of evidence both sides addressed court on verdict. The court a quo accepted the version of the state and rejected that of the Applicant. Consequently, the Applicant was convicted as charged. He
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was dully sentenced. As indicated above, the applicant contests his conviction of Indecent Assault, read with the provisions of Section 51 (2) (b) of the Criminal Law Amendment Act 1997: Act No 105 of 1997 – CLAA.
BACKGROUND.
The Applicant is a husband to the aunt of the mother to the complainant in this case. It is worth noting that while the names of the Applicant are Wouter Pretorius; the name of his son is Wouter Pretorius Junior. Wouter Pretorius Junior has twin-daughters who are therefore cousins to the complainant and her twin-sister. Over school-holidays, the complainant and her twin-sister would be taken over to go visiting at the farm where the Applicant stays.
Relevant to this case, after one such visit, the complainant, llone Van der Westhuizen, made allegations against the Applicant to the effect that on an occasion when she and her twin-sister went visiting at the farm where the Applicants stays, in the night while she, her twin- sister, her aunt and the Applicant slept on the bed, the Applicant assaulted her indecently. She claims that she was 10 years of age at the time when the Applicant subject her to the sexual assault. She was 19 years of age at the time she testified before the court a quo.
As indicated above, in these proceedings, the Applicant applies for permission to advance additional evidence. This is an additional effort on the part of the Applicant to challenge the verdict arrived at before him by the court a quo. The application is opposed.
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EVIDENCE.
Before the court a quo, the complainant, llone Van der Westhuizen was the first witness to be called by the state. Under oath she told court that she stays at Eland Street No 48, Miederpark, Potchefstroom. She said that in October 2004, she and her younger sister Sharon went on a holiday to Witpoort farm, at the place of Wouter Pretorius Senior. She said that at that time, she was 10 years of age. She already knew the Applicant, Wouter Pretorius who is a husband to her mother's sister. She told court that whenever she and her sister visited the place, they used to sleep in the same bed with her and her husband; the Applicant. She would sleep right next to her sister on the right side of the bed.
She told court that one day, during the night, the Applicant woke up and walked around the bed to the side at which she was sleeping and he slept next to her. She said that later, she woke up to find that the Applicant had his hand inside her panties. She said that the Applicant had actually inserted his finger inside her private parts, namely inside her vagina. On discovering this, she became uncomfortable. At that time the Applicant realized that she has woken up from her sleep and he immediately stopped what he was doing, namely inserting his hand inside her panties and his finger inside her private parts, (vagina).
The witness said that thereafter, nothing much happened further until the holidays were over and she and her sister returned home to Miederpark in Potchefstroom. She said that this incident made her to be fearful and as a result, she told her sister that she no longer wants
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to sleep in the Applicant's bed. She and her sister then slept in the spare room. She said that after this incident, she started suffering nightmares. Her sister would try to shake her awake whenever she suffered nightmares and she would be much fearful.
The witness said that one night, while she and her sister were asleep in the spare room, they heard footfalls of someone walking in the house. The person was walking towards the spare room where they were sleeping and she and her sister pretended to be fast asleep. She stated that the Applicant then came into the room where they were sleeping and he walked around their bed. She said that the Applicant went towards the wardrobes and he pretended as if he was looking for something. When the Applicant realized that she and her sister were not fast asleep, he left the room in which they were sleeping.
This witness told court that after she and her sister had returned home, she told her sister that she no longer wants to visit the Applicant's home again. However, she told her sister not to divulge what she told her, namely that she no longer wanted to go on visits to the Applicants place of abode. She asked her sister not to tell anyone that she is no longer interested in going to the Applicant 's place for a visit. She stated that over the next school holidays, she had intended to resist going to the Applicant's home but her wish did not materialize and she and her sister ended up going to the Applicant's place again.
The witness stated that the Applicant's son is known as Wouter Pretorius Junior and he has two daughters who are her twin-cousins.
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It means therefore that the Applicant is a grandfather to her and her twin-sister, much as he is also grandfather to the twin-daughters of Wouter Pretorius Junior. In that way, the twin-daughters of Wouter Pretorius Junior are her cousins. The witness stated that on this occasion when she and her twin-sister were back visiting over school-holidays, she suggested to her twin-sister that the two of them should reveal the misdemeanors which the Applicant had been up to when last they had come visiting; meaning that she suggested to his sister that the two of them should reveal that on the last time when they had come visiting over the school-holidays, as they slept, the Applicant inserted his hand into her panties; much as he inserted his finger into her vagina.
The witness said that once she and her twin sister were back at home, she related to her sister everything that happened whilst they were visiting the Applicant's home. In that regard she related to her sister that when they were at the Applicant's home, there was a night on which their aunt, her husband and the two of them were asleep on one bed and their aunt's husband inserted his hand into her panties, much as he inserted his finger into her vagina. She explained to her sister that is the reason why she had grown afraid of sleeping on the bed on which their aunt and her husband. She told her sister not to tell anyone about it. Her sister promised to keep their secret.
The witness stated that on the following December, she and her twin-sister did go again to the Applicant's home at the farm together with the twins born of the Applicant's son. She said that as agreed between her and her twin-sister, the two of them told their two cousins what happened when on the previous occasion when they visited at
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that house. They asked their cousins not to divulge what they told them namely what the Applicant did to the complainant when last she and her sister visited at that Applicant's home. She told court that on this second occasion when she and her twin-sister visited at the Applicant's home, the Applicant approached her at her grandmother's home and asked her whether she told anyone about what happened when she and her sister visited at that house on the last occasion.
She said that she was afraid but she told the Applicant that she did divulge what happened between her and the Applicant on the previous occasion when she and her twin-sister went visiting at the Applicant's home. She said that before the incident in issue in this case relations between her and the Applicant were good. However, after the incident, she always avoided him.
The state then called Sharon van der Westhuizen who is a sister to the complainant. In her testimony, she confirmed that she and her sister visited the farm way Applicant states over the October 2004 holydays. She confirmed that when they were there, they would sleep in the same bed with the Applicant and his wife. They would be four on the bed. She further told court that before going to sleep, the Applicant used to tickle them. She confirmed that her sister told her that on the previous night, she woke up to find the Applicant having inserted his hand into her panties and a finger into her private parts, (her vagina).
The complainant's told her that she does not want to sleep in the same bed together with the Applicant and his wife. As a result, she and her sister slept in the spare room. This witness told court that the
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The aspect of the statement labeled A1 was raised. It was argued that A1 was...
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