S v Van Helsdingen

• Jurisdiction: South Africa
• Judge: Koen J and Nkosi J
• Judgment Date: 17 August 2020
• Docket Number: AR566/18
• Hearing Date: 07 August 2020
• Court: KwaZulu-Natal Division, Pietermaritzburg
• Citation: 2020 JDR 1607 (KZP)

Koen J (Nkosi J concurring):

[1]

The appellant was charged with 1 225 counts of contravening various provisions of the Criminal Law (Sexual Offences and Related Matters) Amendment Act [1] (the Act)

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Koen J (Nkosi J concurring)

and the Films and Publications Act [2] in the Regional Court, at Newcastle. He was convicted of the following counts:

Counts 1 and 2:

Contravening s 15(1) of the Act – having consensual sexual intercourse with a complainant who was under the age of 16 but older than 12 years.

Counts 6 and 7:

Contravening s 18(2)(a) of the Act – encouraging, enabling, instructing or persuading a child to perform a sexual act.

Counts 29 and 30:

Contravening s 21(3) read with s 55(c) of the Act – aiding abetting, inducing or inciting, instigating, instructing, commanding, counselling or procuring a child to commit a sexual offence by taking nude photographs of other children.

Counts 31 to 380:

Contravening s 24B(1)(a) of the Films and Publications Act – possession of images that contained child pornography.

He was acquitted of all the remaining counts.

[2]

Counts 1 and 2, counts 6, 7, 29 and 30, and counts 31 to 380 were in each instance taken together for the purpose of sentence and the appellant was in respect of each such combination sentenced to a period of imprisonment of 10 tears. The sentences on counts 1, 2, 6, 7, 29 and 30 and 5 years of the sentence in respect of counts 31 to 380 were ordered to be served concurrently, resulting in an effective period of imprisonment of 15 years.

[3]

The appellant appeals against his aforesaid convictions and the sentences imposed with the leave of the trial court. No cross appeal was lodged by the State in respect of the appellant's acquittal on the remaining counts.

[4]

The counts on which he was convicted are considered seriatim.

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Koen J (Nkosi J concurring)

Counts 1 and 2

[5]

The charge sheet alleged that the appellant contravened s 15(1) of the Act in that during or about May 2014 and at Newcastle he unlawfully and intentionally had consensual sexual intercourse with AW, [3] who was under the age of 16 but older than 12 years, being 13 years old.

[6]

Section 15(1) of the Act provides:

'Acts of consensual sexual penetration with certain children (statutory rape) – (1) A person ("A") who commits an act of sexual penetration with a child ("B") who is 12 years of age or older but under the age of 16 years is, despite the consent of B to the commission of such an act, guilty of the offence of having committed an act of consensual sexual penetration with a child, unless A, at the time of the alleged commission of such an act, was

(a)

12 years of age or older but under the age of 16 years; or

(b)

either 16 or 17 years of age and the age difference between A and B was not more than two years.'

Section 56(2) of the Act provides:

'Whenever an accused person is charged with an offence under

(a)

section 15 or 16, it is, subject to subsection (3), a valid defence to such a charge to contend that the child deceived the accused person into believing that he or she was 16 years or older at the time of the alleged commission of the offence and the accused person reasonably believed that the child was 16 years or older; . . .'

[7]

Although s 15(1) does not refer to intention, the charge sheet alleged that the appellant had acted intentionally. Intention is undoubtedly an essential element of the offence. Snyman in his book Criminal Law [4] states that:

'It is submitted that, although intention is not specifically mentioned in the definition as an element of the crime, it is nevertheless impliedly required in the words "and the accused person reasonably believed that the child was 16 years or older" in section 56(2)(a)'.

The learned author continues: [5]

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Koen J (Nkosi J concurring)

'Furthermore, much depends upon how the courts will interpret the word "deceive" as it appears in the wording of the first special defence in section 56(2)(a). A wide interpretation of this word is preferable, because such an interpretation will enable the courts to reach a conclusion largely compatible with the general principles applying to intention, and more particularly of X's knowledge. By a wide interpretation is meant an interpretation which does not limit the word "deception" to active, express deception, but which includes implied deception, that is, deception by conduct. It is also submitted that "deceive" ought to be interpreted in such a way that Y need not necessarily consciously or intentionally have deceived X.'

[8]

It was common cause in respect of these two counts that the appellant and AW had consensual sexual intercourse at the appellant's home and the home of a Mrs 'Tannie Chienie' Ramos (a lady AW apparently used to stay with during some weekends when she was away from the children's home where she ordinarily resided), [6] and that AW was born on 26 July 2000, which would mean that she was 14 years and 3 months (not 13 years as the charge sheet alleged) old at the time that the appellant had sexual intercourse with her on 2 October 2014. In the appellant's section 115 statement he alleged that he 'was not aware that she was under the age of sixteen'. This is accordingly the only issue for determination in respect of counts 1 and 2. On the authority of Snyman above, the question more specifically, is whether the State discharged the onus of proving beyond a reasonable doubt that the appellant could not reasonably have believed that AW was older than 16 years at the time the sexual intercourse occurred.

[9]

The evidence of AW included inter alia the following: the appellant 'went out' with her second youngest sister, Adelina, since 2009 when she (AW) would have been about 9, almost 10, years old, thus that the appellant knew her from then, that is for some 5 years by the time they first had consensual sexual intercourse; they started like 'friends with benefits'; she told the appellant her age; the appellant felt that she was too young for him; she placed a post on her Facebook page that she only wanted boyfriends, sex and

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Koen J (Nkosi J concurring)

money; aunty Chienie knew she (AW) was 'addicted to sex' and took naked photographs of her in the bath and other explicit photographs on a bed; these photographs were forwarded by aunty Chienie to AW and she (AW) in turn forwarded them to the appellant; the appellant sent AW a photograph showing his penis; she told the appellant she had a boyfriend; she told the appellant that she was once engaged; she was pregnant and required an abortion otherwise her baby would be taken away; she sent the appellant a photo of her child, which she said by then was able to walk, with the child's father, Sheldon Nel.

[10]

During cross examination AW confirmed the following: her Facebook page recorded that she is addicted to sex and that she gets people into trouble and tells lies; she has a friend, Brenda van Eeden (who is 25 years old); from age 13 she conducted herself like a grown up and as a person older than her age; she did not dispute the appellant's version that he first met her family because of his relationship with her sister in 2012/2013 (when she would have been 12 to 13 years old, and not in 2009 as she had testified initially); she and the appellant did not know each other well before 28 March 2014; she visits her boyfriend at night and on 6 September 2012 she was with her fiancé; she was no longer a virgin; she was pregnant; she had two years left at school, a trade school, Tugela (where learners may apparently remain until age 21); she had a baby which was already walking with her former boyfriend Sheldon Nel; she agreed that she looked a lot older than other girls of 15 years (her age at the time she testified); she arrived at court with her hair blow dried, with earrings, wearing make-up, lipstick and her nails painted; she agreed that at the time she and the appellant had intercourse people could easily have believed that she was 18 or 19 years old; and their first consensual sexual intercourse occurred after they had arranged to meet and not because this was set up by the appellant.

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Koen J (Nkosi J concurring)

[11]

The appellant in his testimony added: he did not know that AW was under the age of 16 years; he did not ask her how old she was and she had not told him; on Facebook she mentioned she had two years left in school, which, on his calculation, would place her in grade 11 and make her approximately 17 years old.

[12]

The learned magistrate did not record any personal observation as to the appearance of AW. Presumably, if his observations of her did not accord with her concession that she looked a lot older than other girls of 15 years at the time when she testified, he would have said so. He concluded that although AW was willing to lie about inter alia the fact that she was pregnant, and other matters, she was 'an honest witness' and that 'quite frankly' she had no choice but to tell the truth as '(h)er whole life was laid bare in the messages that were produced in court'. As regards the appellant, the learned magistrate said that to describe him as a pathetic witness 'would be complimenting him'. The magistrate said that he did not believe the appellant when he said he did not know AW's age; the appellant knew her from 'before she turned 14'; the appellant's explanation that it would be rude to ask her age was ridiculous; and that the appellant knew her age.

[13]

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